HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Miki Shinozaki
Applicant
-and-
2252419 Ontario Inc. c.o.b. Hotlomi Spa
Respondent
DECISION
Adjudicator: Sheri D. Price
Indexed as: Shinozaki v. 2252419 Ontario Inc. c.o.b. Hotlomi Spa
APPEARANCES
Miki Shinozaki, Applicant
Self-represented
2252419 Ontario Inc. c.o.b. Hotlomi Spa, Respondent
No one appearing
INTRODUCTION
1This is an Application under s. 34 of the Ontario Human Rights Code, R.S.O. c. H. 19, as amended (“the Code”) in which the applicant alleges that the respondent discriminated against her on the basis of sex contrary to the Code. In particular, the applicant, who worked for the respondent as a massage therapist, alleges that the respondent discriminated against her because of her pregnancy by making a number of negative remarks about the applicant’s pregnancy and her changing body; by reducing the number of clients assigned to the applicant; and, finally, by terminating the applicant’s employment.
RESPONDENT DID NOT PARTICIPATE IN PROCEEDING
2The Tribunal delivered a copy of the Application to the respondent on March 15, 2012. (I note that the address for the respondent provided by the applicant in her Application matches the one on the respondent’s March 7, 2012 cheque to the applicant and a July 11, 2011 receipt from the respondent to the applicant.)
3However, the respondent did not respond to the Application, despite being directed to do so in the Notice of Application and a May 4, 2012 Interim Decision of the Tribunal, 2012 HRTO 890, both of which advised the respondent that failure to respond to the Application could result in the Tribunal deeming the respondent to have accepted all of the allegations in the Application, and proceeding to determine the Application in the absence of the respondent and without further notice to it.
4By Interim Decision dated May 25, 2012, 2012 HRTO 1048, the Tribunal deemed the respondent to have waived all rights with respect to further notice or participation in the proceeding, and directed that the hearing of the Application would proceed without the participation of the respondent. In addition, pursuant to Rule 5.5(a) of the Tribunal’s Rules of Procedure, the Tribunal held that the respondent was deemed to have accepted all of the allegations set out in the Application.
5The hearing of the Application proceeded in the respondent’s absence by way of teleconference.
BACKGROUND
6The applicant testified at the hearing of the Application and also submitted documentary evidence. The applicant’s testimony about the events giving rise to the Application and the impact of the respondent’s actions on her was clear and compelling, internally consistent, free from exaggeration, and plausible. It was also uncontradicted and unchallenged. I accept it as credible.
7The applicant testified that she started to work for the respondent as a massage therapist in July 2011, shortly after completing some training with the respondent and becoming certified as a Thai massage associate. The applicant typically worked four days per week, Saturday through Tuesday, from 10:00 a.m. to 7:00 p.m. The applicant testified that she was paid on a piece-work basis, $15 per massage appointment, and that she typically had five (5) to six (6) appointments per day.
8The applicant became pregnant in late August 2011. She testified that she felt excited and a little nervous.
9The applicant testified that she told Keiko Yang, one of the owners and/or managers of the respondent spa, in September 2011, that she was pregnant almost as soon as she herself found out. The applicant testified that as soon as she told Ms. Yang that she was pregnant, Ms. Yang started to make negative comments about how the applicant’s pregnancy would affect the applicant’s body. Specifically, the applicant testified that Ms. Yang said that pregnancy makes the body ugly and that she herself would not want to be that kind of woman. The applicant testified that Ms. Yang also warned the applicant not to tell any of the respondent’s customers that she was pregnant. The applicant testified that Ms. Yang told the applicant that once her “body tone” changed, she would need a bigger uniform to “hide” her belly.
10The applicant testified that the other owner and/or manager of the respondent spa, Jenny Zhang, also had a negative reaction when the applicant told her that she was pregnant, in September 2011. The applicant testified that Ms. Zhang told her that women were not supposed to work during pregnancy, that they should stay home and “calm down in the house”. The applicant testified that she responded to this by telling Ms. Zhang that she wanted to continue working during her pregnancy, and that she felt happy doing massage during her pregnancy because it was very calming work and there was nice music. The applicant testified that she also told Ms. Zhang that she needed to work during her pregnancy for financial reasons. The applicant testified that she felt devastated and ashamed when Ms. Zhang responded by telling the applicant, “I don’t need any poor Japanese workers in here.” (The applicant is from Japan.) The applicant testified that she felt unable to say anything in response. She testified that she was afraid that the respondent would let her go because she had heard some of her coworkers say that sometimes Jenny Zhang sent people home.
