HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gerry Chittle
Applicant
-and-
1056263 Ontario Inc. and Richard Falkner
Respondents
DECISION
Adjudicator: Judith Keene
Indexed as: Chittle v. 1056263 Ontario Inc.
APPEARANCES
Gerry Chittle, Applicant
Patrick F. Milloy, Counsel
1056263 Ontario Inc. and Richard Falkner, Respondents
James Branoff, Counsel
Introduction
1This is a Decision in respect of an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.
2The applicant was dismissed from a manager’s position at a Domino’s Pizza restaurant owned by the respondent employer. The applicant asserts that he was dismissed for reasons related to disability, shortly after he was hospitalized for heart problems. The personal respondent says that there were ongoing problems with the applicant’s work, that the applicant was on a 90-day probation period when he was dismissed, that he had made the decision to terminate the applicant’s employment prior to hearing about the applicant’s hospitalization, and that medical issues had nothing to do with his dismissal.
3On the facts of this case, I have found a breach by the respondents of section 5 of the Code, on the ground of disability. My reasons are set out below.
The evidence of the parties
4Both parties were represented. I heard evidence from the applicant, from the personal respondent and from Dr. Martin McFarlane (whose evidence will be dealt with later in this Decision). All testimony was heard under affirmation. As Dr. McFarlane gave evidence first, it was not necessary to exclude him from hearing.
5During the cross-examination of the applicant and the evidence of the respondent, there were a number of objections from counsel for the applicant to statements by counsel or evidence that indicated potential contradictions to the evidence given by the applicant, based on violation of the rule in Browne v. Dunn [(1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.)]. In the circumstances of this case and in the interest of proceeding with the hearing in as efficient a manner as possible, I relied upon Professor Mullan's decision in Modi v. Paradise Fine Foods Ltd. 2005 HRTO 19, and ruled that questions that might violate the rule in Browne v. Dunn could be asked, although the weight of the relevant evidence might be adversely affected. In the event, the applicant was not recalled.
6There is some difference of opinion between the parties in respect of both the date the applicant first started employment with the respondents and the date he was informed that his employment was terminated. The differences in position are a matter of very few days in respect of each; the parties agree that the applicant commenced work toward the end of April 2010 and that his employment was terminated toward the end of August 2010. The significance of the precise dates and my finding as to what they were will be dealt with below.
7The applicant testified that for approximately a year from February 2009 he was employed as a manager of the Domino's pizza outlet in Belle River, Ontario referred to by the parties and in this decision as “the Belle River store” or “the store”. The parties are in agreement that the previous owner of the Belle River store was in financial difficulties, and that the applicant had left his employment there in February of 2010. The applicant stated that he understood the store had closed for a period of time. The personal respondent indicated in his testimony that the store was never closed; the franchisor informed the previous owner of the restaurant that the personal respondent would be taking it over on a Friday, and the personal respondent commenced operations on the following Monday.
8The applicant testified and the respondents did not dispute that during the applicant’s employment with the previous owner of the Belle River store, the store, which had been rated according to Domino's “star” rating system, went from three stars to five stars. The applicant indicated that the reason the store's assessment was raised to five stars was that he had “worked with staff, training them to answer phones, address customers properly, maintain proper procedures in regard to food production and timeliness”. The applicant indicated that the staff were usually young people who needed to be shown proper procedures and given guidelines.
9The applicant stated that he was looking for work when he received a call from the personal respondent toward the end of April, 2010. It is undisputed that the applicant was recommended to the personal respondent by a Ms. Tower, administrative assistant to the president of Domino's. The applicant identified Ms. Tower as a family friend.
10The respondent has been a franchise holder with Domino's Pizza for some 22 years. He acquired the store in Belle River in April of 2010. The respondent testified that he did not know the applicant previously, and first heard his name when it was mentioned by Cheryl Tower at head office when he discussed staffing the new store with her. The respondent testified that Ms Tower had said nothing about the applicant's health.
11The applicant recalled that he had an interview at the store and was offered the job on April 26, 2010. He said that the respondent asked “how are you?”, that he responded that he was fine and that they discussed the job and settled on a salary of $520 per week to start immediately. According to the applicant there were understood to be no minimum hours; he stated that as a manager it was usual to work 45 hours a week and often more when covering staff vacancies. The applicant stated that he was given to understand that he would qualify for health benefits with other employees of the personal respondent after 90 days of employment. The applicant testified that nothing else was discussed and that he started immediately to telephone staff in order to get the store staffed and running as soon as possible.
12In both examination and cross-examination, the applicant was asked whether there was any mention of a probationary period. The applicant responded that the first time he heard about a probationary period from the respondent was when he got his record of employment at the time his employment was terminated. He indicated that a probationary period was not unusual and that he might have accepted such a condition, but he was not surprised that there was no probationary period because he had so recently been a manager at the same store.
13The personal respondent stated during his examination in chief that he and the applicant discussed the applicant’s rate of pay and that he told the applicant “after a 90 day probation you can go on group benefits”.
14The applicant stated that he acted quickly to find staff, some of whom came from one of the respondent's other Domino's stores, that he undertook some training and that the store “reopened” approximately a week after he was hired.
15The personal respondent confirmed that he interviewed the applicant on April 26, 2010 and hired him that day. However, the respondent's recollection of when the applicant started work differs from that of the applicant; the respondent stated that the applicant could not start right away, and that the first day of work for the applicant was April 29, 2010. The respondent admitted that he had entered April 26, 2010 as “first day worked” on the applicant’s record of employment, but stated that this had been a mistake on his part. This dispute will be addressed later in this Decision.
16The parties agree that, during the course of the applicant's employment, the personal respondent came to the store “probably” once a week and stayed for a brief period. The applicant’s recollection was that the period was usually about half an hour; the respondent estimated that he might stay for periods of 15 minutes to two hours.
17On June 3, 2010, there was an evaluation by Domino's head office with a corresponding report in which the store received a three-star rating. The applicant stated that he was not pleased but was not surprised that the store was not up to the five star standard, since it had been reopened for approximately a month only. He stated that the personal respondent was not pleased when they discussed the three-star rating, but the personal respondent said nothing that would make him think that his job was in jeopardy. They worked out a plan for improvement.
