Kartuzova v. HMA Pharmacy Ltd., 2012 HRTO 328

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Luba Kartuzova

Applicant

-and-

HMA Pharmacy Ltd.

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: February 15, 2012

Citation: 2012 HRTO 328

Indexed as: Kartuzova v. HMA Pharmacy Ltd.

APPEARANCES

Luba Kartuzova, Applicant ) Self-represented

HMA Pharmacy ) Has Patel and Mina Patel, ) Representatives

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the basis of race, colour, place of origin, ethnic origin, family status, and marital status.

2A hearing was held in this matter on February 6, 2012. I heard evidence from the applicant and from Mina Patel, for the respondent. The parties agreed that I would take the lead in questioning the witnesses. Once I had questioned each of the two witnesses, each party was given an opportunity to pose additional questions to them.

3For the reasons that follow, I find that the respondent breached the Code and that the applicant’s place of origin, family status, and martial status were factors in its decision not to hire her. However, there is no basis to find discrimination on the grounds of race, colour or ethnic origin.

4The respondent is ordered to pay the applicant $4,000 for loss of dignity and $$496.13 for lost wages.

THE FACTS

5The applicant applied for a position as a pharmacy technician with the respondent. On August 16, 2009, she was interviewed for the job by Mina Patel.

6The applicant states that, during the interview, Ms. Patel posed questions about her financial situation, her family and martial status, and how she came to Canada. The applicant alleges that she felt obliged to answer those questions and that, once she did, the tenor of the interview changed. She states that Ms. Patel had told her earlier on in the interview that she would be hired, but the interview concluded abruptly following the personal questions and she was never offered a job with the respondent.

7Ms. Patel is a co-owner of the respondent business. In addition to acting as the corporate respondent’s bookkeeper and accountant, she is responsible for interviewing candidates for employment. While she does not dispute that she interviewed the applicant, Ms. Patel stated that she has no recollection of speaking to or interviewing her. She testified that she conducts a large number of interviews and does not remember everyone she meets.

8Although Ms. Patel could not recall the circumstances of the applicant’s interview, she testified about her practice in conducting interviews, generally. She described her general practice of holding the interview on a bench outside the pharmacy, asking questions about each candidate’s experience, and describing the working environment at the pharmacy.

9Ms. Patel provided the Tribunal and the applicant with a list of interview questions, which she says she has been using for a number of years. There was no allegation that the questions listed are discriminatory.

10Ms. Patel testified that she does not always bring the list of interview questions with her to an interview, but that she has a great deal of experience interviewing candidates and knows what questions to pose. While she is generally guided by the interview questions listed, I did not understand Ms. Patel’s practice to be strict adherence to the questions or the order in which they appear on the list.

11Ms. Patel testified that she makes all hiring decisions in consultation with her husband (also a co-owner) and one or both of her sons, who work as pharmacists for the respondent. She stated that she does not make hiring decisions during interviews. Her practice is to make written comments on the back of a candidate’s resume and then review the candidates, their resumes and her interview impressions with her husband and son or sons.

12The respondent was not able to produce a copy of the applicant’s resume or any comments that may have been made on it. Ms. Patel testified that she does not keep this information for long periods of time. I note that the alleged incident of discrimination occurred on August 16, 2009 and the Application was filed on August 16, 2010. The Tribunal sent a copy of the Application to the respondent on September 16, 2010.

13Ms. Patel clearly took strong personal offence at the allegation that she had posed improper personal questions of the applicant concerning her family, her finances or her coming to Canada. She denied asking such questions and denied treating the applicant differently because of any answers given. She stated that, as an immigrant herself, she has no interest in or desire to harm or offend new Canadians. She stated that information about a person’s family or finances is none of her business, and that while she does not pose questions about these issues in an interview, some candidates offer information voluntarily. Ms. Patel testified that the respondent regularly hires persons of various ethnic origins. She stated that most job candidates are in need of money and their financial situation is not a factor in the hiring decision.