11The applicant testified that Keiko Yang continued to make negative comments about the applicant’s pregnancy periodically, during the fall of 2011. For example, the applicant testified that Ms. Yang sometimes commented, “You’re getting heavier.” Ms. Yang also talked to the applicant about how she preferred not to have children because she did not want to be a heavy woman or to get round. The applicant testified that she tried to ignore Ms. Yang as much as she could.
12In mid to late December 2011, the applicant testified that she had further problems with Keiko Yang. She testified that it was around this time that Ms. Yang told the applicant that her belly was starting to show and that the applicant “looked fat”.
13Then, around the beginning of January 2012, the applicant testified that Ms. Yang started to make negative comments about the applicant’s pregnancy-related appearance every Monday and Tuesday, which were the days that the applicant’s and Ms. Yang’s schedules overlapped. Specifically, Ms. Yang complained that the applicant’s belly was becoming more visible and about the applicant’s “body tone”.
14The applicant testified that the number of customer appointments she had declined significantly after she told the respondent that she was pregnant. However, the applicant testified that she did not say anything to anyone about it. Then in late January the applicant noticed that her schedule was changing a lot. The applicant testified that, on February 5, 2012, she asked the daytime receptionist at the respondent spa what was going on with her schedule. The applicant testified that the receptionist told her that Keiko Yang had instructed the receptionist not to give any more walk-in customers to the applicant, because the applicant was pregnant. The applicant testified that the receptionist also told her that she did not think this was fair, so she was going to try to give the applicant some walk-in customers, even though Ms. Yang had said not to.
15The applicant testified that later that same day, on February 5, 2012, the evening receptionist also confirmed that Ms. Yang had told her that the applicant was not to get walk-in customers any longer because of her pregnancy.
16The applicant testified that she became very upset when she learned that Ms. Yang had ordered that she not be given any more walk-in customers. She testified that she booked the following two days off, which were Monday and Tuesday, February 6 and 7, 2012, to avoid seeing Ms. Yang because the situation was so emotionally stressful. The applicant was approximately six months’ pregnant at that time.
17The applicant testified that she went back to work on February 11, 2012. The applicant testified that, before going to work that day, she knew that she had appointments because she had been notified of them by emails sent through the Google scheduling system used by the respondent. When she arrived at work, however, the applicant testified that her appointment schedule was completely empty.
18The applicant testified that she asked the receptionist what had happened: she knew that Ms. Yang had not wanted her to get walk-in customers; however, even the customers who had specifically booked appointments with the applicant had been removed from her schedule. The applicant testified that the receptionist told her that Keiko Yang had taken away the applicant’s appointments and reassigned them to other therapists.
19The applicant testified that she was very upset to hear this. She asked the receptionist to get Ms. Yang on the phone so that the applicant could speak to her, which she did. The applicant testified that when she spoke to Ms. Yang on the phone, she asked her why she had cancelled her appointments. The applicant testified that Ms. Yang replied that the applicant could not work on customers because the applicant was pregnant. The applicant testified that Ms. Yang told her that she did not want to see a pregnant woman in her spa and that it would not attract customers to her place of business. The applicant testified that Ms. Yang also tried to suggest to her that customers had complained about the applicant. However, the applicant testified that that was not true. She testified that she had never had any customer complaints and that Ms. Yang had in fact always said that the customers liked the applicant. In any event, the applicant testified that Ms. Yang had even taken away the appointments that the applicant had with customers who had specifically booked with her.
20The applicant testified that she told Ms. Yang that it was against the law for her to discriminate against the applicant because she was pregnant. The applicant testified that Ms. Yang laughed at her in response and told the applicant that she was an independent contractor, not an employee. The applicant testified that she asked Ms. Yang what her status with the respondent was then, and also why the respondent had her Holistic Practitioner certificate posted at the spa if the applicant was not an employee. The applicant testified that Ms. Yang did not answer.
21The applicant testified that suddenly Ms. Yang’s cousin, who was with Ms. Yang, picked up the phone (whether she picked up an extension or took the phone from Ms. Yang is not clear) and told the applicant, “You’re fired. Don’t come to work.”