18The personal respondent testified that at some point during the applicant’s employment, he found out that the applicant was diabetic. He did not recall precisely when he found this out, and apparently the subject arose because he noticed that the applicant had some bread and peanut butter on hand at work, and the applicant told him that this was to keep his blood sugars appropriately balanced.
19In cross-examination, the applicant testified that on July 14, 2010 while he was finishing his shift he noticed shortness of breath and a heaviness in his chest. He closed the store and went to the hospital directly. He was admitted and remained in hospital until July 23, 2010.
20The applicant stated that he contacted the personal respondent the day after his admission to hospital, after going through tests for much of the night. He told the personal respondent that he was admitted to hospital and that the doctors were doing tests on his heart. He stated that the personal respondent asked how long he would be in hospital and “I said I had no idea-- I would let him know”.
21The personal respondent agreed that the applicant telephoned him and informed him that he was hospitalized and would be undergoing tests, and also agreed that the call took place on July 15, 2010. The personal respondent stated that he did not know how long the applicant would be off work at first. He denied that he was given information about cardiac problems and testified that his understanding was that the applicant's hospitalization was related to his diabetes.
22The personal respondent stated that he and his son stepped in immediately to take over management of the store. He testified that, when he did so, he uncovered several problems with the applicant's management of the store (these are further discussed below in review of the evidence). The personal respondent stated that he decided to fire the applicant while he was still in hospital but waited until the applicant was released as he did not want to worry him.
23The applicant said that he spoke to the personal respondent again on 23 July telling him that he was being released from hospital but could not go back to work yet. the applicant testified that the doctor on duty had said that he should “go on sick leave for a few weeks”. For this reason, applicant asked for his record of employment so that he could apply for Employment Insurance sickness benefits.
24The applicant testified that the personal respondent called him on July 29, 2010, and told him that he had a Record of Employment (“ROE”) ready for pickup. When the applicant picked up his record of employment at the store, it indicated that his employment was being terminated because he “did not pass probation”. The applicant stated that he was shocked, because nothing had been said about probation.
25The applicant was not cross-examined about whether he was told by the respondent that his employment was terminated over the telephone or at a personal meeting. In his Response, the personal respondent indicated that he had met with the applicant when he gave him his record of employment and told him that he “did not pass probation”. Toward the end of his cross-examination, the personal respondent indicated that he was not sure that he had actually met with the applicant; he thought that perhaps his son had met with him.
ANALYSIS
Burden of proof and facts to be established
26The evidentiary burden is on the applicant to establish that, on a balance of probabilities, a prima facie case of discrimination exists (Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, at para.119). In Ontario (Human Rights Commission) v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 1985 (S.C.C.), at para. 28, a prima facie case was described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent. More recently, in Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court stated:
…to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the [area]; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. (at para. 33)
27Upon the presentation of a prima facie case, the evidentiary burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory. Alternatively, the respondent may raise a statutory defence, to demonstrate on a balance of probabilities that the applicant’s allegations do not amount to discrimination (see Moore, above; Chau v. Olymel S.E.C.\L.P., 2009 HRTO 1386). Even if valid and non-discriminatory reasons exist for an adverse decision affecting employment, if one of the reasons for a decision involves a prohibited ground of discrimination, that decision infringes the Code. It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see for example Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 1989; CanLII 97 (S.C.C.), Filion v. Capers Restaurant, 2010 HRTO 264.
28Direct evidence of discrimination, such as testimony from a witness to discriminatory conduct, is not necessary to establish a breach of the Code. The applicant may rely on circumstantial evidence, which may include evidence of actions or omissions on the part of the respondent that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to provide evidence of discrimination. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. Evidence must always be sufficiently clear, convincing and cogent to satisfy the “balance of probabilities” test stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53. In that case, the Supreme Court reaffirmed the nature of the civil standard of proof, and discussed the difficulties inherent in a determination as to whether the testimony of one party is more reliable than that of another. The Court ruled that, where proof is on a balance of probabilities, the trier of fact must not consider the witness’s evidence in isolation, but should consider the totality of the evidence.
29In cases in which discrimination in employment is alleged, the applicant must establish an adverse impact in respect of employment. An adverse impact may arise because of different treatment, or because of identical treatment (see s.11 of the Code), and in either case, the applicant must also establish that the adverse impact was related to a personal characteristic listed in the Code.
30In this case, the applicant claims that he had a disability as defined in the Code at the relevant time, that he suffered an adverse impact with respect to employment, and that the disability was one of the reasons for the adverse treatment.
31There is no dispute that the applicant has established an adverse impact (being fired) in respect of employment. The respondent disputes that the applicant had a disability at the relevant time and, in the alternative, denies that disability was one of the considerations that informed the decision to terminate the applicant's employment.
32The respondents gave considerable evidence directed to establishing that the applicant’s performance was poor. As I noted during the hearing, an Application under the Code in respect of employment is not the same as an action in wrongful dismissal, although evidence in relation to performance may be relevant for a number of reasons; for example, if the applicant claims that the respondent’s performance-related reasons for a dismissal were pretextual.
33A respondent may establish that s/he had grounds to dismiss an applicant, but there may still be a breach of the Code if, as in this case, the evidence as a whole indicates that one or more reasons for the dismissal was related to a ground of discrimination under the Code. I have dealt in some length below with the respondent’s evidence in respect of performance. In the circumstances of this case, that evidence is relevant to two questions. The first is whether the evidence supports the respondents’ claim that the decision to fire the applicant was taken as of the “beginning of July”, before July 15, 2010, the date that the applicant informed the personal respondent of his hospitalization. The second area of relevance goes to the calculation of a compensatory award for loss of income; if an applicant was likely to lose his or her employment for reasons unrelated to the Code, the amount of the award may be affected.
34Mindful of the guidance recently provided by the Court of Appeal of Ontario in Peel Law Association v. Pieters, 2013 ONCA 396, I have considered the evidence given by both parties, as a whole, in concluding that the applicant has met the legal burden of proof, establishing, on a balance of probabilities, that discrimination has occurred.
Existence of a disability at the relevant time
35The first witness was Dr. Martin McFarlane, M.D., CCF PFCFP. In his written statement, Dr. McFarlane gave a list of the applicant's “active” health problems as of December 14, 2012. The list included previous left-sided stroke January 2006, ischemic heart disease, type II diabetes, hypertension and hyperlipidemia.