14Contrary to Ms. Patel, the applicant had a very detailed recollection of the interview. Some of the applicant’s description coincides quite closely with Ms. Patel’s evidence about how she generally conducts interviews: it took place on a bench outside the pharmacy, the applicant was asked questions about her experience, and she was given information about the atmosphere at the pharmacy and workplace expectations.

15The parties’ remaining evidence about the interview differs in two important respects. First, the applicant states that, very early on in the interview, after she had described her work experience, Ms. Patel stated, “We will hire you.” Second, as I have indicated, the applicant testified that Ms. Patel asked her a number of very specific personal questions and that the tone of the interview changed after she answered those questions. More specifically, the applicant testified that Ms. Patel asked her questions about her daughter, who had taken a telephone message from Ms. Patel the day before. According to the applicant, Ms. Patel asked about her daughter’s age and then asked about the applicant’s husband. This was followed by a number of pointed questions about the applicant’s finances. Finally, Ms. Patel asked how it was that the applicant had come to Canada.

16The applicant denies that she volunteered any information of this nature. Rather, she felt pressured to answer the questions. She stated that, on some occasions, when she hesitated to answer, Ms. Patel posed the same question again or rephrased it.

17The applicant states that she had arrived at the interview full of confidence and hope and that she had been excited by the apparent job offer. After the interview, she states that she felt depressed and less confident. She states that she had anxiety, difficulty sleeping, and a feeling of worthlessness. She explained that she felt the respondent had rejected her, not because of her experience or professional qualifications, but because of her personal characteristics.

CREDIBILITY

18As I explained to the parties at the outset of the hearing, this Application raises important issues of credibility. Only the applicant and Ms. Patel were present at the interview, and their evidence differs in a number of key areas. As a result, my determination of the Application will turn in large part upon my assessment of the credibility of these two witnesses.

19In assessing credibility, I have applied the traditional test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A.):

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.... Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken…

20In addition to these factors, I have also considered those set out in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, namely the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence; and observations as to the manner in which the witnesses gave their evidence.

21The assessment of credibility is made difficult in this case because both the applicant and Mina Patel gave their evidence in a straightforward manner. Both answered the questions put to them clearly, without hesitation, and in an internally-consistent manner.

22The difficulty for the respondent is that Ms. Patel had absolutely no recollection of her interactions with the applicant. She was also unable to give any evidence about why the applicant was not hired.

23I accept that Ms. Patel conducts interviews on a regular basis, and it is understandable that her recollection concerning a particular unsuccessful candidate may be limited. As I have indicated, Ms. Patel’s evidence was that the allegations are inconsistent with her general interview practice and that she had the personal and professional experience to know that the alleged questions are improper.

24Conversely, the applicant was able to provide detailed evidence of the interview, including internally-consistent evidence about the general chronology of the questions posed of her. In some instances, she recalled the phrasing of questions and explained what words were used when Ms. Patel reframed her questions. The applicant testified first and much of her evidence as to the conduct of the interview was consistent with what Ms. Patel described as her general practice. This includes details such as where the interview took place and Ms. Patel’s description of the workplace (quiet, limited unnecessary talking, and face paced.)

25In the circumstances, where their evidence differs, I am prepared to accept the applicant’s version of events. I have reached this conclusion on a balance of probabilities and in light of the level of detail provided by the applicant as well as the straightforward and candid manner in which she testified.

26That said, I do not doubt Ms. Patel’s evidence about her general approach to interviewing candidates, nor do I believe that she actually intended to offend or discriminate against the applicant. However, as the Tribunal has repeatedly stated, motive or intention to discriminate is not a necessary element of discrimination: see, for example, Cugliari v. Telefficiency Corporation, 2006 HRTO 7. It may be that Ms. Patel was posing questions to see if the applicant would “fit in” to the close-knit working environment at the pharmacy. On a balance of probabilities, I find that during the job interview Ms. Patel did pose to the applicant questions about her family status, her marital status, her finances, and her place of origin.