22The applicant testified that she felt shocked and her heart was pounding as she got off the phone. She testified that she told her coworkers what had happened and was getting ready to go home when Jenny Zhang called the spa and spoke to the applicant. The applicant testified that she told Ms. Zhang how upset she was about being let go, given how hard she had worked at the spa. The applicant testified that Ms. Zhang told her that she had no idea what was going on and told the applicant that she should return to work the following day to work things out. The applicant testified that she told Ms. Zhang that she would do that.
23However, after the applicant got off the phone with Ms. Zhang, she asked the receptionist to bring her appointment schedule up on the computer again to check something. The applicant testified that the receptionist could not do so because, by that point, the applicant’s name and all her records had been completely removed from the respondent’s calendar. The applicant testified that this could only have been done by Keiko Yang who controlled the respondent’s scheduling system from off-site.
24The applicant testified that she left the spa and did not return the next day or any point afterwards. Although she had initially indicated to Ms. Zhang that she would return the following day to see if things could be worked out, once she saw that Keiko Yang had removed not only the applicant’s appointments but even the applicant’s name from the respondent’s schedule, it was clear to her that Keiko Yang did not want her around and that in fact her employment had been terminated by Ms. Yang.
25The applicant testified that one of the respondent’s receptionists sent her a Facebook message not long afterwards, indicating that the respondent wanted to send the applicant some money that it owed her and seeking to confirm the applicant’s mailing address. The applicant testified that she received a cheque in the mail from the respondent dated March 7, 2012 not long afterwards. There was no letter with the cheque.
26The applicant testified that, after losing her job with the respondent in February 2012, she tried to find alternate employment. However, given that she was six months’ pregnant and only available to work until May 2012 at the latest (her due date was in May), she was unable to find another job.
ANALYSIS AND DECISION
27The relevant sections of the Code are as follows:
5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
5.(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.
28In order to establish that she has been discriminated against contrary to s.5 of the Code, the applicant must establish that the respondent treated her in a distinct and disadvantageous manner with respect to employment because of pregnancy, and therefore because of her sex (s.10(2)). In my view, the applicant has clearly done this.
29Parenthetically, although I agree with the applicant, and the respondent has been deemed to accept, that the applicant was an employee of the respondent, and that the respondent discriminated against the applicant “with respect to employment”, I note that the Code equally prohibits discrimination against women based on pregnancy with respect to contracts (s.3 and s.10(2)). In any event, the Tribunal has held that the Code’s prohibition against discrimination “with respect to employment” in s. 5 covers a broad range of workplace relationships, including sub-contractors and independent contractors. See Garofalo v. Cavalier Hair Stylists Shop Inc., 2013 HRTO 170 at para. 169; Szabo v. Poley, 2007 HRTO 37 at paras. 15-16; and Sutton v. Jarvis Ryan Associates, 2010 HRTO 2421 at paras. 95-100. Accordingly, even if the respondent was correct in its assertion that the applicant was an independent contractor, its actions would have still been prohibited by the Code.
30The applicant’s evidence, which I have accepted as credible, establishes that from the time they learned that the applicant was pregnant, the operators and/or owners of the respondent business, Keiko Yang and Jenny Zhang, made demeaning and degrading comments to the applicant about her pregnancy. Ms. Yang, in particular, made a number of very offensive comments to the applicant to the effect that her pregnancy was making and would continue to make her physically unattractive and that this in turn made her unfit for her work as a massage therapist. The applicant submits, and I agree, that the clear inference to be drawn from Ms. Yang’s comments is that she wanted to have “sexy-looking” massage therapists whose physical appearance Ms. Yang thought would appeal to customers; and that the applicant’s pregnancy made her less desirable as an employee. Indeed, the respondent has been deemed to accept this specific allegation as it is contained in the Application.
31By conveying that the applicant’s value as an employee was diminished by her pregnancy and/or the way it changed the applicant’s body, the respondent, through Ms. Yang, very clearly discriminated against the applicant because of her sex. In addition, Ms. Zhang’s comment that the applicant, as a pregnant woman, should not be in the workforce but rather convalescing at home was clearly based on a negative stereotype about pregnant women not belonging in the workplace. Through Ms. Zhang’s comments as well, the respondent treated the applicant in a distinct and disadvantageous manner because of her pregnancy and thus discriminated against the applicant based on her sex. Moreover, insofar as Ms. Yang’s and Ms. Zhang’s comments to the applicant were clearly vexatious and were such that Ms. Yang and Ms. Zhang knew or ought to have known them to be unwelcome, they also constituted sexual harassment contrary to section 5(2) of the Code. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at para. 18-23.