36Dr. McFarlane was questioned and cross-examined as to his qualifications as an expert witness. He is trained as an internist and cardiologist, with a special interest in cardiac rehabilitation. He has had a medical practice in these areas since 1999. He is presently chief of the internal medicine departments in the Hotel Dieu Hospital and medical director of the Windsor Area Cardiac Rehabilitation Center. Dr. McFarlane's qualifications in internal medicine, cardiology and cardiac rehabilitation were not contested and I accepted him as an expert witness in respect of the issue of whether the applicant had a disability at the relevant time, and the nature and implications of that disability.
37Dr. McFarlane has been involved in the applicant’s medical care since May of 2006. At that time, the applicant had presented himself at a hospital with right-sided numbness and inability to type or spell appropriately. He was subsequently diagnosed as having suffered a stroke. As part of the tests done in relation to the stroke, he had an echocardiogram done that showed poor left ventricular function. He also had a cardiac catheterization which showed some narrowing of his left anterior descending artery.
38The applicant recovered with rehabilitative care. Dr. McFarlane indicated that the applicant did well, which he defined as the applicant's condition “from a cardiac perspective” being “stable” while acknowledging the applicant's underlying medical problems, in which there was no change. The applicant continued to take prescribed medication, including medication for his cardiac condition, but had reduced his regular follow-up visits to every six months by June of 2010, as he reported no new symptoms. However, in July of 2010, the applicant began to experience angina, and on 14 July 2010 he was admitted to hospital. Dr. McFarlane did not see him at that time, but was copied with the reports of the diagnostic tests undergone by the applicant.
39Dr. McFarlane agreed with the suggestion of counsel for the respondent that when the applicant applied for a job in April of 2010 it was unlikely that it appeared as though he had a disability, since his medical conditions involve internal functions.
40In cross-examination, counsel for the respondent suggested that the nine days between July 14 and July 23 might have been occupied by tests. Dr. McFarlane, while indicating that he did not have the records with him to check, stated that usually relevant tests of this nature are done within a day or two and that it would be safe to assume that someone kept in hospital for nine days in those circumstances would be there because his cardiac signs and symptoms were unstable. Response to a suggestion by counsel for the respondent that the applicant having been released from hospital meant that he was doing well, Dr. McFarlane opined that, as he understood the applicant's health status from the reports he reviewed, he himself would not have “let him go home without an angiogram”. He also noted that the physician involved in the applicant's care during his hospital stay in July was later removed from service in the hospital for incompetence.
41In any event, the applicant saw Dr. McFarlane in his office after he was released from hospital. Dr. McFarlane arranged that the applicant be admitted to hospital for an angioplasty and the installation of a stent on August 20, 2010.
42The Code defines disability as follows
- (1) In Part I and in this Part,
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)
43I conclude that, at the relevant time, each of the applicant's ischemic heart disease, Type II diabetes, hypertension and hyperlipidemia met the definition of disability for the purposes of the Code.
Respondents’ evidence as to reasons for termination and date of decision to terminate
44The respondents’ general position, to which the bulk of their evidence was directed, is that the applicant was fired because he was not a good manager; the store was not making a profit. As noted above, even if valid and non-discriminatory reasons exist for an adverse decision affecting employment, if one of the reasons for a decision involves a prohibited ground of discrimination, that decision infringes the Code. It is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant. In this case, the respondents must establish that their sole reason for the termination, is, as they have asserted, the applicant’s poor performance.
45The specific reasons given by the respondents for the termination of the applicant’s employment were summarized by them as follows:
a) being unable to control his food and labour costs in relation to the sales due to waste, loss, errors, unauthorized discounts and giving away free pizza
b) being in conflict with a valued employee and causing the otherwise valued employee to quit
c) not properly training staff in the areas of completing paperwork, bank deposits and counting inventory
d) insisting that he do all the paperwork, deposits and inventory which may have caused him to work extra hours and/or took away time from other duties
46Most of the personal respondent’s testimony as to the information upon which he formed his impression of the applicant’s performance did not identify what information was acquired in the days before he fired the applicant. The only clear exceptions are his evidence relating to the time of the 3-star-rating report discussed below, his discussions with the applicant just after the receipt of that report, and the resignation of an employee named SD, all of which pre-dated the both July 15 and July 29, 2010. Much of the other information upon which the respondents indicate that they based the decision to terminate appears to have come to the personal respondent’s attention after the applicant was fired. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605, the Ontario Divisional Court held, at para. 107, that an employer “may not use after-acquired evidence to support its view that an employee could not be accommodated”. After-acquired evidence has been admitted by the Tribunal in a decision that pre-dated ADGA (see Aubertin c. Couture, 2007 HRTO 29) but the relevance of such evidence to the issues can certainly be questionable (see Devoe v. Haran, 2012 HRTO 1507).
Evidence relevant to the date the respondents decided to fire the applicant
47As noted above, the personal respondent testified that he decided to terminate the applicant’s employment at the beginning of July, before July 15, 2010, when the applicant informed him of his hospitalization. The evidence in support of this assertion was, first, that he did not give the applicant applications to fill out for group insurance benefits, which he said he would ordinarily have given an employee a month before those benefits began, and secondly, that he judged the applicant’s performance to warrant dismissal. I will deal with the point about the benefits plan first.
48In his testimony, the personal respondent could not be sure of the precise date upon which he decided to fire the applicant. For the purposes of this decision, I have accepted that “the beginning of July” is sometime within the first week of July, 2010.
49The personal respondent admitted in cross-examination that he did not tell the applicant at the beginning of July that he would not be going on benefits and in fact would not be continued in employment. The personal respondent testified that he “usually” gave an employee the application forms for the benefits plan a month before the employee was eligible for inclusion. In the circumstances, I do not accept this as strong evidence of a decision to terminate at the beginning of July.
50The personal respondent’s contested assertion that the applicant did not start employment until April 29, 2010 is of relevance to his assertion that, on the basis of this date, the applicant would have been eligible for benefits as of “the beginning of August”. In fact, as I understand the evidence, an employee starting employment on April 29, 2010 would have been eligible on July 27, 2010. On the applicant’s version of his starting date, April 26, he would have been eligible as of July 24, 2010.