ANALYSIS

27Section 5(1) of the Code states:

Every person has a right to equal treatment with respect to employment without discrimination because of…disability.

28Section 23(2) and (3) of the Code state:

Application for employment

23 (2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

Questions at interview

(3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.

29Based on the evidence before me, I find that the respondent inquired about the applicant’s Code-related characteristics during the course of a job interview. On this basis and applying section 23(2), I find that the respondent is in breach of section 5 of the Code. I turn now to whether or not the applicant’s Code-related characteristics were a factor in the respondent’s decision not to hire the applicant.

30The applicant bears the onus of establishing a prima facie case of discrimination. In hiring cases, the Tribunal has generally accepted that a prima facie case is made out when the applicant shows that:

a. she was qualified for the job but was not hired;

b. the person selected for the job was no better qualified that the applicant; and

c. the person selected for the job lacks the distinguishing Code-related feature of the applicant (i.e. her ethnic origin, family or marital status). See, for example, Clennon v Toronto East General Hospital, 2009 HRTO 1242.

31The onus of proving discrimination remains on the claimant throughout the analysis: see Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 119. However, once an applicant establishes a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

32I have concluded that, during the interview, the respondent asked for and was given information about the applicant’s marital and family status as well as her place of origin. I do not accept the respondent’s argument that the applicant could have simply elected not to answer questions posed of her. To refuse to answer questions in an interview is potentially prejudicial and the applicant reasonably assumed that it could impact her chances of getting the job. I accept the applicant’s evidence that she did not volunteer this information, but answered reluctantly, in some instances after the questions were posed a second time.

33Having found that the respondent asked questions of the applicant about her family status, marital status, and ethnic origin, I conclude that her answers were a factor in the respondent’s hiring decision. It is reasonable to assume that questions of this nature were posed during the interview because the respondent wanted this information in order to make its hiring decision. There is no other reasonable explanation for posing the questions.

34I am mindful that “fit” can be an important consideration in staffing, perhaps especially in a small business. As the Tribunal has indicated in White v. Queen’s University, 2010 HRTO 640 at para 30:

Although “fit” can at times be used to conceal discriminatory considerations, it is not necessarily so. See Sukhu v. Universal Energy, 2009 HRTO 1922 at para. 27. Determinations with respect to “fit” must use objective and non-discriminatory criteria, and assessments must be based on actual characteristics and qualities, not presumptions and stereotyping.

35However, even if Ms. Patel’s questions were posed in order to determine whether the applicant would ‘fit” in the workplace, they are improper because they relate to and consider the applicant’s Code-related characteristics. Unlike White, supra, this not a case where a potential employer made a staffing decision based on objective and non-discriminatory criteria.

36Further, I am satisfied that the applicant was qualified for the job. Ms. Patel’s evidence was that while the respondent tries to hire people with experience in the area, it does hire individuals without experience and trains them. In any event, the applicant testified that she had experience and an educational background in this field. This was not challenged by the respondent.

37The respondent has not provided any evidence explaining its decision not to hire the applicant. Ms. Patel had no recollection of the applicant, her skills or her experience. It may be that the respondent had a non-discriminatory basis for preferring another candidate over the applicant, but it has not been able to establish this before the Tribunal.

38Accordingly, based on the evidence before me, I find that it is more probable than not that the applicant’s marital status, family status, and ethnic origin were factors in the respondent’s decision not to hire her.

39Based on the evidence before me, there is no basis to conclude that the applicant was questioned about her race or colour or that either of these had any bearing on the respondent’s decision.

REMEDY

40Having concluded that the respondent breached the Code, I must determine what remedy is appropriate.

41The Code provides the Tribunal with a broad remedial authority once it has determined that a breach of the Code has been established. Section 45.2 of the Code states:

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.

42The applicant is requesting that the Tribunal award her $15,000.

Lost Wages

43I have accepted that the applicant’s Code-related characteristics were factors in the respondent’s decision not to hire her. In these circumstances, it is appropriate to award the applicant damages for loss of wages in order to compensate her for the income she would have earned but for the discrimination.