32The applicant has also established that the respondent discriminated against her because of sex by decreasing the applicant’s hours of work during her employment, and by ultimately terminating her employment on February 11, 2012.
33First of all, the respondent has been deemed to accept the allegations that it reduced the applicant’s hours and terminated her employment because of the applicant’s pregnancy, and therefore because of the applicant’s sex. This alone is a sufficient basis to find that the respondent reduced the applicant’s hours and terminated her employment because of her pregnancy and therefore for discriminatory reasons.
34In addition, the applicant has established through her evidence that the respondent discriminated against her by reducing her hours of paid work because the applicant was pregnant. Specifically, I am prepared to conclude that the reduction in the applicant’s hours was due to the respondent’s decision to assign customers to therapists other than the applicant, because the applicant was pregnant. I come to this conclusion based on the overall evidence, including the timing of the reduced hours (i.e. after the applicant told the respondent she was pregnant); Ms. Yang’s many negative comments to the applicant about her pregnancy-related appearance; evidence that Ms. Yang told the receptionists at the spa not to assign any walk-in customers to the applicant; and Ms. Yang’s own admission to the applicant on February 11, 2012 that she had removed all of the applicant’s appointments from the calendar based on her perception that the applicant could not do customers because of her pregnancy and because, as a pregnant woman, the applicant would not attract customers to the business.
35Finally, I find that the applicant has established that the respondent terminated the applicant’s employment with it solely because of her pregnancy. Again, there is really no question of this as the respondent has been deemed to accept the allegation in the Application that the applicant experienced discrimination “in being fired”. In any event, the fact that Ms. Yang completely cancelled all of the applicant’s February 11, 2012 appointments and told the applicant that this was because of her pregnancy; failed to advise the applicant to disregard her cousin’s comment, obviously made in her presence, that the applicant was fired; and then promptly removed the applicant from the respondent’s schedule altogether, in my view, leads inescapably to the conclusion that the respondent effectively terminated the applicant’s employment because she was pregnant, and thereby discriminated against her because of sex, contrary to s.5 of the Code.
36In coming to this conclusion, I have considered a February 14, 2012 email to the applicant from Jenny Zhang, in which Ms. Zhang expresses the hope that the applicant will return to work and states that no one has the right or power to fire the applicant. I note that this email was sent subsequent to the applicant’s February 11, 2012 email to Ms. Zhang advising that she intended to file a human rights Application against the respondent. Ms. Zhang’s February 14, 2012 email does not change my view that the respondent terminated the applicant’s employment. In my view, the respondent effectively terminated the applicant’s employment on February 11, 2012 when the owner and/or manager of the respondent business, Keiko Yang, reassigned the applicant’s customers and removed the applicant from the work schedule altogether. The fact that Ms. Zhang may have subsequently offered to re-employ the applicant does not change that fact. Moreover, I agree with the applicant that, given the months of discriminatory and harassing treatment she experienced while employed by the respondent from September 2011 onwards, it was not reasonable to expect her to return to the respondent’s employ after February 11, 2012, nor was she obliged to do so.
REMEDY
37Section 45.2(1) of the Code establishes the Tribunal’s remedial authority in this case:
45.2(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 of the infringement, including compensation 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 this Act.
38The Tribunal has broad discretion to award remedies which it considers appropriate in the circumstances and which advance the remedial purposes of the Code. See Giguere v. Popeye Restaurant, 2008 HRTO 2, at para. 80.
39In this case, the applicant seeks orders pursuant to s. 45.2(1) of the Code requiring the respondent to provide her with monetary compensation for the injury to her dignity, feelings and self-respect, as well as compensation for specific financial losses arising out of the respondent’s discriminatory actions. In addition, the applicant seeks an apology from Keiko Yang, and certain public interest remedies aimed at promoting future compliance with the Code.
Monetary Compensation
Injury to Dignity, Feelings and Self-respect
40The applicant did not ask for a specific amount of monetary compensation for the injury to her dignity, feelings and self-respect at the hearing of this matter. Rather, she indicated that she preferred to leave it to the Tribunal to determine an amount that would be appropriate, in keeping with the range of monetary compensation normally awarded in cases like hers.