51As noted above, there was a difference of opinion between the parties in respect to the applicant’s starting date. The evidence favours the date asserted by the applicant. The personal respondent testified that the store for which he hired the applicant had never closed and was in fact open and serving customers on April 26, 2010, the day he interviewed the applicant. It seems reasonable that the applicant, being otherwise unemployed, would have, as he claimed, started work immediately by making phone calls to get the store fully staffed. The applicant gave detailed evidence of his work activities on April 26, 2010, and he was not cross-examined as to these statements. The starting date given by the applicant is also consistent with the date noted by the respondents on the applicant's ROE. I have concluded on a balance of probabilities that the applicant did commence work on April 26, 2010.
52On this calculation, the applicant would have been eligible for the benefit plan on July 24, 2010. The applicant’s uncontested evidence is that he was not told his employment was terminated until after that date. There is some difference in the testimony between the applicant and the respondent as to precisely what day the applicant was informed that he was fired, with the applicant stating that he got this information on July 29, when he picked up his Record of Employment, and the respondent stating that he “may have” told the applicant that he “did not pass probation” on the phone earlier than the date the applicant picked up his ROE, (which was dated July 28, 2010) but unable to recall what date. I have concluded that it is most probable that the applicant was informed that his employment was terminated on July 29, 2010.
53As noted above, the respondents’ evidence as to the applicant’s performance was not, with two exceptions, specific as to when the personal respondent became aware of the information he relied upon as reasons to fire the applicant. I will deal with these two exceptions, the significance of the “three-star” report, and the resignation of SD, before reviewing the other evidence as to reasons to terminate.
54As part of the evidence as to how well the store was managed by the applicant and by his successor, both parties relied upon reports on the store that were done using the inspection and ratings system used by the head office of Domino's Pizza. Two reports were identified as exhibits; one (Exhibit 4) done on June 3, 2010, just over a month after the applicant was employed by the respondent, scored as “3 stars” and one (Exhibit 5) just under three months after the applicant’s employment was terminated, scored at “5 stars”. In addition, there was uncontested evidence that there had been another report scored at “5 stars” while the applicant was managing the same store, but before he was employed by the personal respondent.
55The parties agree that assessments were done without notice. The form used for each assessment report submitted in evidence was the same, and called for information concerning the same aspects of a store’s equipment, appearance and service practices, including timing of services.
56Prior to the applicant's employment by the personal respondent, he had received a five-star report. Just over a month after his employment by the personal respondent, the applicant received a three-star report. Just under three months after the termination of the applicant's employment, the store again received a five-star report.
57Apparently, the number of stars on a report goes from an unacceptable one star to a number of stars that the parties did not identify. I was given to understand that a three-star report was reasonably good, and that a five-star report was significantly better. In cross examination, the personal respondent indicated that, if the average assessment for a group of stores dropped below three stars, the owner of that group could not buy any more stores until that average was rectified. The respondents offered no evidence that this rule affected them in their circumstances. Each of the two reports dating from the applicant’s management of the Belle River store and submitted in evidence indicated that the number of possible points was 200. The three-star report collected 164/200 points. The five-star report reflected 182/200 points. No evidence was led as to the range of points associated with the number of stars. During the personal respondent's evidence in chief, he indicated that the difference between a three-star and a four-star report could be as little as six points.
58There was considerable speculation about what the ratings meant, how conditions at a store were assessed, and even how many points were available for each subcategory reported upon. This system was not created by the personal respondent, who was a franchisee. Unfortunately, there was no evidence from anyone at Domino's head office who might have been able to give an authoritative explanation of Domino's assessment system, and answer the questions that arose.
59What did become fairly clear through the testimony of the parties was that the assessment report reflects, at best, a “snapshot”--the individual assessor’s view of conditions at the restaurant in a specific brief period of time on the day chosen for the assessment. There was no evidence that assessments were always done at the same time of day or on the same day of the week. There was no evidence that the scoring of the reports took into account factors that might positively or negatively influence the practices being assessed, such as the number of customers in the store or the number of orders being filled during the period of assessment, the number of staff on duty, or the number of kilometers traveled for deliveries. Finally, only two assessment reports were submitted in evidence, which is a very limited sample. It is obvious that each might have reflected an unusual rather than an average day. I do not consider these reports strongly probative of points relating to competence that were sought to be established by either party.
60Having said the above, I have also kept in mind that the real issue in this case is not whether the applicant was doing well at his employment, but what reasons the respondent had to fire the applicant, whether the respondents can establish that the decision to terminate predated July 15, 2010, and whether factors related to the applicant's disability were included among the reasons for the termination of employment.
61The parties agreed that the personal respondent was displeased with the 3-star report, and that he told the applicant that he would have to pick up his “pace and control”. However, I cannot conclude that the personal respondent thought of the three-star report as conclusive evidence that the applicant should no longer be employed. In the first place, he did not testify that this is what he thought. Secondly, he did not take any action to fire the applicant until well after the receipt of the three-star report. Finally, the personal respondent testified that he was an experienced franchisee, and given that he could not himself explain some of the details of the allocation of points, it appears to me that he was well aware of the weaknesses of the Star report system as a method of assessing the competence of any of his managers.
62The other information upon which the respondents might have based the decision to fire was related to their assertion about the applicant “being in conflict” with an employee (SD), who voluntarily left her employment with the Belle River store prior to July 15, 2010.
63The applicant was asked in cross-examination about SD. He indicated that she was 16 or 17 years old in 2010, that she worked as a “phone/pizza girl”, and that she probably worked more hours than any other employee “maybe 25 hours per week”. This young woman had been employed at the store when he was manager under the first franchisee. The applicant had called her back when the store reopened. The applicant indicated that he had given SD one verbal and one written warning, several weeks apart, concerning the way she spoke to customers and to him. He gave her some direction on how to do it properly, as well as an “action plan”. He explained that she came across as rude, and that she had “dropped the f-bomb” when she was not happy with his direction. The applicant stated that he told SD that he had noted both the verbal and written warnings in the computer system. He believed that the personal respondent had access to this record. He stated that the personal respondent was telephoned by SD during this period, and that the personal respondent had stated that “if she quits, you'll be sorry-- she's a good employee”. The applicant agreed that SD was a good worker, but did not remove record of the verbal and written warnings from the computer.
