HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raymond MacKinnon

Applicant

-and-

Celtech Plastics Ltd. and Nahum Williams

Respondents

DECISION

Adjudicator: Judith Keene

Date: December 20, 2012

Citation: 2012 HRTO 2372

Indexed as: MacKinnon v. Celtech Plastics Ltd.

APPEARANCES

Raymond MacKinnon, Applicant

Self-represented

Introduction

1This is a decision in respect of an Application filed on June 30, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age.

2My decision in this Application was reached without the participation of the respondents, who were given notice of the Application (details are set out below) but have not responded to the Application. I have concluded that the applicant has established a breach of s. 5 of the Code. My reasons are set out below.

Procedural history

3On November 3, 2010, the Tribunal issued a Notice of Application to the respondents. The respondents were advised that a Response must be filed with the Tribunal not later than December 8, 2010. The respondents did not file a Response.

4In an Interim Decision, dated January 7, 2011, (2011 HRTO 62), the Tribunal noted that neither respondent filed a Response to the Application. The Tribunal directed the respondents to file a Response within 10 days of the date of the Interim Decision, together with an explanation of why a Response was not filed in accordance with the Notice of Application. The Tribunal advised the respondents that if a Response was not received, the Tribunal might proceed without further notice to the respondents and might take and or all of the steps set out in Rule 5.5 of the Tribunal’s Rules of Practice, which provides as follows:

5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal

5No Response was received from the respondents. A Case Assessment Direction (“CAD”) was issued by the Tribunal on October 5, 2011, in which the respondents were again directed to file a Response within 10 days of the date of the CAD, together with an explanation of why a Response was not filed in accordance with the Notice of Application. The CAD also again warned the respondents that if a Response was not received within 10 days, the Tribunal might proceed without further notice to the respondents and may take any or all of the steps set out in Rule 5.5 of the Tribunal’s Rules.

6No Response was received from the respondents. By Interim Decision dated December 23, 2011 (2011 HRTO 2293), the Tribunal ruled that the respondents had waived all rights to notice or participation in these proceedings and were further deemed to have accepted all of the allegations set out in the Application. The applicant was asked to submit any additional documents or materials he wished the Tribunal to consider in deciding this Application, and to advise the Tribunal whether or not he wished to make oral submissions via teleconference. A brief teleconference was held on October 31, 2012. I asked some questions to clarify some ambiguities in the narrative given by the applicant (who is not represented). The applicant added some detail relevant to the chronology of events set out in the Application, and to the remedial Order, as noted below.

FACTS

7The applicant alleges that, on his return to work after a lay-off, he was assigned an unusually heavy workload and harassed by his foreman to the point that he quit. He states that he was subjected to this adverse treatment because the respondents wanted to terminate his employment without paying the amount of severance pay to which the applicant would have been entitled as an employee with 35 years’ seniority. At the date on which he left his employment he was close to his 68^th birthday; he asserts that the respondents breached s. 5 of the Code on the basis of age. The allegations in the Application, which have been deemed to be accepted by the respondents, can be summarized as follows.

8The applicant worked for Celtech Plastics Ltd., the corporate respondent, for approximately 35 years (from 1975 to April 26, 2010) as a machine operator. He stated that, at his level of expertise and seniority, he was paid between $60,000 and $65,000 a year, depending on hours worked. In mid-2009, the applicant was laid off for approximately 5½ months. In early 2010, Kevin Drodwers telephoned him to discuss when he could come back to work. Mr. Drodwers was described by the applicant as “the new boss”, but his status within the corporate respondent is not clear; he may be the owner of the corporate respondent, or simply a member of senior management.

9The applicant told Mr. Drodwers that he could come back on February 28, 2010, and asked how many hours Mr. Drodwers wanted. Mr. Drodwers requested “all the hours he could get”.

10On his return to work, co-workers told the applicant that the company had tried to hire less-experienced machine operators to replace him, but that they hadn’t worked out because they could not do the job.

