HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michelle Russell
Applicant
-and-
Indeka Imports Ltd.
Respondent
DECISION
Adjudicator: Leslie Reaume
Indexed as: Russell v. Indeka Imports Ltd.
APPEARANCES
Michelle Russell, ) Bay Ryley, Applicant ) Counsel )
Indeka Imports Ltd. ) Chris Dockrill, Respondent ) Counsel
1This Decision arises from an Application filed by Michelle Russell against her former employer Indeka Imports Ltd. alleging discrimination with respect to employment on basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was terminated on September 9, 2009 because of her disability when she returned to work from a nine-week medical leave of absence.
2The respondent is a wholesale distributor of footwear. It distributes brand-name footwear products to both major retail chains and independent retailers. The applicant worked for the respondent as a product scanner from September 17, 2004 until September 9, 2009. Initially she worked from September 17, 2004 until November, 2004, and then was re-hired in January, 2005. The applicant took two medical leaves, one from March to October 2005 and the second from July 10, 2009 to September 8, 2009. The applicant was terminated when she returned to work on September 9, 2009 from the second medical leave.
3What is not in issue in this case is the applicant’s performance, the sufficiency of her medical note, or the legitimacy of either of her medical leaves. The respondent denies that the termination was based in whole or in part on anything but a significant decline in business.
4During the course of the hearing the applicant consented to the removal of Robert Hewitt as an individual respondent and the style of cause was amended accordingly.
5The Tribunal heard oral evidence from the applicant and Mr. Hewitt, and received Books of Documents from both parties which were entered as exhibits. The parties also filed written submissions following the hearing.
6I have indicated where the facts are in dispute between the parties; otherwise there were a number of facts which were agreed upon. I have set out only those facts which were relevant to my decision.
7There were two procedural issues of note, the first involving the production of documents. The second issue arose at the conclusion of the applicant’s cross-examination when the respondent sought to have the Application dismissed on the basis that the applicant had not proven a prima facie case. That Request was dismissed for the reasons I have set out in the Analysis section of this Decision.
8With respect to the first issue, the respondent filed a Request for an Order During Proceedings (“Request”) seeking production of certain documents shortly after filing its Response to the Application. The Tribunal issued a Case Assessment Direction (“CAD”) dated May 18, 2011, indicating that, at the time that it was filed, the Request was premature and that the Tribunal generally does not deal with issues of production in advance of the Notice of Confirmation of Hearing and disclosure and production timelines set out by the Tribunal’s Rules of Procedure. By May 18, 2011 the parties had exchanged arguably relevant documents and filed hearing materials and the applicant was directed to respond to the Request within 10 days of the CAD.
9A case management teleconference was held on July 9, 2011 to determine whether any part of the Respondent’s Request remained outstanding. Among other things, the respondent sought production of the applicant’s medical chart from her family doctor. Counsel for the respondent had written directly to the applicant and her doctor advising them that he would be seeking an order from the Tribunal for “copies of any relevant medical records concerning Ms. Russell”.
10As part of the disclosure process, the applicant had provided the respondent with a copy of her doctor’s chart from July 10, 2009, the day she met with her doctor and it was determined that she required a medical leave of absence. The document was partially redacted. The Tribunal denied the respondent’s request for further production of medical records including the redacted portion of the chart on the basis that the respondent was not taking issue with the legitimacy of the medical leave or the sufficiency of the doctor’s note which the applicant had submitted to her employer at the commencement of her leave. The respondent relies entirely on changes in the company’s staffing needs as the reason for the applicant’s termination. No questions were ever asked about the underlying reasons for the leave either when the leave was taken or when the applicant returned to work.
11The Request was raised again during the applicant’s evidence on the basis that her testimony conflicted with the notes made by her doctor in the chart she had produced from July 10, 2009. The respondent argued that the redacted portion of the chart and other medical records had now become relevant to the assessment of the applicant’s credibility. The respondent was permitted to confirm with the applicant that the doctor’s notes were correct in so far as she had told her doctor that she had concerns about her granddaughter which she had not raised in her testimony. It was obvious from a review of the notes that they contained no reference to a discussion about the applicant’s previous diagnosis, which she had raised in her testimony. I did not permit any further probing of the applicant’s medical history. The request for further medical evidence was denied for the reasons that follow.
12First, the chart is barely legible and clearly not a verbatim account of the meeting between the applicant and her doctor.
13Second, I disagree with the respondent’s argument that there is a credibility issue arising from what the applicant said was the source of her depression and stress in both her Application and her testimony, and what was recorded in her doctor’s note. The applicant testified that she took a medical leave because of stress, anxiety, and depression. She felt that certain experiences in her life had “caught up” with her including her treatment for cancer and the demise of her relationship of 18 years. In her Application she also made reference to her experience of “dealing with 4 children on my own”.