64The personal respondent confirmed that SD had called him: “it seemed she felt that she was being picked on“. He stated that he had told the applicant that he should not fire this employee because “she is our fastest and best pizza maker-- work with her”.
65The personal respondent's recollection was that SD quit at the end of May or the beginning of June 2010, and that the night she left he telephoned the applicant, and told him that “if things don't turn around, you are next to go”. In his examination in chief, the applicant had no recollection of this. He recalled that, sometime before SD resigned on July 7 of 2010, the personal respondent had said something like “if she quits, you’ll be sorry; she’s a good employee”. The applicant testified that the personal respondent was aware that SD had quit “because she called him” but that the personal respondent did not discuss SD’s resignation with the applicant. He was not cross-examined on this evidence.
66The respondent’s evidence as to when SD had quit was, as noted above, somewhat vague. The applicant had a detailed recollection, and in the circumstances, I accept that SD resigned on July 7. Accepting as I have that the respondent’s claimed decision to terminate at “the beginning of July” could have been taken during the first week of July, SD’s resignation on July 7 could be considered as part of the information on which he might have based a decision at that time.
67I accept the respondent's assertion that he did not consider that the applicant had “turned the store around” by the beginning of July and therefore I accept that he may have had some doubts about the applicant's performance. However, any conclusion on the part of the personal respondent at that time that the store’s failure to “turn around” was due to the applicant’s performance would have been based on relatively little information. The three-star report had occurred, but the respondent did not contest that the applicant had received a five-star report for the same restaurant at a previous date, and in any event, as noted above, I conclude that the personal respondent had no reason to believe that this would not happen again the next time the restaurant was assessed. The respondent had not taken over the management of the restaurant and therefore had not formed the opinions that he said he formed after doing this (assuming that after-acquired evidence is considered). The respondent certainly never documented any performance problems arising prior to the beginning of July.
68I accept the respondents’ evidence that the personal respondent considered SD a good employee, but the respondents submitted no evidence as to why SD may have been so important an employee that her departure gave rise, on its own or combined with the three-star report, to a decision to terminate the applicant’s employment.
69I also keep in mind that the personal respondent’s own testimony about his reasons for firing the applicant did not address what information was available to him prior to the point at which he and his son took over to run the Belle River store. His evidence was general in nature; he did not testify that the three-star report and the resignation of SD were in fact the reasons for his alleged decision at the beginning of July.
70In the light of the evidence reviewed above, I cannot conclude that the personal respondent decided to fire the applicant before July 15, 2010, the date on which the applicant informed him that he had been hospitalized and would have to take some time off for disability-related reasons.
71Was the personal respondent aware of the applicant's disability when he decided to terminate the applicant’s employment on July 29, 2010? I find it more likely than not that the applicant told the personal respondent that the reason for his hospitalization was a cardiac condition. In any event, the personal respondent himself admits that his understanding was that the applicant was hospitalized for reasons relating to diabetes, which, as noted above, is also a disability for the purposes of the Code.
Other Evidence Relevant to the Decision to Fire the Applicant
72Both parties had an interest in demonstrating how well or how poorly the store was managed by the applicant during his employment there, both before and after his employment by the personal respondent. If a respondent in an employment Application establishes that s/he had reason to fire an applicant, a breach of the Code may still be found if one or more of those reasons relate to a ground of discrimination under the Code. However, the establishment of non-discriminatory reasons to terminate employment may in some circumstances reduce a compensatory order under the Code for loss of wages, as the principle of compensation does not involve placing the applicant in a better position than s/he would have been in had a breach of the Code not occurred.
73As noted above, the personal respondent testified that he and his son had stepped in to manage the store after the applicant’s call on July 15, 2010. The respondents’ evidence as to the applicant’s shortcomings as a manager did not focus on the approximately 19 days between the applicant’s phone call and the date the applicant was dismissed; there was no evidence as to which of the personal respondent or his son spent the most time at the Belle River store, and no evidence of conversations between them as to conditions there. The personal respondent gave his evidence in very general terms. Except for identifying the three-star report and the resignation of SD, which occurred before the date the applicant was fired, as reasons for firing, the respondents’ evidence did not identify what information as to the applicant’s performance was available to them before the applicant was fired.
74In any event, the respondent’s evidence concerning the applicant’s alleged performance problems was not sufficiently compelling to lead to a conclusion that performance problems were the only reason for the termination. The personal respondent admitted that he had kept no records of any performance problems he might have observed in the applicant. He indicated that he did not keep such records because he was aware that under the Employment Standards Act he “could fire employees without cause within 90 days of their employment.” His evidence of his reasons for dismissal was limited to his own testimony and the business records discussed previously and below.
75During his testimony relevant to his assertion that the applicant was “unable to control his food and labour costs in relation to the sales due to waste, loss, errors, unauthorized discounts and giving away free pizza”, the personal respondent indicated that running his stores was “a numbers game”, indicating that relatively small margins of profit made a big difference. He kept detailed computerized statistics based on figures entered by staff of his stores into a system set up by Domino’s head office. As an example of the operation of the system, he indicated that he had set up his cell phone to receive an e-mail if a pizza order was cancelled at any of his restaurants. He indicated that the applicant was aware of this close monitoring because he had phoned the applicant on at least one occasion to discuss a problem to which he had been alerted in this way.
76The personal respondent did not closely supervise the applicant other than through the above-noted system to detect cancellation of orders. He indicated that, during the applicant’s employment he visited the store once a week for varying periods of time. There was no indication that these visits were always supervisory; the personal respondent indicated that he might be dropping in to shift food from one store to another.
77In his examination in chief, the personal respondent was asked whether there were any problems with the applicant's performance at the start. He responded that the applicant was “getting his feet wet” and hiring new people, but he did not identify any problems at the early stage of the applicant's employment. In response to another question he did state that, about three weeks after the applicant started, he discussed his concern with the percentage of the applicant's sales that were taken up in the costs of food, labour and mileage (FLM). He stated that he spoke to the applicant about the FLM figures every two or three weeks.
