Vallee v. Fairweather Ltd., 2012 HRTO 325

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charlotte Vallee

Applicant

-and-

Fairweather Ltd.

Respondent

Decision on remedy

Adjudicator: Michelle Flaherty

Date: February 14, 2012

Citation: 2012 HRTO 325

Indexed as: Vallee v. Fairweather Ltd.

WRITTEN SUBMISSIONS

Charlotte Vallee, Applicant ) Self-represented

1The applicant filed an Application on July 15, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment based on disability and age.

2The respondent failed to file a Response, although it was repeatedly directed to do so. On December 2, 2011 the Tribunal issued an Interim Decision, 2011 HRTO 2170, deeming the respondent to have waived all rights to notice or participation in these proceedings and to have accepted all of the allegations set out in the Application.

3In my subsequent Decision issued January 5, 2012, 2012 HRTO 20 (the liability decision), I held that the respondent had breached the Code and that the applicant’s age and disability were factors in the respondent’s decision to eliminate her position. Based on the materials before me, however, I was unable to determine what remedy should be awarded in the circumstances. I directed the applicant to provide specific and further information to the Tribunal regarding remedy. She has now done so.

4The purpose of this Decision is to determine what remedy is appropriate in the circumstances. For the reasons that follow, the respondent is ordered to pay the applicant $15,000 as compensation for injury to her dignity, feelings and self-respect. As I set out in more detail, below, the respondent is also ordered to conduct human rights training and to pay the applicant compensation for her loss of wages and benefits.

FINDINGS OF FACT

5I made the following findings of fact at paragraph 14 of the liability decision:

a. The applicant is 58 years old. She was employed as a district sales manager by the respondent from 2009 to June 2011 and earned a salary of $80,000 per year;

b. The applicant’s work environment in 2010 was difficult and caused her stress;

c. The applicant had a disability that prevented her from working between June 2010 and June 2011;

d. The applicant states that her disability arose or was worsened because of workplace stress. However, there is no basis for me to conclude that this workplace stress or any workplace issues directly involving the applicant constituted discrimination within the meaning of the Code. While the applicant was clearly dissatisfied with the respondent’s decision-making, during the period that lead to her disability leave in June of 2010, the applicant does not allege that she was treated differently from others because of a Code-related ground;

e. When the applicant advised her superior that she required a period of medical leave, he commented that she had had a negative attitude in the past;

f. While the applicant was on disability leave, the applicant’s superior communicated to staff a message to hire only “dumb, young, and good looking” employees;

g. Beginning in 2010, the respondent was restructuring and a number of employees who worked with the applicant lost their jobs;

h. In June 2011, when the applicant attempted to return to work following her period of disability, the respondent advised her that her position had been eliminated because of restructuring;

i. When she attempted to return to work following her period of disability, the applicant’s supervisor stated that he had felt abandoned by the applicant; and

j. The respondent offered the applicant alternative employment, as an outlet store manager, which she declined as she considered it to be a demotion from her position as a district sales manager.

REMEDY

6The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provides:

(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

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.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

Remedy Requested

7In the Application, the applicant requests total monetary compensation of $196,519.53. She is seeking:

a. Two years of lost wages, for a total of $160,000;

b. $1,307.78 as reimbursement for the money she expects to spend to maintain a monthly benefits plan for one year from the date of the termination of her employment;

c. Additional lost wages in the amount of $18,385.50, which she states represents the difference between her wages and the employment insurance benefits she received in the 17 weeks following the termination of her employment;

d. Additional lost wages for seven months in the amount of $16,826.25, which the applicant states is the difference between her long-term disability benefits and the wages she would have earned had she been actively employed by the respondent; and

e. Compliance remedies, namely:

1. that all head office personnel and all managers be required to undergo human rights training;

2. that the respondent’s discriminatory hiring practice be revised and, in particular, that the policy of hiring “dumb, young, and good looking” employees be abolished; and

3. that an investigation be initiated; and

4. that the respondent not be permitted to use a restructuring process to camouflage discrimination.

8The applicant has not specifically requested compensation for injury to dignity, feelings and self-respect.

THE EVIDENCE

9Because the respondent did not participate in the proceeding, my findings are based on the Application filed by the applicant and the materials she filed as directed in the liability decision. The applicant waived her right to make oral submissions on remedy before the Tribunal.