14The doctor’s note, which is extremely brief, cites “problems”, the names of two of the applicant’s children, the fact that she is “exhausted mentally and physically” and “needs time off”, and that she is “depressed”, “crying”, and “worried about her grandchild”. It is true that the note does not make reference to the applicant’s previous treatment for cancer or her separation. However, I fail to see how that fact can undermine the applicant’s credibility or serve as the basis for production of further medical records. The applicant testified to the events that led her to see her doctor on July 10, 2009 as part of the overall context for her Application. The fact that she may have told her doctor some of those thoughts but not others, or that her doctor recorded some of what she said but not everything she reported, are irrelevant to the assessment of the applicant’s credibility.
15The respondent also alleges that because the applicant admitted to living with one of the respondent’s employees since sometime in 2008, she was therefore “not on her own” as she had alleged. In addition, she acknowledged that only two of her four children were living with her in 2009 when she went on medical leave. The fact that she felt that one of the underlying causes for the medical leave was that she was dealing with “4 children on her own” is not undermined by the admission that she was living with a man at the time. The fact that only two of four children were living with her in 2009 does not contradict her statement that she was “dealing with” four children on her own. Again, nothing in these examples served to undermine the applicant’s credibility or create an evidentiary foundation for the production of her medical records.
16The only relevant question to be answered in this case is whether there is evidence to substantiate the applicant’s allegation that one or both of her medical leaves were a factor in her termination.
Background
17The applicant has been in the workforce since she graduated from Grade 12, working in warehouse and retail positions. She commenced her employment with the respondent on September 17, 2004, scanning footwear prior to shipment. She was aware at the time that she was hired that she would likely be laid-off because of the cyclical nature of the respondent’s business and because she was not a permanent full-time employee. She agreed that the company had busy and slow times and that those times corresponded with either the spring or fall season for footwear. The respondent manages its staffing requirements through permanent full-time staff, some part-time staff, and temporary staff when workload requirements warrant.
18The applicant testified that in November, 2004 she was laid-off and then re-hired in January, 2005, which was consistent with the respondent’s business cycle and what the applicant expected when she was first hired. The applicant testified that she became a permanent full-time staff member when she was re-hired in January, 2005. In March, 2005 she commenced a medical leave and returned to work in October, 2005.
19The documentary evidence does not confirm that the applicant became a full-time employee in January, 2005, although I have concluded that nothing turns on resolving this issue. The applicant was not laid off again after she returned to work in January, 2005. Within two months she was on medical leave, and she was confirmed as a permanent full-time employee when she returned to work in October, 2005.
20There were a number of documents filed which were relevant to the issue of the applicant’s employment status and her expectations throughout her employment.
21The applicant’s first Record of Employment (“ROE”) dated December 17, 2004 indicates that her first day worked was September 17, 2004 and the last day for which she was paid was November 26, 2004. The reason for issuing the ROE was code “A”, which is otherwise known as “shortage of work”. The employer did not use code “M” for dismissal. In addition, box 14, which deals with the expected date of recall, is checked “unknown” as opposed to “not returning”. Although the respondent used the terms “terminated” and “re-hired” in final submissions, Mr. Hewitt denied that the applicant was ever terminated and used the term laid-off. That is also consistent with the applicant’s testimony and, as a result, I have chosen to use the same language.
22By contrast, the applicant’s last ROE dated September 2, 2009 which also refers to code “A” and contains the words “shortage of work/end of contract or season”, indicates that her expected date of recall is “not returning”.
23A letter dated April 21, 2006 from Payroll Administration confirms that the applicant has been with the company in full-time employment as a Warehouse Scanner since October 21, 2005.
24The applicant also signed an employment contract dated November 15, 2005, which established that she would be employed full-time by the respondent as a Scanner commencing October 7, 2005. The contract sets out the terms of the respondent’s offer to employ the applicant as a Scanner on a full time basis as of October 7, 2005. It confirms that the applicant would be on probation for the first three months of her employment, receive an hourly wage which would be reviewed annually at the time of the annual performance reviews, participate in the company’s benefits plan, and take two weeks vacation to be increased to three after completion of her fifth year of employment. The agreement also contains a clause which sets out the employer’s right to terminate for cause or with notice.
25Paragraph 5 of the contract contains the following text:
This agreement constitutes the entire agreement between the parties with respect to your employment and cancels and supersedes any prior understanding or agreement between the parties with respect to your employment. There are no representations, warranties, forms, conditions, undertakings, or collateral agreements, expressed, implied or statutory between the parties other than as expressly set forth in this Agreement.
26From these documents I have concluded the following:
The applicant commenced work in September, 2004 with the knowledge that she would very likely be laid-off as a result of the seasonal nature of the respondent’s business and subject to recall on the same terms until such time as she became a permanent full-time employee.