78In giving his testimony in chief, the personal respondent indicated that he was not satisfied with the profitability of the store, but did not indicate that he had identified what had caused this situation. When questioned about the source of an unwelcome rise in the FLM percentages, for example, he phrased his answers as possibilities: it “could have been” staff mistakes; it “could have been” the applicant giving discounts or not charging for some items.
79The figures for the Belle River store relating to the FLM issue were illustrated in an untitled document, Exhibit 5, which appears to be a computer printout. The personal respondent agreed that one of the percentage figures for the relevant time (102%) was probably inaccurate, and I have excluded that figure from consideration.
80The personal respondent indicated that his goal for the store was that FLM should not, on average, rise above 60%. The personal respondent indicated, and the printout shows, that after his discussion with the applicant the percentage for the store improved, (to 63.9%), then went up again to 67.94% and subsequently improved (down to 59.16%, 58.24%, 54.17%) before once again rising, respectively to 69.88%, 64.94%, and 60.14%. Exhibit 5 appears to indicate that all of these figures were improvements in the performance of the store when compared with the previous year.
81One of the factors considered by the personal respondent to be important was the delivery time for pizzas that were delivered to other destinations as opposed to serve in the store. He indicated in his examination in chief that, in the three-star report of the evaluation done during the tenure of the applicant, “he lost points for the delivery area being too big”.
82The applicant was asked whether there was a standard time for delivery. He said that there was that he could not recall what it was; he stated that 15 minutes “would be a great thing”. He initially stated that he had had no conversations with the personal respondent about delivery times. However, in cross-examination he was shown a document from the respondents’ filed documents entitled “service times”. He stated that the personal respondent had told him his delivery times were too long. He stated that he had explained that the drives to delivery destinations in a rural area were longer than those for the personal respondent’s downtown stores. He indicated that the personal respondent was not satisfied with this explanation.
83The applicant stated that he had also discussed “wait time” and “load time” with the personal respondent and that the personal respondent was not happy with those times. He maintained that he had not been told that his employment was in jeopardy over these issues.
84The personal respondent stated that the previous owner of the store had expanded the area for delivery, and that he reduced that area “once I found out”. In later testimony, he indicated that he reduced the distances for delivery after the end of the applicant's employment. In cross examination in respect of the five-star report received by the store after the applicant’s employment had been terminated, the personal respondent indicated that the statistics were better after he had reduced the size of the delivery area.
85Another factor playing into the FLM figures was the cost and use of the food products. The applicant was specifically asked whether he ever gave discounts on food. His evidence on this point was detailed. He stated that this practice was used to deal with customer complaints, (such as late delivery of pizzas or mistakes in the type of pizza ordered), as it helps to keep customers satisfied. He stated that, as manager, he had authority to do this. He stated that he had discussed this with the personal respondent, who had said that if there was a problem with a customer he should take control of the situation and take care of the customer and that he had no problem with using discounts, or offering free bread or soft drinks, for this purpose. The applicant could not recall how often this might have happened but said it was certainly not every shift. In cross-examination, the applicant was asked whether he recorded when he gave a customer free food or free soft drink. He appeared unsure and finally said “I'm going to say yes; I'd need to know for the inventory”.
86When asked about giving food away without charge, the applicant stated that this was not his practice although he may have done this on one occasion for a charity event, having been directed to do so by the personal respondent.
87The accuracy of the figures related to the cost and use of the food products at the Belle River store obviously depended significantly on the parties’ inventory recording practices.
88The applicant was shown a document entitled “weekly food worksheet” (Exhibit 7). He testified that he had never seen this document prior to filing the Application. He stated that he had never been given such a thing by the personal respondent, and had never heard of the individual whose name appeared on the document. He also testified that this was not the format in which he kept his own inventory.
89The applicant stated that during his employment he did inventory daily, and input the data into a computer. He believed the personal respondent had access to the computer. He had staff members do inventory when he was not there and assist him if they were not busy with orders. He denied that the personal respondent had ever told him that he should not be doing inventory. He denied any conversations or criticisms in regard to inventory. His own document was headed “inventory” and he did not print off hard copies.
90The applicant testified that the personal respondent would come in himself or send employees from his other stores and would remove various products. His understanding that these items would be taken to the personal respondent’s other stores. He stated that the personal respondent told him that there would be no difficulty with this as the personal respondent would make sure the removal of stock was entered into the computer system. However, the applicant was not sure that this happened. The applicant stated that inventory was a problem “all the time” because items would be removed when he was not there as well as when he was there. He was asked in cross examination whether he had kept a list of what was taken. He said that he did not and reiterated that often inventory items were removed while he was not there.
91The personal respondent admitted that he and some of his employees did on occasion remove food from the applicant's store because another store might need it or because food close to its stale date but could be used before the stale date by another store.
92The evidence given by both parties indicates that there was some ambiguity as to how inventory should be recorded and whose responsibility it was on any given occasion to record the data related to the removal of inventory. The applicant stated that he kept his own inventory records in a different form from that used by the respondent. The personal respondent gave no evidence that inventory records were expected to be centralized in one system. The personal respondent stated that, when he removed inventory from the BR store, he would “go into the system” himself, or that he would tell the staff to record the transfer. No staff were called to testify into whether they did in fact record each removal when the applicant was not there.
93The applicant’s evidence was that he trained staff to assist him with his daily inventory. The applicant testified that he did bank deposits at the end of each night. If he did not stay until the restaurant closed at midnight, he would authorize another staff person to drop off a bank deposit when the restaurant closed. He denied having any conversations with the personal respondent in regard to bank deposits. He denied any criticism about banking practices.
94The respondent stated that after he stepped in to manage the store after the applicant was hospitalized, he found that money had been left in an envelope, rather than a deposit slip having been made out and the money being deposited. He was not specific about the date of this discovery, but I infer in the circumstances that this would have been very shortly after the applicant was hospitalized. The personal respondent stated that normally the closing manager makes the night time deposit, and indicated that at the Belle River store it appeared the staff were leaving this for the applicant to do the next day. The applicant was not cross-examined about this point.