11The applicant discovered that a worker junior to him, the personal respondent, had been promoted to Foreman on the day shift during the time he had been laid off. From the time the applicant returned to work, the personal respondent assigned the applicant particularly heavy work, while at the same time criticizing his performance “telling me that I was sloppy and did not clean up proper”. On the applicant’s first day back to work he was willing to work eight hours, but ten hours were required.

12The applicant says that, up to the day he quit, he was frequently yelled at by the personal respondent; he described his treatment by the personal respondent generally as “harassment”. His Application implies, and he confirmed at the teleconference, that he was being held to an unreasonably high standard in respect of clean-up; the Application states that “it would take four men to clean this plant”.

13After one particularly heavy day of work, the applicant had an episode of heavy rectal bleeding after he got home. He visited his doctor, who wrote a note to tell his employer that he was under treatment and could not work until the problem was resolved. After a week on sick leave, the applicant returned to work.

14On his return, the applicant was warned by a co-worker that he was “in trouble”. The co-worker indicated that the respondents had been contemplating terminating the employment of their plant manager, who had 25 years’ service with the company, but had decided not to do so after consultation with a lawyer because of worry about the amount of the severance pay to which a 25-year employee would be entitled. The applicant was told by co-workers that the personal respondent would likely try to get rid of him by making working conditions so difficult that he would quit, so as to avoid the need for severance pay.

15In the days after the applicant returned to work from his medical leave, the personal respondent “started again”, assigning a heavy workload, criticizing the applicant's performance and frequently yelling at him. The personal respondent “stated again that he was going to complain to [Mr. Drodwers]. Two days later they called me into [Mr. Drodwers’] office” and showed him “a small box of scrap” which the personal respondent alleged he had left on the floor. The applicant quit his employment on April 26, 2010.

ANALYSIS

16The evidentiary burden is on the applicant to establish that, on a balance of probabilities, a prima facie case of discrimination exists (Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 119). In Ontario (Human Rights Commission) v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 28, a prima facie case was described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent. More recently, in Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court stated:

…to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the [area]; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. (at para. 33)

17Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory. Alternatively, the respondent may raise a statutory defence, to demonstrate on a balance of probabilities that the applicant’s allegations do not amount to discrimination (see Moore, above; Chau v. Olymel S.E.C.\L.P., 2009 HRTO 1386).

18Direct evidence of discrimination, such as testimony from a witness to discriminatory conduct, is not necessary to establish a breach of the Code. The applicant may rely on circumstantial evidence, which may include evidence of actions or omissions on the part of the respondent that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to provide evidence of discrimination. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. Evidence must always be sufficiently clear, convincing and cogent to satisfy the “balance of probabilities” test stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53. In that case, the Supreme Court reaffirmed the nature of the civil standard of proof, and discussed the difficulties inherent in a determination as to whether the testimony of one party is more reliable than that of another. The Court ruled that, where proof is on a balance of probabilities, the trier of fact must not consider the witness’s evidence in isolation, but should consider the totality of the evidence.

19As noted in Matthews v. C.A.W. Local 1285, 2010 HRTO 1116 at para. 13:

It is not difficult to establish a prima facie case of discrimination. The Tribunal does not hold applicants to an exacting standard of proof at this stage of the proceedings, given the Tribunal’s access-to-justice mandate, and the longstanding interpretive principle of giving “large and liberal” meaning to human rights legislation: Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (S.C.C.), [1987] 1 S.C.R. 1114.

I note also that in many cases, evidence relevant to a claim of discrimination is in the hands of the respondent rather than those of the applicant.

20In this case, of course, the respondent has accepted the factual allegations and has offered no evidence at all. In these circumstances, the only question is whether the applicant has established a prima facie case.