44Ms. Patel stated that the position in question was ultimately filled. It was advertised as a part-time/full-time job, paying $10.50 per hour. Ms. Patel stated that for training purposes and depending on staffing needs, most employees begin working part-time hours, in the range of 12 to 15 hours per week. I accept this evidence.

45The applicant testified that she secured other employment, at $10.25 per hour, beginning in September 18, 2009. She states that, on average, she works between 20 to 30 hours per week. I find that the applicant suffered a loss of wages until September 18, 2009, after which time she fully mitigated any income loss.

46Neither party provided any evidence regarding when the applicant might have started work, had she been hired by the respondent. I find that it is reasonable that, had she been hired, she would have begun work within one week of the August 16th interview, on August 23^rd, 2009.

47Based on Ms. Patel’s evidence, I conclude that in the 3.5 weeks between August 23 and September 28, 2009, the applicant could have expected to work 13.5 hours per week at a wage of $10.50 per hour. This amounts to a wage loss of $496.13.

Injury to Dignity, Feelings and Self-Respect

48An award 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 stated that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649 at para. 152.

49The Divisional Court has also 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., supra, at para. 153.

50In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal 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.

51In assessing what remedy is appropriate, I have considered cases where the Tribunal has found that improper, Code-related questions were posed during job interviews. All of these cases are, however, somewhat different from the matter before me. In some instances, they often involve a period of employment following the interview. In others, they involve very serious findings of verbal and physical sexual harassment, which were clearly absent in this case.

52In Vaid v. Freeman Formalwear, 2009 HRTO 2273, the Tribunal ordered damages for injury to dignity in the amount of $3,000. In that case, the Tribunal found that the applicant had been asked questions about her intention to start a family during a job interview. In addition, the Tribunal held that after the applicant was hired and became pregnant, the respondent created an unwelcoming work environment for her because of her pregnancy.

53In Callaghan v. 1059711 Ontario Inc., 2012 HRTO 233 , the Tribunal found that an applicant’s Code-related grounds were factors in the respondent’s decision not to offer her a promotion. In reaching this conclusion, the Tribunal considered questions the respondent had posed of the applicant during an interview concerning her family status and awarded $1,500.

54In Ontario Human Rights Commission v. Motsewetsho, 2003 HRTO 21, the Tribunal found that the respondent had posed inappropriate questions while interviewing a number of applicants and had made sexual advances. In regards to some of the applicants, the Tribunal held that the respondent’s conduct had also included sexual touching. In that case, the Tribunal’s awards for loss of dignity ranged from $5,000 to $15,000.

55After considering the applicant’s evidence regarding the impact of the discrimination on her and the legal principles and case law cited above, I find that $4,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect. I accept that the interview had a significant and lasting impact on the applicant. However, the circumstances of this case are not as serious as those in Motsewetsho, supra, in which more substantial awards were made.

Compliance Remedies

56Finally, I am not satisfied that the respondent is aware of its obligations under the Code. I therefore find it appropriate to order that the respondent’s owners complete the Ontario Human Rights Commission’s online training module on human rights (http://www.ohrc.on.ca/hr101/) and provide copies of the certificates of completion to the applicant.

ORDERS

57For all of the above reasons, the Tribunal orders as follows:

1. Within 30 days of the date of this Decision, the respondent shall pay the applicant $4,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect.

2. Within 30 days of the date of this Decision, the organization respondent shall pay the applicant $496.13 as monetary compensation for lost income. Pre-judgment interest is payable on her lost income from September 23, 2009 to the date of this Decision.

3. Post-judgment interest is payable on any amount of the awards of monetary compensation for injury to dignity, feelings and self-respect and lost income not paid within 30 days of the date of this Decision.

4. Within 60 days of the date of this Decision, the organization respondent’s owners 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.

The applicable interest rates may be found on the website of the Ministry of the Attorney General of Ontario:

http://www.attorneygeneral.jus.gov.on.ca/english/courts/interestrates.asp