The applicant was laid-off once in November 2004 and re-called in January 2005;
The applicant became a full time employee as of October 7, 2005;
The applicant was never laid-off after she signed her employment contract;
Whatever representations were made to the applicant about her vulnerability to lay-off as a result of the respondent’s normal seasonal business cycles were superseded by the offer to make the applicant a permanent full-time staff member. The statement that the employer may terminate without cause on notice is a reflection of the provisions of the employment standards legislation and not a special provision directed at putting the applicant on notice that her employment continues to be subject to the respondent’s normal seasonal business cycles.
The applicant was terminated as of September 8, 2009 with no expectation that she would be recalled to work.
27With respect to the medical leave that preceded her termination, the applicant saw her doctor on July 10, 2009 and started a second medical leave the same day because of depression, anxiety, and stress. She provided her employer with a doctor’s note after seeing her physician on July 10, 2009. The note did not make reference to the underlying reasons for the medical leave; it simply noted that “because of illness” the applicant was required to be off work from July 10, 2009 to September 8, 2009. She was not advised that the note was deficient in any way and she was not asked for further information.
28The applicant returned to work on September 9, 2009 and began her normal shift at 7 a.m. She did not arrange for a return to work in advance of that date nor was she contacted by anyone from her workplace.
29Shortly after her first morning break the applicant was called into a meeting with Mr. Hewitt who told her that she was no longer needed because business was slow. The applicant testified that she asked Mr. Hewitt if she would be called back if business picked up and he responded affirmatively. By all accounts the meeting was brief. Mr. Hewitt handed the applicant an envelope which contained her record of employment and a cheque. The applicant did not open the package immediately. She gathered her things and left the building.
30Mr. Hewitt, who testified for the respondent, gave a slightly different account of the meeting. He noted, for example, that an employee named D.M. had been present. Mr. Hewitt testified that his perception was that the applicant appeared to be in shock and that she did not ask any questions during the meeting.
31The ROE indicates that the reason for issuing the ROE was “shortage of work/end of contract or season” with Code “A” specified. The package also contained a cheque in the amount of $4,620.00 which represented 10 weeks’ wages.
32The applicant testified that she did not look at the ROE until she got to the Employment Insurance office. The ROE indicated that the applicant was “not returning” which was inconsistent with what the applicant believed she had been told by Mr. Hewitt. She was very upset and described herself as “distraught”.
33The applicant testified that she did not understand why she was being terminated. The applicant had very little information about the events leading to her termination and so relied on her perceptions in coming to the conclusion that perhaps her medical leave had been a factor in her termination. Her ROE had indicated that she was “not returning”. She testified that none of the other people working in her function, including at least one employee who had less seniority than she did, were affected by the slow-down, and that September was generally a busy month for the respondent. She was also unaware of another permanent full-time employee in the warehouse who had been laid off or terminated before her termination or at the same time. By the time of the hearing she was also aware that the company had been recalling employees by January or February 2010 and she was not invited to return.
34At the time of his testimony Mr. Hewitt had worked for the respondent for just under 10 years and had responsibility for the distribution centre in which the applicant was working. He was not the applicant’s direct supervisor but would occasionally have contact with her. There were approximately 20 to 25 people working in the warehouse.
35There is no dispute about the respondent’s business cycle. Mr. Hewitt testified that September and October are the busiest months of the fall season and March and April are the busiest months of the spring season. Mr. Hewitt testified that the worst month for both shipping and receiving is December, and that the respondent’s year-end is November. Shipping and receiving fluctuate from month to month depending on whether they are building up to or declining from the fall or spring season. An important part of Mr. Hewitt’s role with the company was to forecast shipping and receiving activity. Mr. Hewitt testified that he reviewed the shipping and receiving activity and developed forecasts in relation to both committed sales and floor sales on a daily basis. Mr. Hewitt testified that the company regularly hired and laid off temporary staff during those cycles.
36Mr. Hewitt testified that a decision was made in approximately the middle of July, 2009 that the company would need to reduce the number of employees because of a reduction in business which, in his view, would go beyond the normal business fluctuations by fall of 2009. Mr. Hewitt testified that he was able to forecast this decline in July and met with senior officials of the company in the second or third week of July to make decisions about staffing reductions.
37Mr. Hewitt testified that he met with the company CEO and the Controller and that he brought with him a list of employees he was recommending for lay-off. Mr. Hewitt recalled some aspects of the meeting but could not remember where the meeting was held or which other employees had been proposed for lay-off except to say that it was determined that the company would have to reduce by three or four staff.
38Mr. Hewitt also testified that all of the employees were assessed, including employees on leave, and that he was primarily looking to keep people who could multi-task in the sense that they could operate a piece of equipment, pick and scan, unload containers, and help in other areas of the warehouse.