21The applicant has alleged, and the respondent has accepted, that his employers attempted to replace him with less-experienced workers. He also alleges that at age 67 and with 35 years of employment with the respondent, he was recalled from lay-off, subjected to an unusually heavy workload, and held to an unreasonably high standard in respect of clean-up. He was subjected a level of surveillance by his foreman that included yelling and was harassing in nature. He submits that the motivation behind these actions was to make work so unpleasant that he would quit, and that the corporate respondent would save money by replacing him with less-experienced workers who would be paid a lower salary, and by avoiding the requirement to provide severance pay to an employee with considerable seniority.

22I am mindful of the fact that the applicant’s allegations as to both the corporate respondent’s effort to replace him and the respondents’ motivation for creating unpleasant working conditions for him are based on alleged remarks by co-workers, as well as the applicant’s own supposition. Hearsay evidence, while admissible before the Tribunal, is considered only with caution springing from the fact that the authors of the alleged remarks have not been examined or subjected to cross-examination.

23Having said the above, both of the applicant’s broad allegations, that his employers attempted to replace him with less experienced workers and that they created unpleasant working conditions for him, have gone uncontested by the respondents, and are deemed to have been accepted by them. Absent strong evidence as to the respondents’ motivation, is it reasonable to conclude that this adverse treatment established by the applicant is connected to the applicant’s age?

24Obviously, seniority in a workplace is based on years of service rather than age. However, while a small number of years of service may have little or no connection to age, a high number of years of service has a strong connection to age; it is obvious that an employee who has accrued 35 years of service will predictably be over 50. It is also true, and relevant to the applicant’s claim, that years of experience at a particular type of work usually produce some increase in pay, at least to a point at which increases stop. It is not unreasonable to accept, as a rebuttable assumption, that an employee with 35 years of service in a position will be close to if not at the top of the pay range for that position. In O'Brien v. Ontario Hydro (1981), 1981 CanLII 4316 (ON HRT), 2 CHRR D/504 (Ont. Bd. Inq.), the Board of Inquiry considered with approval the reasoning in Marshall v. Arlene Knitwear, Inc., 454 F. Supp. 715 (1978):

In that case, a 62-year-old designer was dismissed and the Court found that the reason for dismissal was not "age" per se, but rather was an economic reason directly related to age. Because of seniority, the Complainant had a higher salary than any of the other designers. Also, she was dismissed before her pension benefits vested, so the employer was able to reduce the amount of its contribution to the plan. Neaker J. held:

The evidence compels the conclusion that the savings in salary and the unpaid pension benefits accruing to defendants as a result of Feitis' discharge were the controlling economic factors behind her termination. Since such economic factors are directly related to age ... reliance on them to discharge Feitis constitutes age discrimination. (p. 730)

25There have been several more recent decisions of this Tribunal that have taken into account proxies for the personal characteristics listed as grounds of discrimination. In the employment context, the situation addressed is often a competition for a job or for promotion that sets out requirements, qualifications or considerations that have an alleged adverse impact based on age. See for example Tearne v. Windsor (City), 2011 HRTO 2294 (loss of strength and endurance accepted as age-related), and Waters v. Toronto District School Board, 2011 HRTO 2220 (College of Teachers’ Certificate of Qualifications accepted as only an “imprecise proxy” for age).

26Had the respondents filed a Response to the Application, they might have made rebutting submissions in respect of both facts alleged and alleged motivation. Based on the facts and submissions before me, I find that the applicant’s submission that his employers attempted to replace him and treated him adversely in the workplace because of his seniority has sufficient connection to the ground of age.

27For the reasons above, I find that the applicant has established a breach of s. 5 of the Code.

REMEDY ISSUES

28Section 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the Application, it may make the following orders:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

29In addition to addressing a successful applicant’s request for order(s), the Tribunal may make an order that has not been requested by the applicant: Payne v. Otsuka Pharmaceutical Co. et al (2002), 2002 CanLII 46516 (ON HRT), 44 CHRR D/203; Lepofsky v. Toronto Transit Commission, 2007 HRTO 41.