41The applicant gave detailed evidence during the hearing about the impact the respondent’s actions had on her.
42The applicant testified that she felt very humiliated by the things Keiko Yang and Jenny Zhang said to her after the applicant disclosed to them that she was pregnant. The applicant testified that Ms. Yang’s many negative comments about her pregnancy and about her “body tone” undermined her self-respect and caused her a significant amount of emotional stress to the point that she worried that her work environment was unhealthy for her unborn baby. The applicant testified that she felt particularly ashamed when Ms. Zhang said that, as a pregnant woman, the applicant should not be working and that she did not need any poor Japanese workers at the spa. The applicant testified that the degrading treatment the respondent subjected the applicant to after she disclosed that she was pregnant deprived her of the happiness that she would have otherwise felt during her pregnancy.
43The applicant testified that she was shocked and extremely upset when the respondent terminated her employment. The applicant testified that she had never been fired in her life and that she felt disgraced and ashamed by the termination of her employment.
44The applicant testified that the impact of her termination on her financial situation was dire. She testified that she had to rely on credit cards to get by financially. The applicant testified that it was stressful and humiliating to be without income, especially at a time when she had to prepare for the arrival of her baby. The applicant testified that, although she did not want to, she had to ask to borrow money from her brother in Japan so that she could get the things she needed for the baby’s arrival. The applicant emphasized how significant this was by explaining that she had never asked her family for money ever since she came to Canada in 2000.
45The applicant also testified that she became depressed because of what transpired with the respondent. The applicant testified that this very tough period for her was made worse by the fact that, although the applicant’s spouse was very supportive, the applicant felt unable to tell her mother in Japan that she had lost her job, because she did not want to give her extra worries.
46In addition, the applicant testified that the manner in which the respondent treated her undermined her self-respect and sense of self-worth. The thrust of the applicant’s testimony in this regard was that she blamed herself, to some extent, for what had happened to her. For example, the applicant testified that she felt ashamed for not having gone back to school soon after arriving in Canada in 2000. If she had, she testified, she could have gotten a good job where she was well-treated, instead of having to put up with abusive treatment working for someone like the respondent. The applicant testified that she also questioned whether the fact that she had put up with the respondent’s mistreatment meant that she had no self-respect. She testified that she worried that she had been “wrong” to stay working for the respondent as long as she had. On the other hand, the applicant also acknowledged that her decision to try to keep going in difficult circumstances so that she could earn money she needed to take care of her baby reflected positively on her.
47In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at para. 52-54, the Tribunal summarized the principles on which monetary compensation for injury to dignity, feelings and self-respect is awarded:
The Tribunal’s jurisprudence … 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…
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…
48Having considered the matter carefully, and taking into account the relevant principles, I find that it is appropriate to order the respondent to provide the applicant with the sum of $20,000.00 as monetary compensation for the infringement of her right to be free from discrimination and for the injury to her dignity, feelings and self-respect. In my view, this substantial amount is warranted in view of the objective seriousness of the respondent’s conduct towards the applicant, as well as the significant impact that conduct had on the applicant at a particularly vulnerable point in her life.
49I regard the respondent’s discriminatory and harassing behaviour towards the applicant as objectively very serious for a number of reasons. First, I note that the respondent in this case made a number of very hurtful and explicitly degrading comments to the applicant about the fact that she was pregnant, even going so far as to tell the applicant that she looked “fat” and “ugly” because of the pregnancy-related changes to her body. In addition, the respondent’s discriminatory actions resulted in reducing the applicant’s income during the course of her employment, and ultimately in the applicant losing her job altogether. This was obviously very serious conduct. In addition, the extremely hurtful nature of the respondent’s discriminatory and harassing conduct was exacerbated by the fact that when the applicant tried to assert her right not to be discriminated against because of her pregnancy on February 11, 2012, Ms. Yang laughed at the applicant and dismissed her out of hand. Finally, the respondent’s discriminatory and harassing conduct is objectively very serious, in my view, because it occurred over a prolonged period of several months, from September 2011 to February 2012. All of this militates in favour of an award at the higher end of the applicable range of damage awards in cases involving pregnancy-related discrimination and harassment.