39The applicant alleged that she was terminated while an employee that she had trained in the scanning function named P.C., who had less seniority then she did, remained employed.
40Mr. Hewitt explained this by saying first that seniority did not play a role in decisions about which employees to keep and which to terminate. The primary criterion was the ability to multi-task. Second, that particular employee had been doing the applicant’s job in her absence as well as other tasks including the operation of equipment for which he was licensed. Mr. Hewitt had assessed the applicant as less able to contribute to other tasks compared to this employee. Mr. Hewitt also gave the example of another employee, D.F., who was working as a picker, scanner, and machine operator.
41The applicant also questioned why she was chosen for termination while the other four women who were assigned to the scanning function on a full-time basis were not laid-off. Mr. Hewitt admitted that none of the other Scanners had any of the multi-tasking skills he had identified in P.C.. He testified that all of the other Scanners were “senior” to the applicant, and that he had “deemed” them to be better at the scanning function.
42Mr. Hewitt testified that he could not remember the exact number of employees who were ultimately laid-off or when their lay-offs occurred as a result of the decision in July. He speculated that it must have been “around the same time”, meaning the same time as the applicant’s termination. He testified that it was important to keep in mind that the company employed temporary workers at that time and he was including those workers in the people who were laid-off. He admitted on cross-examination that he could not name one other full-time, permanent staff person who had lost their job along with the applicant. Mr. Hewitt testified that despite that, the company did “reduce”, and that he always applied the same criteria – “this person can do three things and do it well” – whereas some others are limited to single tasks.
43The respondent produced one document prepared by Mr. Hewitt in support of its position that the respondent’s business was experiencing an unprecedented reduction in business which required the reduction of staff including the permanent lay-off of the applicant. Mr. Hewitt testified that he prepared the document for the hearing and that it shows a comparison of product shipment figures from July to October 2008, and the same period for 2009. While the numbers for August are actually up by 12.88 percent, the document shows a cumulative change in the number of pairs shipped of -20.52 percent in July to October 2009 as compared to the same four-month period the previous year.
44Mr. Hewitt testified that by January or February 2010, the company was re-hiring employees but that he did not consider recalling the applicant. He noted that by the time of the recall the applicant was pregnant: a fact he became aware of through the applicant’s fiancé, who was working for the respondent at the time.
Analysis
Applicable Legal Principles
45It is well established that human rights legislation is to be given a broad, liberal, and purposive interpretation. In addition to the specific provisions related to discrimination, the Code contains a preamble which reflects the kinds of experiences the legislation is directed at remedying. It speaks not just to equality in relation to the law, but also to the values of understanding, mutual respect and dignity, and the necessity to ensure that every citizen has the opportunity to contribute fully to the community. The analysis of a claim of discrimination under the Code must be animated by these important principles.
46The Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 (“McDougall”) confirmed that the “balance of probabilities” standard of proof applies to all civil cases, and, in order to satisfy this standard, evidence must be “sufficiently clear, convincing and cogent”.
47In Shaw v. Phipps, 2012 ONCA 155 (“Shaw”), the Court of Appeal re-stated the long-standing principle from the decision of the Supreme Court of Canada in Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, that the onus rests on the complainant to establish a “prima facie” case of discrimination which is described as “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of answer from the respondent.”.
48The respondent has the onus of demonstrating, on the balance of probabilities, a credible, non-discriminatory justification for its actions. If the respondent is unable or unwilling to establish such a justification, or the complainant proves that the justification is pretextual, the Tribunal will find a breach of the Code and order an appropriate remedy.
49Discrimination is not defined in the Code, however, it has been consistently defined by the Tribunal and the Courts to mean adverse treatment on the basis of a prohibited ground (Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536 (“O’Malley”); Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.), [1989] 1 S.C.R. 143). In this case, the applicant experienced a disability which required her to take a medical leave from work. The adverse treatment or disadvantage is the termination which took place immediately upon her return to work. However, these facts alone are not sufficient to support a finding that the Code has been breached. The onus is on the applicant to establish, on the balance of probabilities, that there is a connection between the prohibited ground of disability and her termination. The applicant is not required to prove that disability is the sole factor in the decision to terminate her employment; it is sufficient that she prove that disability was one factor.
50To the extent that this case requires me to assess the credibility of the witnesses who testified before me, I have been guided by the principles established in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) and particularly the following comments at pp. 356-357:
(…) 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 as 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.
51I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: 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.
52A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable. See McDougall and Shah v. George Brown College, 2009 HRTO 920. As such, a tribunal is entitled to accept or reject some, all, or none of a witness’s evidence.