30In respect of monetary compensation, the applicant, in his Application, requested $27,000. During the teleconference, I asked him how he came to that figure. He said that he had no idea what to put in the relevant space on the Application, but suggested that the sum he entered was “fair” compensation after close to 35 years of employment with the respondents.

31Pursuant to section 45.2 (1), above, an applicant who proves a breach of section 5 of the Code is entitled to compensation for wage loss arising out of the discriminatory act. In Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 CHRR D/6347 (Ont. C.A.), the Ontario Court of Appeal rejected an argument that a wage loss award ordered by a Board of Inquiry under the Code should be no larger than an award for unjust dismissal. The Court of Appeal unanimously found that the purpose of “compensation” is to place the complainant in the position she would have been in had the discrimination not occurred. Most decisions of the Tribunal have specifically followed the direction of the Court of Appeal that the goal of “compensation” is that the successful applicant is to be placed in the position that he or she would have been in but for the discrimination; see for example Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 CHRR D/36; McLean v. DY 4 Systems, 2010 HRTO 1107; Crocker v. Ontario (Community and Social Services), 2012 HRTO 736; Garrie v. Janus Joan Inc., 2012 HRTO 68; Munoz v. Roman Catholic Episcopal Corp., 2011 HRTO 1434; Knibbs v. Brant Artillery Gunners Club Inc., 2011 HRTO 1032; Dewartz v. Fifty's Restaurant, 2010 HRTO 1828; and Dhamrait v. JVI Canada, 2010 HRTO 1085.

32In Heintz v. Christian Horizons, 2008 HRTO 22 (overturned in part: Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105, but not in respect of this issue), the Tribunal noted that:

(…) the Code provides the Tribunal with considerable discretion in fashioning a remedy and the Courts have upheld remedial orders that are both expansive and novel. (See for example Canadian National Railway v. Canada (Human Rights Commission), 1987 CanLII 109 (S.C.C.), [1987] 1 S.C.R. 1114 “Action Travail des Femmes”) But in all cases, the remedy must flow from the violation that has been found and must be designed to further the remedial purposes of the Code… When assessing wage loss, the principle of “reasonable notice” used in wrongful dismissal actions does not apply, though where reinstatement is not requested or ordered, Tribunals must assess what is reasonable in the circumstances. The Tribunal must determine what the complainant would have earned if the discrimination had not occurred. (Smith v. Ontario Human Rights Commission, 2005 CanLII 2811 (ON SCDC), [2005] O.J. No. 377, para. 28; Gohm, supra, paras. 127-131)

33The applicant stated that his hourly rate was $26 and that in many years he earned $60,000 or more. As the applicant’s hourly rate was noted in his Application, it is among the facts deemed to have been accepted by the respondents.

34The applicant has indicated that he has sought other work but has been unsuccessful. At the teleconference, the applicant said that he would have continued working for the respondents for seven or eight years, assuming no serious health problems.

35The applicant is unrepresented and, not surprisingly, unaware of the Tribunal’s jurisdiction in respect of compensation where there has been a breach of the Code, or of what evidence he should put forward to establish a claim to compensation. I do not at this stage have enough evidence to be sufficiently clear about the connection of wage/employment benefits loss to the breach of the Code that has been established.

36The applicant indicated that Kevin Drodwers, “the new boss”, was aware that his supervisor was extremely critical of his performance, and it appears that Mr. Drodwers was present at his last acrimonious meeting with his supervisor. However, the applicant was not dismissed from his employment; he admits that he quit. Before an order compensating for lost wages/benefits can be made, the Tribunal requires evidence from the applicant that could lead to the conclusion that, in all the circumstances, resigning was a reasonable response. If he wishes to pursue a claim for compensation for wage/benefits loss, the applicant must provide evidence as to why quitting his employment appeared to him to be reasonable in the circumstances. He will be afforded an opportunity to do this; see the Order below.

37Section 45.2(1)1 encompasses monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code.