10The applicant’s materials establish that the respondent provided her with two weeks pay in lieu of notice when her employment was terminated. The documents also establish that the respondent offered the applicant alternate employment as a store manager in Whitby. The applicant states that she does not know what salary would have been paid to her in that position. She declined the job immediately, without asking for salary information because she felt the job was not suitable: it was a demotion and accepting it would have made it difficult for her to find employment comparable to her job as a district sales manager. In her additional materials the applicant states that a former vice-president of the respondent advised her recently that a store manager would likely earn between $30,000 and $40,000 per year.

11The applicant states that she secured alternate employment as of August 8, 2011. She fully mitigated her damages as of that date: her salary in her current position is greater than what she earned with the respondent.

12The applicant states that, between the termination of her employment at the end of June 2011 and August 8, 2011, she made diligent attempts to look for work. During this short period of time, she applied to upwards of 14 positions and attended a number of interviews.

13The applicant has not provided any specific documentary evidence to support her claim for loss of benefits. In the termination letter, the respondent indicates that the applicant may elect to maintain the benefit plan. In the Application, the applicant states she paid or expected to pay $108.98 per month for 12 months to maintain the benefits plan.

DECISION

Lost Wages

14The applicant seeks an award of monetary compensation for lost income. The purpose of compensation for loss of income is to restore the applicant as far as is reasonably possible to the position that the applicant would have been in had the discriminatory acts not occurred. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.) and Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.).

15In awarding compensation for loss of income, the Tribunal considers (among other things) whether the applicant has secured other employment and whether she has, though her own mitigation efforts, been able to earn income. The purpose of compensation for loss of income is not to provide the applicant with ongoing income from a particular respondent. It is to compensate the applicant for those wage losses that could not have been avoided.

16As I have indicated, the applicant fully mitigated her lost wages within approximately seven weeks of the termination of her employment. For this reason, she is not entitled to compensation for lost wages beyond that seven week period.

17Assessing whether or not the applicant should be compensated for lost wages for the seven weeks following the termination of her employment presents some difficulty. I must determine whether the duty to mitigate lost wages meant that the applicant should have considered the job offered to her by the respondent.

18The applicant has been able to provide only indirect and uncertain evidence of the salary that might have been offered to her. I accept that the applicant has no better information. She felt the job offer was so beneath her skills that she did not make any inquiries.

19The applicant has not alleged (and there is no basis to conclude) that the discrimination that was the subject-matter of this Application would have continued in the store manager position or that this was a factor in the applicant’s decision not to accept the job.

20I appreciate that the circumstances were difficult for the applicant and I accept that the job offered to her was a demotion. However, I cannot accept that the applicant met her duty to mitigate her losses for the seven weeks in question given that she made no inquiries about the terms and conditions of work, including the salary, and she dismissed the job offer immediately and out of hand.

21Ultimately, this appears to have been the right choice for the applicant: she secured a higher-earning job very quickly after her employment was terminated. I am not concluding that the applicant ought to have accepted the respondent’s offer. However, I am concluding that by not considering it or making even basic inquiries about it, she cannot be said to have fully met her duty to mitigate her lost wages during this period.

22Given her ability to mitigate and the fact that she received two weeks pay in lieu of notice, I find that the applicant lost wages for a period of five weeks. The applicant stated that she earned $80,000 per year, or $1,539 per week.

23In all of the circumstances, I am prepared to accept that the applicant would have earned approximately $40,000 per year (or $769.23 per week) as a store manager. It is reasonable to conclude that the salary in this position would have been less than her previous salary. Further, the applicant’s evidence concerning salary, while indirect and uncertain, is uncontradicted.

24Accordingly, I find that $3,847.50 is an appropriate award for loss of income. This amount represents one half of the applicant’s weekly wages for the seven week period. The applicant’s weekly wages have been discounted to account for the salary that she could have earned as a store manager.

25The applicant has also requested compensation for loss of wages during a medical leave, which she took prior to the termination of her employment. In the liability decision, I found that there was no basis to conclude that the applicant’s workplace issues leading up to her period of medical leave constituted discrimination within the meaning of the Code. Given this conclusion, it is not appropriate to award damages for loss of income as a result of the applicant’s medical leave.

Injury to Dignity, Feelings and Self-Respect

26Although the applicant has not specifically requested compensation for injury to dignity, feelings, and self-respect, I find that it is appropriate to order an award in this regard under section 45.2 of the Code. Injury to dignity, feelings, and self-respect is presumed to flow from an act of discrimination and, given the information contained in the Application, I am satisfied that such an award is warranted in the circumstances.