Reasons for the Ruling on the Prima Facie Case
53As I indicated at the beginning of this Decision, the respondent asked that the Application be dismissed at the conclusion of the applicant’s cross-examination for failure to establish a prima facie case. Counsel for the respondent claimed that his client had a right to have this issue determined prior to the calling of evidence from the respondent. I heard brief submissions from both counsel and dismissed the respondent’s Request.
54In my view, the proper approach to early dismissal on partial evidence is to determine whether there is “no reasonable prospect of success” for the reasons set out by the Tribunal in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777. The decision in Pellerin was released after the hearing of this matter, however, the reasoning underlying that decision is consistent with my reasons for refusing to dismiss this Application at the conclusion of the applicant’s testimony.
55I have made reference to the prima facie case because it was specifically relied upon by the respondent. However, the decision in O’Malley does not establish a procedural right on the part of the respondent to have the issue of the prima facie case determined before the respondent is required to call evidence. The Tribunal determines, pursuant to the Code and the Rules of Procedure it has developed for the fair, just, and expeditious disposition of Applications, what evidence is relevant and what order that evidence will be called in. The prima facie case is an analytical tool for describing the different issues which the parties are required to address in a human rights analysis. In O’Malley it created a framework for the disposition of an Application where the respondent declined to call evidence. In a case where both parties have called evidence, the ultimate burden is on the applicant and the application is determined on the totality of the evidence (Shaw supra).
56Unless, at some stage in the evidence it becomes apparent that the application has no reasonable prospect of success, the Tribunal should proceed to hear all of the evidence necessary to dispose of the application. The applicant’s evidence can consist of documents produced by the respondent and admissions elicited through cross-examination of the respondent’s witnesses. This is particularly true in termination cases where the respondent may be in possession of most of the information associated with the decision to terminate. Since the ultimate burden is on the applicant to prove discrimination, it is important for the Tribunal to ensure that the application is not dismissed prematurely, before the applicant has been able to acquire evidence that would be reasonably available to support his or her case.
57In this case there was no basis for concluding that the Application had no reasonable prospect of success when the question was raised because the evidence and circumstances did not support such a finding. There was also sufficient evidence, as I explain in the next paragraph, to establish a prima facie case if the case had come to end without further evidence from the respondent. As a result, I determined that it was important to hear evidence from both parties and examine all of the circumstances giving rise to the allegations before coming to a final conclusion on whether the parties had met their respective burdens.
58At the conclusion of her cross-examination the applicant had established that she was terminated immediately upon return from a medical leave of absence based on a disability, and there was no evidence, that she was aware of, that any other permanent full-time employee had been similarly treated. Despite the cyclical nature of the respondent’s business, the applicant had never been laid off since becoming a permanent full-time staff member. The applicant’s ROE established that she would not be called back to work, which was inconsistent with her experience of having been laid off in November, 2004 and the nature of the respondent’s seasonal business cycles. She was also laid off in September, 2009 which she described as one of the respondent’s busiest months. By the time of the hearing she was aware that the company had re-called workers, as it normally does, in January and February 2010. She testified that while she was employed, the applicant had never received any negative feedback on her performance. There were no credibility issues to resolve in the assessment of this evidence. The applicant’s evidence is sufficient to overcome the argument that this Application has no reasonable prospect of success and to establish a prima facie case of discrimination.
59That evidence does not, however, lead directly to a final determination that the Code has been breached. That finding cannot be made until the respondent’s explanation is considered, or as was the case in O’Malley, the point at which the case has come to a conclusion because the respondent refuses to call evidence. The applicant still retains the overall burden to prove discrimination. The respondent’s role is to explain the basis for the termination. If, on a review of all the evidence, including that explanation, the applicant has not established that the termination is connected to her disability, the respondent will be successful and the application will be dismissed. It is important to reinforce that the respondent does not bear what is sometimes referred to as a reverse burden to disprove discrimination. In this case, the applicant’s evidence is sufficient to trigger the respondent’s burden to provide an explanation.
60The respondent’s explanation has two components: the necessity to lay-off staff because of a more significant decline in shipping than the respondent experienced as a result of the normal seasonal cycles of the business; and the decision to choose the applicant in particular for permanent lay-off.
61The respondent produced one piece of documentary evidence which compares the shipment of pairs of shoes over a four-month period in 2009 with the same four-month period in 2008. None of the source documents were provided to support Mr. Hewitt’s testimony that he was able to forecast this impending decline in July, 2009. There were also no documents produced to substantiate the claim that the decline was unprecedented other than the comparison with the same four months in 2008, and no documents or testimony which related to the company’s overall position at year end.