38In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the principles on which compensation for injury to dignity, feelings and self-respect are awarded, and noted the importance of fairness to both applicants and respondents. The Tribunal has applied a degree of objectivity in assessing the amount of compensation; Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. At the same time it has recognized that the actual impact of the discrimination on the applicant is an important consideration in assessing compensation. In addition, the Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), (2008) 295 DLR (4^th) 425 (Ont. Sup. Ct.)

39In Sanford v. Koop, 2005 HRTO 53, the Tribunal summarized the following factors (not a closed list) frequently used in assessing the appropriate quantum of general damages for the violation of the right to be free from discrimination:

• Humiliation experienced by the complainant

• Hurt feelings experienced by the complainant

• A complainant’s loss of self-respect

• A complainant’s loss of dignity

• A complainant’s loss of self-esteem

• A complainant’s loss of confidence

• The experience of victimization

• Vulnerability of the complainant

• The seriousness, frequency and duration of the offensive treatment

40In considering an order to compensate for intangible loss in this case, I focus on the effect on the applicant of the adverse conditions created by the respondents on a daily basis in the last weeks of the applicant’s employment, from February 28 to April 26, 2010. The applicant did not strike me as a person who exaggerated the impact of events; however, he stated that from the date of his return from layoff, “I started to take more “nerve” pills (which he later identified as citalopram) and “sleeping” pills (lorazepam). Every day I hated to go back there.” When asked if he felt differently after he quit, he stated that his doctor had continued the previous prescriptions and added “another one Cymbalta 60 mg because my nerves got worse after I quit--when you get my age, who wants you?” He said that he felt “bad—my heart and soul went into that company”, and felt that he had been treated unfairly. He was still taking this medication at the time of the teleconference.

41Applying the above-noted principles and having regard to the evidence, my view is that $25,000 to $30,000 would be the appropriate range for damages for intangible loss. The applicant has requested $27,000.00, and this is an appropriate amount to compensate the applicant for the injury to dignity, feelings and self-respect occasioned by the treatment the applicant suffered in the workplace prior to the date he left. There is no evidence that the personal respondent was acting other than in the usual course of his employment; the corporate and personal respondent are jointly and severally liable for this amount.

42Under s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, pre-judgment interest runs from the "date the cause of action arose". Based on the evidence, this cause of action may be seen to have arisen when the applicant first began experiencing age-related adverse working conditions, which on the evidence is April 1, 2010. A link to the relevant rates of pre-judgment interest is provided on the Tribunal’s website, at the section on “The Law and Policies”.

ORDER

43The Tribunal makes the following order:

a) Within 30 days of this Decision, the respondents shall pay $27,000 to the applicant for violation of his inherent right to be free from discrimination, and for injury to his dignity. The personal and corporate respondents are jointly and severally liable to pay this amount. This award is an award in the nature of general damages for pain and suffering.

b) The respondents shall pay the applicant prejudgment interest at 0.5% in accordance with the Courts of Justice Act, on the amount set out in paragraph (a), above, from April 26, 2010.

c) In the event that the respondents fail to make the payments described in paragraphs (a) and (b) above within 30 days of the date of this Decision, the respondents shall pay post-judgment interest on any accumulated principal and interest, calculated at 3% in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Decision. The personal and corporate respondents are jointly and severally liable to pay this amount.

44If the applicant wishes to bring evidence to establish his entitlement to an order for compensation for wage/benefits loss, the applicant must contact the Registrar within thirty days of the date of this Decision so that a further conference call may be scheduled. I will remain seized on the question of compensation for wage/benefits loss.

Dated at Toronto, this 20^th day of December, 2012.

“Signed by”

Judith Keene

Vice-chair

CORRECTION

The decision released on December 20, 2012 incorrectly identified the date in respect of pre-judgement interest at paragraph 43(b) of the decision as April 1, 2010. The correct date is April 26, 2010. The error is corrected.