27In the Application, the applicant states that she was upset and angered by the termination of her employment. She states that she felt that her hard work was not valued and that she was treated differently because she had been ill and because she did not fit the respondent’s image.

28The applicant also describes how she felt leading up to and during her medical leave because of the respondent’s restructuring and given some of the decisions it made. In the liability decision, I found that there was no basis to conclude the applicant experienced discrimination prior to the termination of her employment. Therefore, I have not considered this portion of the claim in making my award.

29An award of compensation for injury to dignity, feelings and self-respect recognizes the inherent value of the right to be free from discrimination and the experience of victimization. The Ontario Divisional Court has recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA Group Consultants Inc., ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, at para. 153.

30In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent awards under this heading of damages, and stated at paras. 52-54:

(…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

31Recent Tribunal decisions that have considered disability-related discrimination in the context of the termination of an applicant’s employment have generally made awards ranging from $10,000 to $45,000. See, for example, Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 ($45,000); Krieger v. Toronto Police Services Board, 2010 HRTO 1361 ($35,000); Lopetegui v. 680247 Ontario, 2009 HRTO 1248 ($20,000); Mirashrafi v. Circuit Centre, 2010 HRTO 512 ($15,000); Vetricek v. 642518 Canada, 2010 HRTO 757 ($15,000); Duliunas v. York-Med Systems, 2010 HRTO 1404 ($15,000); LeBlanc v. Syncreon, 2010 HRTO 2336 ($10,000); and Coscina v. Halton School of Equitation, 2011 HRTO 1949 ($10,000).

32In the cases where awards less than $10,000 have been made, the Tribunal found the applicant had work performance issues that contributed to the termination, only worked for the respondent for a short period of time, and/or failed to present evidence of the impact of discriminatory termination on him or her. See, for example, Quattroci v. Boz Electric Supply, 2009 HRTO 1082; Garcia v. Tri-Krete, 2009 HRTO 2181; and Buckingham-Vanderlei v. Walker, 2010 HRTO 1338.

33I have considered the Tribunal’s caselaw and the applicant’s circumstances, including the impact of the discrimination on her. I find that $15,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect in this matter.

Other Monetary Award

34The applicant has stated that it would cost her $108.98 per month to maintain her benefits plan. In the Application, she requests compensation for loss of benefits for twelve months following the termination of her employment. However, the applicant has not provided any information about whether she has, in fact, maintained her benefits plan or whether her new employer offers a comparable plan.

35Based on the material before me, and in keeping with objective of restoring the applicant as far as is reasonably possible to the position that she would have been in had the discriminatory acts not occurred, I find that it is appropriate to order the resondent to pay the applicant the sum of $217.96, the cost she paid or would have paid to maintain the benefits plan for two months, the period between the termination of her employment with the respondent when she secured other employment. The applicant has not established that an award beyond these two months is appropriate.

Compliance Remedies

36Based on the evidence before me, the respondent does not appear to be aware of its obligations under the Code. In the circumstances, it is appropriate to order the respondent’s district managers in Ontario to complete the Ontario Human Rights Commission’s online training module on human rights (http://www.ohrc.on.ca/hr101/) within 60 days of the date of this Decision and provide copies of the certificates of completion to the applicant.

37I decline to order the other remedies requested by the applicant. I am not satisfied that the other remedies requested by the applicant (such as an investigation) are appropriate or would promote compliance with the Code in the circumstances.

ORDER

38Having found that the respondent violated the Code, the Tribunal makes the following orders:

1. Within 30 days of the date of this Decision, the respondent shall pay the applicant $15,000 for her losses arising from the infringement of her rights under the Code plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act, R.S.O. c. C.43, as amended, from the date of the Application;

2. Within 30 days of the date of this Decision, the respondent shall pay the applicant $3,847.50 less statutory deductions for her lost wages plus pre-judgement interest on $3,847.50 in accordance with section 128 of the Courts of Justice Act;

3. Within 30 days of the date of this Decision, the respondent shall pay the applicant $217.96 as compensation for her lost benefits plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act, from the date of the Application; and

4. The respondent shall pay the applicant post-judgement interest on any amounts outstanding commencing 30 days from the date of this Decision in accordance with the Courts of Justice Act.

5. Within 60 days of the date of this Decision, the respondent’s district managers in Ontario shall complete the Ontario Human Rights Commission’s online training module on human rights and provide copies of the certificates of completion to the applicant.

39The Tribunal will deliver this Decsion to the respondent at the address provided in the Application.