95The respondent stated that staff made mistakes counting inventory and in putting pizzas together. He did not elaborate on when he had discovered this, or on the nature of the mistakes. He concluded from this observation that they had not been properly trained. The personal respondent also stated that the applicant was not doing “proper cross-training”. His testimony about the facts upon which he based this conclusion was somewhat unclear; apparently at least one staff person told him “they did not know how to answer the phone”.
96In his examination in chief, the personal respondent indicated that the profitability figures for the store had improved after the applicant had left. However, in cross-examination he admitted that when he bought the store he had not considered it profitable, that it was not profitable during the applicant's tenure, and that it was also not profitable after the applicant had left, even during the six-month tenure of a manager he hired to replace the applicant. The personal respondent admitted that when he sold the store in October of 2011 it had still been unprofitable. The figures in Exhibit 5 show that in the 21 weeks after the applicant's employment was terminated, the FLM percentage reached the desired 60% or less on only four occasions. By contrast, in the 11 weeks that correspond with the applicant's employment, the desired percentage was reached on three occasions.
97In cross-examination, the applicant admitted that, although the manager he hired to replace the applicant did not run the store profitably, he did not terminate that individual's employment. The replacement manager resigned after six months “to go to another job”.
98I conclude from the above evidence that the personal respondent had some concerns about the three-star report generally, as well as about “wait time”, “load time” and delivery time, and has established that these concerns dated from before the decision to fire the applicant. There is very general evidence to the effect that the personal respondent might have believed that, on one occasion before the decision to fire, a bank deposit was not made as early as it should have been. Having said that, it appears that the respondents’ inventory-related practices were not subject to clear rules against which the applicant’s performance could be measured, and it is not otherwise clear that the respondent had any concerns about this prior to the decision to fire. The personal respondent may have been concerned at the general unprofitability of the store prior to his decision to fire the applicant after three months of employment, but it appears that similar concerns did not prompt the personal respondent to fire the applicant’s successor during the successor’s the six-month tenure. It does not appear to me that general unprofitability over a relatively shorter time period was among the reasons to fire the applicant.
99The personal respondent denied that the cost of including the applicant on group insurance benefits was part of the reason for his decision to terminate the applicant's employment. He indicated that his cost for the applicant group benefits insurance would have been in the area of $90-$100 a month. He contrasted this with the situation in which an employee has a spouse and dependents; in these cases he said the cost was more like $300-$400 per month. Having said that, he did not deny that there was a cost to placing the applicant in the benefit plan.
100Considering the evidence as to the respondent’s performance as it relates to the issue of whether disability was one of the factors that influenced the decision, made on July 29, 2010, to terminate, I conclude that there is certainly evidence that the store was not profitable during the applicant’s tenure, that the personal respondent was anxious that this situation improve, and that there was some discussion between personal respondent and the applicant about improving his performance relating to delivery time, “wait time” and “load time”. I also accept that the personal respondent was unhappy that the applicant disciplined SD, and blamed the applicant when SD decided to quit.
101Having said the above, the applicant has established that the personal respondent was informed, as of July 15, 2010, that the applicant would have to be away from work for an indeterminate period related to a disability, and the applicant qualified for inclusion in the benefits program at a cost of approximately $100 a month. As of the date the personal respondent terminated the applicant’s employment (July 29, 2010), he had the above-noted concerns about the applicant’s performance and the store's profitability. However, on the basis of the evidence I conclude that the personal respondent also took the applicant’s need for a leave of absence related to disability, and his inclusion in the benefits program, into account in making his decision to fire the applicant. On a balance of probabilities, the applicant has established that the personal respondent was aware, at the time he decided to fire the applicant, that the applicant would have to take a leave because of disability, and the respondents have not established their claim that poor performance was the only reason for firing the applicant.
REMEDY
102Subsection 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:
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.
103In addition to addressing a successful applicant’s request for order(s), the Tribunal may make an order that has not been requested by the applicant: Payne v. Otsuka Pharmaceutical Co. et al (2002), 2002 CanLII 46516 (ON HRT), 44 C.H.R.R. D/203, Lepofsky v. Toronto Transit Commission, 2007 HRTO 41, Rocha v. Pardons and Waivers of Canada, 2012 HRTO 2234.
104The amended Application included a request for monetary compensation for loss of wages and benefits, legal expenses and “emotional damages” in the amount of $100,000, but this was considerably modified at the hearing.
Compensation for wage and benefits loss
105Pursuant to subsection 45.2 (1), above, an applicant who proves a breach of section 5 of the Code is entitled to compensation for wage loss arising out of the discriminatory act. Subsection 45.2 (1)1 of the Code directs the Tribunal to consider what loss arose “out of the infringement” of the Code when considering the proper amount of monetary compensation. In Airport Taxicab (Malton) Assn. v. Piazza, (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.), the Ontario Court of Appeal at para. 45017, stated that the “purpose of the compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred”. Decisions of this Tribunal and of its predecessor Boards of Inquiry have commonly considered loss arising from the date of the infringement of the Code to the date of the hearing, (although there has been some discussion of awards and one actual award for wage loss going beyond the date of the hearing; see discussion in McLean v. DY 4 Systems 2010 HRTO 1107, paras 90 and 91, McKee v. Hayes-Dana Inc. (1992), 1992 CanLII 14231 (ON HRT), 17 C.H.R.R. D/79 (Ont. Bd.Inq.), and Pilon v. Cornwall (City) (No. 4) (2012), CHRR Doc. 12-0677, 2012 HRTO 177 ). The amount is reduced to account for any employment income received during the period, and may be reduced for other reasons, such as evidence that the applicant’s employment would have been reduced or eliminated for reasons unrelated to a breach of the Code.
106The applicant was on Employment Insurance (EI) sickness benefits for six weeks following the termination of his employment and then went to regular EI payments at the end of September. He sought employment after that.
107He found another job at a restaurant in April 2011, has since found yet another job closer to where he lives, and more recently has transferred to a different job with the same employer, where he has worked as a restaurant manager since September 2011. In his most recent jobs, the applicant has been paid more than the salary he received with the respondent.