50In addition, I find that the respondent’s actions had a very serious impact on the applicant because she was particularly vulnerable during the relevant time frame. Given the applicant’s limited financial means, combined with the fact that she had a baby on the way, the applicant understandably felt that she could not leave the respondent’s employ despite the blatantly discriminatory and harassing behaviour she was regularly subjected to at work after disclosing to her employer that she was pregnant. When the applicant’s employment was terminated by the respondent, because of her pregnancy, in February 2012, the applicant was six months’ pregnant and unable to find alternate employment to replace her lost income before her baby arrived in May 2012. I have no difficulty accepting the applicant’s evidence that this was very humiliating and stressful and put her under a great strain at what ought to have been a happy time for her.
51In deciding that $20,000.00 is an appropriate amount to award the applicant in this case, I have considered the Tribunal’s other awards in cases involving termination of employment because of pregnancy. Of these, I have found the Tribunal’s decision in Graham v. 3022366 Canada Ltd., 2011 HRTO 1470, to be particularly relevant. In that case, as in this one, the Tribunal found that the respondent employer removed the applicant from the work schedule based on unsupported assumptions and stereotypes about her ability to continue to work while pregnant. (In Graham, the respondent took the position that it was dangerous for the applicant, as a pregnant woman, to continue to perform her regular patrol duties as a security guard.) The Tribunal awarded $20,000.00 to the applicant as monetary compensation for injury to dignity, feelings, and self-respect. I find that such an award is also appropriate in this case as well.
52In coming to this conclusion, I recognize that the applicant in Graham lost a job that she had been in for almost two years, whereas the applicant in this case was employed for only six or seven months before her employment was terminated. However, I find $20,000 to be an appropriate award based on the overall circumstances of this case, despite the applicant’s relatively short-term service. In my view, the respondent’s particularly egregious and even abusive treatment of the applicant in this case renders the respondent’s discriminatory and harassing conduct at least as serious as that of the respondent in Graham. Moreover, the applicant in this case was no less vulnerable than the applicant in Graham.
53In determining the appropriate amount of monetary compensation, I have also carefully considered the oft-cited case of Maciel v. Fashion Coiffures, 2009 HRTO 1804. There, the Tribunal awarded $15,000 in monetary compensation for injury to dignity, feelings, and self-respect to an applicant who was terminated on her first day of work because she informed her new employer that she was four month’s pregnant. In my view, a somewhat higher award is justified in this case than was awarded in Maciel because, unlike the applicant in Maciel, the applicant in this case was subjected to months of discriminatory treatment in the form of on-the-job offensive and harassing comments before her employment was terminated because of her pregnancy.
Monetary Compensation for Lost Wages
54In this case, the applicant also seeks monetary compensation for wages lost as a result of the discrimination she experienced.
55As noted above, the applicant testified that, before she told the respondent that she was pregnant, she had customer appointments (and was therefore paid) for approximately five (5) to six (6) hours of work per day. After she told the respondent that she was pregnant, the applicant estimates that the respondent decreased the applicant’s appointments and paid hours to approximately three (3) hours per day. Accordingly, the applicant estimates that, after she told the respondent that she was pregnant, she lost approximately two (2) hours of paid work per day on average. To remedy this, the applicant seeks an award of $3000.00 representing 200 hours of lost wages, to compensate her for hours she lost in respect of the period from September 2011, when she told the respondent that she was pregnant, to February 11, 2012, when her employment was terminated. In addition, the applicant seeks $2000.00 to compensate her for the customer tips she lost as a result of her hours being reduced by the respondent during the period from September 2011 to February 2012.
56In addition, the applicant also seeks an Order from the Tribunal requiring the respondent to compensate her for the two months’ wages she lost in February and March 2012 following the termination of her employment. Although the applicant could have sought lost wages up to the date on which she delivered her baby in May 2012, she took the position during the hearing that it would be “fair enough” for the respondent to compensate her just to the end of March 2012 because she was “not sure” if she would have worked in April or May 2012.
Wages lost as a result of termination of employment
57I begin with the applicant’s claim for wages lost from February 11 to March 31, 2012, following the termination of her employment.
58I have found that the respondent effectively terminated the applicant’s employment on February 11, 2012 by reassigning all of the applicant’s customers and by removing the applicant from the work schedule altogether. The applicant is entitled to compensation for the wages she lost as a result of being put out of work by the respondent.