62Mr. Hewitt’s testimony about the meeting in July 2009 at which decisions were made to reduce the number of staff was extremely vague. Although he testified that three or four workers would have to be let go, he could not name one other permanent full-time worker who was terminated with the applicant. He specifically included temporary workers in those numbers but did not explain how his proposal in July, 2009 differed from the normal forecast to reduce temporary employees as the respondent’s business cycle began to wind down toward its November year end.
63Mr. Hewitt also gave contradictory answers about the criteria applied in choosing to retain the five employees working on the scanning function over the applicant, four of whom were assigned to that function full-time. He testified that seniority was irrelevant and that the key factor in retaining employees was their ability to multi-task. This was the explanation given for the retention of the one employee with less seniority than the applicant. Then, having acknowledged that the four full-time scanners did not have the same kind of multi-tasking skills, Mr. Hewitt testified that they were retained over the applicant because they were “senior” to the applicant and because he had “deemed” them to be better scanners.
64It may be that Mr. Hewitt was concerned about the numbers he was forecasting in July, 2009, but the evidence offered to support the termination of the applicant in these circumstances is meagre, vague, and internally inconsistent. There is no evidence that any other permanent full-time employees were terminated or even laid-off subject to recall because of the concern about declining shipments. Although Mr. Hewitt described the applicant as “laid-off” and not terminated, her ROE clearly indicates that there is no expectation that she will return, and there was no evidence offered to explain that decision.
65Even if I accept that a reduction of one permanent full-time staff member in the scanning function was required, one would have expected a fair and objective assessment of the applicant’s skills as compared to the other employees. The only evidence to support this assessment is Mr. Hewitt’s assertion that he “deemed” the others to be better scanners. In my view, the evidence supports the inference that the applicant lost her job, in part, because she was the one employee away from the workplace on medical leave. The fact that the applicant was on medical leave rendered her vulnerable to having her position re-evaluated without an opportunity to be fairly assessed for the remaining positions. There was no evidence that any consideration was given to bringing the applicant back to work and laying-off one of the other employees working in that function. Given all of the above circumstances, the evidence supports an inference that the applicant’s medical leave was a factor in the decision to select her as the employee who would be laid-off.
66I find that the Code has been breached by the respondent. There was no dispute that Mr. Hewitt was acting in the course of his employment when he carried out the termination and as a result, the respondent is liable for the breach pursuant to section 46.3 (1) of the Code. I now turn now to a discussion of the appropriate remedies.
Remedy
67The remedial powers of the Tribunal 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:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out the infringement, including restitution for injury to dignity, feelings and self-respect.
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.
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 the 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.
68The applicant seeks $20,000.00 in general damages for injury to dignity, feelings, and self-respect, lost wages in the amount of $17,639.77, and interest on those sums. The applicant is also seeking a public interest remedy in the form of policy development and training by the respondent.
Injury to Dignity, Feelings, and Self-Respect
69The applicant testified that she felt humiliated by the termination, especially given that no one contacted her in advance and she was permitted to return from medical leave only to be terminated part way through her shift. She also testified that she felt that she was just getting back on her feet and that the termination had significant consequences for her self-esteem, especially because she was recovering from depression and anxiety.
70In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), the Court held that tribunals should consider the following subjective factors when awarding general damages: humiliation, hurt feelings, the loss of self-respect, dignity and confidence, the experience of victimization, vulnerability, and the seriousness of the offensive treatment. In addition to the subjective effects of discrimination on an applicant, the Tribunal may incorporate an objective component to the quantification of monetary compensation by considering the circumstances surrounding the discrimination. See Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940; appeal dismissed 2010 ONSC 278. In assessing quantum, the Tribunal is mindful of not setting the amount too low so as to avoid trivializing the social importance of the Code by effectively creating a ‘license fee’ to discriminate. See Sanford v. Koop, 2005 HRTO 53, at para. 34.
71In Vallee v. Fairweather Ltd. 2012 HRTO 325, the Tribunal reviewed the purpose of compensation for injury to dignity, feelings, and self-respect and the leading cases most commonly relied on in quantifying an award (see paragraphs 29 to 32). I have considered the same principles including:
a. the over-riding consideration that an award of compensation on these grounds recognizes the inherent value of the right to be free from discrimination and the experience of victimization;
b. that among the factors to be considered are humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant;
c. the dual considerations of the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination;
d. the range of awards in disability-related discrimination cases in the context of employment which are from $10,000.00 to $45,000; and
e. the factors which would apply in circumstances where the Tribunal would award less than $10,000.00, including performance issues that contributed to the termination, the short duration of the employment period, and the failure to present evidence of impact.
72The respondent argues that the applicant has not satisfied any of the criteria established by the Tribunal’s jurisprudence. I disagree. The applicant testified about the impact of the respondent’s conduct on her personally, her sense of humiliation, vulnerability and loss of self-esteem, none of which was out of proportion with the objective seriousness of the conduct she experienced. A negative effect on her self-esteem and a setback in her recovery are the foreseeable outcomes of the decision to terminate the applicant on the day that she returned to work from her medical leave. None of the factors which one might consider in making an award of less than $10,000.00 were present in this case.