108The applicant requested a compensation order for wage loss that would amount to 37 weeks of lost salary for a total of $19,240 along with loss of benefits for nine-month (which he values at the employer's cost, $100 per month), and pre-and post-judgment interest. The onus of proof regarding any failure to mitigate rests on the respondents. See Gohm v. Domtar Inc. (No. 4) (1990), 1990 CanLII 12500 (ON HRT), 12 C.H.R.R. D/161 (Ont. Bd. Inq.) at para. 131; Ayangma v. Eastern School Board and Ano, 2008 PESCAD 10 at para. 74ff. The respondents raised the issue of mitigation, but cross-examination did not raise anything related to gaining employment that the applicant neglected to do. In the circumstances, I find that there is no basis to reduce the period of time for which compensation will be ordered.
109The applicant stated that at the time of termination of his employment he was on some six different medications, some of which were very expensive. He did not get employment benefits that paid for his medication. He was only able to manage financially because he has “a wonderful son” who moved in with him and help him pay his expenses. In these circumstances, the applicant is entitled to compensation for medication expenses that would have been covered by the employment benefits he would have had if he had not been dismissed. However, it is difficult to quantify any loss, as the applicant did not produce prescription receipts as part of his evidence, and did not even provide his best recollection of the expenditures resulting from lack of inclusion in the benefits plan. As noted above, the amount he claimed for loss of benefits was quantified as the employer's cost, $100 per month.
110The purpose of the compensatory order is to place the applicant in the position he would have been in had the breach of the Code not taken place. The applicant may in fact have spent over $100 a month that he would not have had to spend if he had been covered under the benefits program. However, I cannot equate the employer’s cost with the actual loss, and there is no evidence as to actual loss. Counsel did not specifically argue on the basis of unjust enrichment, and it is not clear to me that the application of tort principles related to unjust enrichment is an appropriate exercise in respect of a compensatory order. I therefore decline to make an order to compensate for loss of benefits.
Compensation for injury to dignity, feelings and self-respect
111Subsection 45.2 (1) 1 authorizes monetary “compensation for injury to dignity, feelings and self-respect”.
112In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the principles on which compensation for injury to dignity, feelings and self-respect are awarded, and noted the importance of fairness to both applicants and respondents. The Tribunal assesses intangible loss and suffering with a degree of objectivity in assessing the amount of compensation; Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee” for discriminatory behaviour. See, ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.).
113The concepts of “dignity” and “self-respect”, while certainly including factors that are subjective in nature, import considerations that are broader than the individual’s reaction to how he or she was treated. Dignity and self-respect can be diminished by how one is perceived and treated by others, as well as how one feels about that treatment. It is true, for example, that an individual who has a disability that affects communication may be unable to convey outrage at an affront to his or her dignity, and an individual who is consistently oppressed may grow to regard such treatment as “normal”. That cannot prevent this Tribunal from recognising an affront to dignity, nor absolve it from attempting to quantify a compensatory award according to its obligations under section 45.2(1) and the policies expressed in the Preamble to the Code.
114A compensatory order is not a punitive order, but consideration of the actions of the respondent cannot be avoided in determining whether dignity was violated and how. As Professor Denise Réaume notes in her wide-ranging discussion of the concept of human dignity, “violating dignity involves conveying the message that some are of lesser worth than others” (Denise G. Réaume, “Discrimination and Dignity” in Faraday, Denike and Stephenson eds., Making Equality Rights Real (Toronto, Irwin Law Inc., 2006).
115Obviously, the applicant was dismissed at a time of considerable stress and vulnerability for him, as he had just been released from hospital, was under continuing assessment, and was receiving surgical and other treatment for a cardiac condition. The applicant’s evidence was that following his dismissal, his blood pressure was very high and he was an “emotional wreck”. He indicated that he is a widower and therefore has no spouse to help. His son eventually moved in with him to help him pay his bills. The applicant was obviously grateful, but was also distressed at what he saw as a reversal of roles: his evidence was “your kids are not supposed to help you; you’re supposed to help your kids when they need it”. The position of temporary dependence on his son clearly had implications for his personal dignity.
116The applicant requested $30,000 under this part of the Tribunal’s award power, and I agree that this is appropriate. In the circumstances of this case, I award $30,000 to the applicant for violation of his inherent right to be free from discrimination, and for injury to his dignity.
Interest
117The applicant sought prejudgment and post-judgment interest. With respect to the applicant’s damages for loss of wages, I award pre-judgment interest on the full amount from June 11, 2010, the mid-point between the date on which he commenced employment and the date on which he was dismissed.
118I award prejudgment interest on the award of compensation for injury to his dignity, feelings and self-respect in accordance with the Courts of Justice Act, R.S.O. 1990 c. C. 43, from August 4, 2010, the date on which the Application was delivered to the respondents.
119In addition, I award post-judgment interest in accordance with the Courts of Justice Act, supra, 30 days from the date of this Decision.
Public Interest Order
120Subsection 45.2 (2) of the Code confirms that 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 may be made “even if no order under that paragraph was requested”. In the circumstances of this case, I think that a public interest order that promotes future compliance is appropriate.
ORDER
121The Tribunal makes the following orders:
a) Within 30 days of this Decision, the respondents shall pay $19,240 as compensation for lost wages;
b) Within 30 days of this Decision, the respondents shall pay $30,000 to the applicant for violation of his inherent right to be free from discrimination, and for injury to his dignity. This amount is an award of monetary compensation in the nature of general damages for injury to dignity, feelings and self-respect
c) The respondents shall pay the applicant prejudgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (a), above, from June 11, 2010;
d) The respondents shall pay the applicant prejudgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (b), above, from August 4, 2010;
e) In the event that the respondents fail to make the payments described in paragraphs (a) through (d) above within 30 days of the date of this Decision, the respondent shall pay post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Decision;
f) Within 30 days of the date of this Decision, the respondent shall post Human Rights Code cards, available from the Ontario Human Rights Commission, at the entranceway to each of the corporate respondent’s restaurants. These Human Rights Code cards shall be posted in visually prominent places; and
g) Within 60 days of the date of this Decision, the respondents shall complete the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) or equivalent training on basic principles of human rights and review the Human Rights Commission’s Policy and guidelines on disability and the duty to accommodate, (available at http://www.ohrc.on.ca/en/policy-and-guidelines-disability-and-duty-accommodate) and shall confirm to the applicant, in writing, that they have done so.
Dated at Toronto, this 19th day of July, 2013.
“signed by”
Judith Keene
Vice-Chair