59I accept the applicant’s evidence that, before she told the respondent that she was pregnant, she worked and was paid for five hours per day, on average, at a rate of $15 per hour. Accepting also that the applicant ordinarily worked four days per week, Saturday through Tuesday, I calculate that the applicant would have worked 29 days in respect of the period from February 11, 2012 to and including March 31, 2012. Accordingly, I find it appropriate to order the respondent to pay the applicant the sum of $2,175.00 (i.e. 5 hours per day x $15.00 per hour x 29 days) to compensate the applicant for wages lost following the termination of her employment until the end of March 2012.
Wages lost during employment as a result of reduction in hours
60I have also found that the respondent discriminated against the applicant during the course of her employment by reducing the number of client appointments the applicant had, and therefore her wages, after the applicant told the respondent that she was pregnant. It follows that the applicant is entitled to monetary compensation for the financial loss she incurred as a result of the respondent reducing her pay during her employment. Quantifying this loss, however, is difficult.
61The applicant does not have access to the respondent’s records which would presumably show precisely what hours the applicant worked before and after telling the respondent that she was pregnant. Accordingly, the best that the applicant can do is to estimate the loss she incurred as a result of the reduction in her hours. The applicant’s calculation is based on her estimate that she lost 2/5 of her average daily customer appointments after telling the employer that she was pregnant, or $30 per day. Although I do not doubt the applicant’s veracity, I am concerned that her estimate – representing as it does a 40 percent reduction in wages – is somewhat high. For one thing, although the applicant testified that, in general, her hours of paid work dropped from five or six per day to approximately three per day, she acknowledged that she still occasionally had busy days where she had five or six customers, as before.
62Although the respondent’s failure to participate in this matter and to produce the relevant records makes it impossible to calculate the applicant’s wage loss during employment with precision, I feel that it is reasonable to award the applicant monetary compensation for a 20 percent loss in wages (or one (1) hour per day worked) in respect of the period from Saturday, October 1, 2011 to and including January 31, 2012. I think it is reasonable to use Saturday, October 1, 2011 as the date on which the applicant’s losses began to accrue given that the applicant could not recall precisely when in September 2011 she informed Ms. Yang and Ms. Zhang of her pregnancy.
63The applicant’s testimony and documentary evidence confirms that, with the exception of Saturday and Sunday, December 24 and 25, 2011, and Sunday, January 1, 2012, the applicant worked four days per week, Saturday through Tuesday, during the period from October 1, 2011 to January 31, 2011 for a total of 69 days. Accordingly, I find it appropriate to order the respondent to pay the applicant the sum of $1,035.00 (i.e. one (1) hour per day x $15.00 per hour x 69 days) to compensate the applicant for wages lost as the result of the respondent’s reduction in the applicant’s paid hours of work after learning that she was pregnant.
64In addition, I order the respondent to pay the applicant the amount of $37.50 for losses incurred by her on Saturday, February 4, 2012 and Sunday, February 5, 2012. The applicant did have the records for those days, which show that she worked 7.5 hours on both of those dates combined instead of the 10 to 12 hours she testified she would have worked, had the respondent not reduced her hours because of her pregnancy. The applicant is entitled to the difference of 2.5 hours, for a total of $37.50 (2.5 hours x $15 per hour).
Tips
65As noted above, the applicant also seeks monetary compensation for the tips she lost as a result of the reduction in her hours from September 2011 to February 2012. The applicant’s uncontradicted testimony was that her customers typically tipped her between $10 and $25 per one-hour appointment. The applicant proposes that the amount of monetary compensation to be awarded for lost tips should be calculated on the basis of the conservative estimate of $10 per hour.
66I have found it appropriate to order the respondent to pay the applicant the equivalent of 71.5 hours’ lost wages (69 hours from October 1, 2011 to January 31, 2012, and 2.5 hours for hours lost on February 4 and 5, 2012). It is also appropriate to order the respondent to compensate the applicant for tips lost as a result of not being permitted to work those 71.5 hours. Accordingly, on the basis of the applicant’s uncontradicted evidence that she typically earned at least $10 per hour in tips, I find it appropriate to order the respondent to pay the applicant the amount of $715.00 to compensate her for tips lost up to the time of the termination of her employment.
67I note that the applicant did not seek compensation for tips lost following the termination of her employment. Accordingly, none is awarded.
Other financial losses
68The applicant also seeks monetary compensation for certain other amounts: $300.00 to reimburse her for the money she paid to the respondent to receive training as a massage therapist before starting to work there in July 2011; and $150.00 that she was required to spend on a uniform.