73Having weighed all of the factors relevant to determining quantum, I find that $15,000.00 is an appropriate award of compensation for injury to dignity, feelings, and self-respect in this matter.
Lost Wages
74The applicant’s claim for $17,639.77 in lost wages spans the period from her termination in September 2009 to the end of 2011.
75The purpose of compensation for loss of income is to restore the applicant as far as is reasonably possible to the position the applicant would have been in had the discriminatory acts not occurred. See Smith v. Ontario (Human Rights Commission), 2005 2811 (ON S.C.D.C.).
76This is not to suggest that the claim for compensation for lost wages is unlimited. The Tribunal in Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, affirmed that determining the outside limit for lost wages involves an evaluation of the impact of the respondent’s conduct on the applicant’s ability to earn a living (paragraph 160). This finding is also consistent with the Code which provides a remedy in the form of compensation for “loss arising out of the infringement”.
77The applicant has a duty to mitigate her losses by making reasonable efforts to obtain suitable employment. The applicant is entitled to be compensated only for those losses that could not have been avoided and the respondent has the onus of proving the applicant’s failure to mitigate. See Heintz v. Christian Horizons, 2008 HRTO 22, at para. 265; and A. v. Ruby’s Foods Services Ltd. (1992), 1992 CanLII 14245 (ON HRT), 16 C.H. R.R. D/394, at para. 45 (Ont. Bd. Inq.).
78The last day for which the applicant was paid as a full-time employee of the respondent was September 8, 2009. She received 10 weeks of severance from the respondent which would have taken her to November 17, 2009. The applicant became pregnant in November 2009 and approximately 20 weeks later, in late March 2010, the applicant was placed on significant restrictions because of complications with her pregnancy. By April 26, 2010, the applicant was hospitalized until her son was born on May 21, 2010, 10 weeks premature. The applicant’s claim is for wage loss up to the point at which she was hospitalized and lost benefits after that point, including maternity benefits that she would have been entitled to had she remained working with the respondent. The applicant has also made a claim for further lost wages for the period when she returned to her job search in April, 2011.
79The applicant accepted a position shortly after she was terminated with Pizza Pizza. She worked for two weeks and then realized that the hours she was required to work conflicted with her obligations to her children. She testified that she had expected more work during the day and that she also found it unsafe to be leaving work at 1:00 or 2:00 in the morning from where the office was located. She worked for Pizza Pizza for two weeks and earned $485.57 according to her record of employment dated October 13, 2009.
80The applicant also worked for Maingate Personnel from October 7, 2009 to November 19, 2009, earning $1933.23 according to her record of employment dated November 20, 2009. The applicant did not explain why she quit working for Maingate at this time.
81In her final submissions counsel argued that the applicant’s pregnancy had a “major impact” on the applicant’s ability to find work, however, the applicant did not testify about any pregnancy related issues which affected her job search apart from the fact that at approximately 20 weeks she developed complications and was placed on significant restrictions.
82The applicant worked again for Maingate from March 22, 2010 to March 26, 2010, earning $142.23 according to her record of employment dated June 4, 2010. This period corresponds with the applicant’s testimony that she was placed on significant restrictions. The applicant testified that she disclosed her restrictions to Maingate and was told that there were no positions available which could accommodate her needs.
83The applicant testified that she also dropped off resumes and applications to a variety of retailers and wholesalers including Zellers, Loblaws, Fizzy Candy, Dollarama, Dairy Queen, Wal-Mart, Tim Horton’s, Coca-Cola, and Whiz-a-Top.
84The applicant’s claim is for $17,639.77, a figure well in excess of what was requested during the hearing. The initial proposal for lost wages, which totalled $13,632.00, was prepared by counsel and put to the applicant during her examination in chief. It became apparent that the document contained some errors and omissions including the failure to deduct the severance that the applicant received. That document was to be entered as an exhibit appended to a new document which more accurately reflected the applicant’s actual income loss. Counsel for the applicant set out a series of figures in her final submissions. The respondent then filed a response taking issue with the applicant’s calculations and the applicant filed a reply with further corrections.
85The respondent argued that the applicant failed to mitigate her losses from the time of her termination until she was hospitalized. The respondent argued, for example, that the applicant’s explanation for resigning from Pizza Pizza was pretextual because the applicant testified that she continued to apply for positions, some of which would have required her to work at night stocking shelves from approximately 11:00 p.m. to 6:00 a.m. In my view, the fact that she continued to apply for positions, some of which involved stocking shelves at night, was not sufficient to draw the inference that the applicant’s explanation for resigning from Pizza Pizza was pretextual. The applicant testified that she felt unsafe leaving work in the early morning hours where the call centre was located, in addition to the concern that working hours from 4:00 in the afternoon until 1:00 or 2:00 in the morning interfered with her parenting obligations.