69In my view, it is not appropriate to order the respondent to reimburse the applicant for these amounts. The expenses in question were incidental to the applicant’s employment with the respondent. They were not incurred as a result of the discriminatory treatment the applicant experienced during her employment, or as the result of the termination of her employment by the respondent. This aspect of the applicant’s request for monetary compensation is denied accordingly.
Public Interest Remedies
Apology
70The applicant also seeks an Order from the Tribunal directing that Keiko Yang provide the applicant with a written apology for the hostile manner in which she treated the applicant because of her pregnancy.
71As a general rule, the Tribunal is reluctant to order apologies pursuant to its remedial powers under the Code. As the Tribunal stated in Abdallah v. Thames Valley District School Board, 2008 HRTO 230:
Historically, the jurisprudence of this Tribunal has generally declined to order parties to provide an apology on the basis that such orders are viewed as inappropriate or an ineffective remedy and raise potential freedom of expression concerns. (See also Turnbull v. Famous Players, 2001 CanLII 26228 (ON H.R.T.), (2001) 40 C.H.R.R. 333 at para. 264, and the cases cited therein).
72Consistent with the Tribunal’s jurisprudence on this point, I am not persuaded that it would be appropriate or effective to order an apology in this case.
Training
73The applicant also seeks an order requiring the respondent to have Keiko Yang and Jenny Zhang undergo training to familiarize them with their obligations under the Code. The applicant requests that such training focus in particular on the respondent’s obligation not to discriminate against pregnant women in the workplace.
74In my view, the respondent would benefit from training on its obligations under the Code. Accordingly, in accordance with the Tribunal’s remedial authority under s. 45.2 of the Code, I order that, within 30 days of the date of this Decision, the respondent have its managerial staff complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101). The respondent is also directed to confirm to the applicant within 60 days of this Decision that it has complied with this Order regarding training.
Posting
75The applicant also requests an order requiring the respondent to post the Human Rights Code in the workplace so that other employees will know their rights and that it is against the law to discriminate against an employee because she is pregnant.
76Although I do not think it would necessarily be effective to require the respondent to post the entire Human Rights Code in the workplace, I find that this is an appropriate case in which to order the posting of no fewer than two Human Rights Code cards (available from the Ontario Human Rights Commission at http://www.ohrc.on.ca/en/human-rights-code-cards) in at least two prominent locations in the respondent workplace such that they will be regularly seen by both customers and the massage therapists.
ORDER
77The Tribunal orders as follows:
Within 30 days of the date of this Decision, the respondent will pay the applicant $20,000.00 as monetary compensation for injury to the applicant’s dignity, feelings, and self-respect, as well as infringement of her inherent right to be free from discrimination on the basis of sex.
Within 30 days of the date of this Decision, the respondent will pay the applicant the amount of $1,072.50 to compensate her for wages lost in respect of the period from October 1, 2011 to February 5, 2012, inclusive.
Within 30 days of the date of this Decision, the respondent will pay the applicant the amount of $2,175.00 to compensate her for wages lost in respect of the period from February 11, 2012 to March 31, 2012, inclusive.
Within 30 days of the date of this Decision, the respondent will pay the applicant the amount of $715.00 to compensate the applicant for lost tips in respect of the period from October 1, 2011 to February 5, 2012, inclusive.
Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision, in accordance with the Courts of Justice Act, R.S.O. c. C.43.
Within 30 days of the date of this Decision, the respondent shall have its managerial staff complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101).
Within 60 days of the date of this Decision, the respondent will confirm to the applicant, in writing, that it has complied with the above-noted order regarding training.
Within 30 days of the date of this Decision, the respondent shall post no fewer than two Human Rights Code cards (available from the Ontario Human Rights Commission at http://www.ohrc.on.ca/en/human-rights-code-cards) in at least two prominent locations in the respondent workplace such that they will be regularly seen by both customers and the massage therapists.
A copy of this Decision will be delivered to the respondent to facilitate compliance with this order.
Dated at Toronto, this 7th day of June, 2013.
“Signed by”
Sheri D. Price
Vice-chair
CORRECTION
The name of the respondent “Hotlomi Spa” is corrected to “2252419 Ontario Inc. c.o.b. Hotlomi Spa” per the Tribunal’s Decision of December 6, 2013, 2013 HRTO 2023.
Dated at Toronto, this 6th day of December, 2013.
“Signed by”
Sheri D. Price
Vice-chair