86The respondent also argued that the applicant did not produce any documents associated with her job search. She relied entirely on her testimony and memory about the various places where she submitted resumes and applications. I agree with the respondent that the applicant did not provide sufficient evidence to establish that she was actively looking for work between November, 2009 and the point at which she was placed on restrictions in March, 2009, a period of approximately 20 weeks. More importantly, the applicant did not explain why she chose to end her affiliation with Maingate Personnel in November, 2009 when she was averaging more than $300.00 per week. I find that the applicant has failed to prove that she took reasonable efforts to obtain suitable employment and decline to award lost wages for the period from November 17, 2009 (the end of her severance) to the point at which she was placed on significant restrictions in late March, 2010.
87With respect to her claim for lost wages when she returned to her job search in April 2011, the applicant testified that she was able to secure part time employment as of May 5, 2011 at approximately $10.50 per hour. The applicant did not explain how the respondent’s conduct continued to have an impact on her job search at this time. She did not explain why she was working part time or whether she was looking for full time work. She described her employment status as “on call” in the sense that if she was available when she was called, she would report to work. However, the applicant gave no evidence about the hours she accepted or rejected. She gave no evidence about ongoing efforts to find full time work apart from the fact that in April 2011 she started putting out resumes again. As a result, I find that any award for lost wages and benefits would not extend to this period.
88Unlike the facts in Osvald v. VideoComm Technologies, 2010 HRTO 770 (“Osvald”), there was insufficient evidence in this case to establish that the applicant would have been terminated notwithstanding the discrimination she experienced. But for the discrimination, the applicant would more than likely would have been employed by the respondent at the time that she was hospitalized on April 26, 2010. As a result, the applicant is entitled to be compensated for any lost benefits which she would otherwise have been entitled to had she been employed by the respondent at that time.
89The applicant is therefore entitled to any sick benefits or maternity benefits she would have otherwise been entitled to had she remained employed when she was placed on restrictions in March, 2010. The Code is remedial in its focus, and the fact that the applicant was not able to calculate this loss with exact precision does not result in a rejection of her claim to those benefits. The one issue that counsel agree upon is that the respondent is not responsible for any reduction in benefits which would have been connected to the applicant’s medical leave in the summer of 2009.
90If counsel are unable to agree on the sum of money represented by the loss of sick and/or maternity related benefits, they may file a letter with the Registrar setting out their respective calculations within 30 days of this Decision and I will determine the matter.
Remedies to Promote Future Compliance
91The applicant seeks the following orders for the promotion of future compliance with the Code:
The respondent will draft an anti-discrimination/harassment and workplace accommodation policy (“Policy”). The respondent must consult with an external expert in human rights when drafting the Policy.
The Policy must address all rights under the Code in relation to employment, including the right to be free from discrimination on the basis of disability. It must also explain the employer’s duty to accommodate.
Within 10 days of drafting the Policy, the respondent will provide all employees with copies of the Policy. When new employees, including “temps” are hired, they will also receive the Policy.
Within six months of drafting the Policy, all managers and supervisors will receive in-person training on the Policy. The training must be conducted by an external expert in human rights in the employment context.
92Based on the evidence associated with the applicant’s termination, it would be appropriate to order the individuals in management or supervisory positions 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. I decline to order the broader remedies requested by the applicant because there was no evidentiary foundation established which would support a finding that those remedies requested were necessary to promoting future compliance with the Code.
93Having found that the respondent breached the Code, the Tribunal makes the following orders:
Within 30 days of the date of this Decision, the respondent shall pay the applicant $15,000.00 for her losses arising from the infringement of her rights under the Code, plus pre-judgment 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;
Within 30 days of the date of this Decision, the applicant and respondent shall indicate their agreement to the sum payable to the applicant for lost benefits, failing which they shall set out their respective calculations in a letter to the Registrar and the Tribunal will determine the matter. Pre-judgment interest applies on this amount payable in accordance with section 128 of the Courts of Justice Act, from the date of the Application;
The respondent shall pay the applicant post-judgment interest on any amounts outstanding commencing 30 days from the date of this Decision in accordance with the Courts of Justice Act. In the case of lost benefits, 30 days from the date of the agreement or subsequent Decision by the Tribunal; and
Within 60 days of the date of this Decision, the respondent’s managers and supervisors 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.
94I will remain seized with respect to determining the final quantum of lost benefits if necessary.
Dated at Toronto, this 16th day of May, 2012.
”signed by”________
Leslie Reaume
Vice-chair