HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lilly Widdis
Applicant
-and-
Desjardins Group/Desjardins General Insurance
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Widdis v. Desjardins Group/Desjardins General Insurance
APPEARANCES
Lilly Widdis, Applicant
Rani Khan, Counsel
Desjardins Group/Desjardins General Insurance, Respondent
Eric Schjerning, Counsel
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of creed. The respondent filed a Response denying it had discriminated against the applicant.
Background
2A hearing was held in this matter on November 5, 2012 and January 31, 2013.
3The respondent advertised for 17 New Business Clerk (“NBC”) positions in its Client Care Centre.
4The applicant, who is a 7th Day Adventist, alleges that she was denied employment with the respondent because she could not work on Saturdays which is her Sabbath.
5The respondent in its Response states:
In the opinion of the Desjardins interviewer (Ms. Sonia Leonetti), Ms. Widdis was not one of the top 17 candidates. Ms. Widdis’ inability to work Saturdays was not the reason she was not offered the position. The respondent also disputes Ms. Widdis’ Claim that the telephone interview was terminated as soon as Ms. Widdis stated her inability to work Saturdays. Rather Ms. Sonia Leonetti completed the entire pre-screen phone interview.
6The Response indicates that 15 of the 17 individuals hired possessed direct call centre experience and the other two employees were employee referrals.
7The parties were required to deliver and file their hearing materials by September 21, 2012. On September 25, 2012, the applicant brought a Request for an Order during Proceedings (“RFOP”) seeking the production of the documents related to the 17 successful candidates. The respondent did not make any submissions in response to the RFOP. On October 5, 2012, the Tribunal issued Interim Decision, 2012 HRTO 1906, allowing the RFOP and ordered the respondent to provide the information by October 15, 2012. This information was delivered and filed on October 17, 2012.
8On October 24, 2012, the applicant brought a second RFOP seeking that the respondent provide detailed witness statements in compliance with the Rules. Ms. Leonetti’s witness statement simply stated as follows:
a. Ms. Leonetti was the interviewer who performed the pre-screen interviews of the candidates selected for the telephone interviews.
b. Ms. Leonetti will state that she completed her entire telephone pre-screen with Ms. Widdis and did not deem Ms. Widdis one of the top candidates.
9The respondent did not file submissions in response to the RFOP. On October 29, 2012, the Tribunal issued Interim Decision 2012 HRTO 2059, which ordered the respondent to provide detailed witness statements that complied with the Rules by no later than October 31, 2012.
10The respondent complied with this order and submitted expanded witness statements on October 30 and 31, 2012.
11At the hearing, the respondent also took the position that the applicant never advised Ms. Leonetti that the reason that she could not work on Saturdays was because of her creed. This is not an issue identified in either its Response or Ms. Leonetti’s expanded witness statement.
12During opening submissions counsel explained that there were 321 applicants for the NBC position. Ms. Leonetti reviewed the resumes and selected 65 candidates for a telephone pre-screen interview. Ms. Leonetti then referred 30 applicants for an in-person interview. Ms. Widdis’ application was declined and she was not granted an in-person interview.
13During opening statements I asked counsel if the statement in the Response that “In the opinion of the Desjardins interviewer (Ms. Sonia Leonetti), Ms. Widdis was not one of the top 17 candidates” was accurate since in fact Ms. Widdis was not one of the top 30 candidates selected for an in-person interview. The respondent did clarify that Ms. Widdis was not one of the top 30 candidates. I asked counsel whether the respondent had provided any documents with respect to the 13 other candidates, since these documents appeared to be arguably relevant to its defence that Ms. Widdis was not one of the top 30 candidates. Counsel stated that these documents were not disclosed to the applicant.
The Facts
14The function of the NBC is to receive calls from clients seeking to obtain auto insurance quotes. The NBC position is a short-term contract position which only lasted six months. There is no dispute that the position no longer exists.
15The job advertisement for the position specified the following qualifications:
a. High School Diploma, Post-secondary education is an asset;
b. Computer Literate; and
c. Strong English communication skills.
16Candidates applying for the NBC position also needed to be customer service orientated, able to learn, have interpersonal skills, be flexible and adaptable, be a team player, have the ability to multi-task and be thorough and efficient. The additional information provided in the job advertisement indicates that employees work on Saturdays from 8:00 to 4:00 on a rotational basis.
17On July 8, 2011, the applicant was contacted by Ms. Leonetti for a phone pre-screen interview. The parties disagree about what happened during the course of this pre-screen interview. The only two witnesses to this telephone call are the applicant and Ms. Leonetti.
18On July 30, 2011, the applicant was advised by email that she was not selected for the job.
Ms. Widdis’ Evidence
19The applicant testified that she was contacted by Ms. Leonetti on July 8, 2011, and that she returned her call at approximately 2 p.m. The applicant recalls that she was asked if she was currently employed to which she answered no and that she could start right away. The applicant said that she could work the long hours required by the respondent.
20Ms. Leonetti then asked the applicant if she could work rotating Saturdays. The applicant then paused a little and replied “I am a 7th day Adventist”. Ms. Leonetti then inquired as to what she meant. The applicant then explained that she could not work on Saturdays and that she had to attend Church. Ms. Leonetti then said that she was not familiar with the religion and asked why the applicant could not go to Church after work. The applicant states that she asked Ms. Leonetti if the respondent could accommodate her inability to work on Saturdays. Ms. Leonetti said no and then stopped the conversation.
21During cross-examination counsel put to the applicant a number of questions that Ms. Leonetti alleges she asked the applicant during the pre-screen interview. The applicant did not recall being asked quite a few of these questions including what were her salary expectations, and whether or not she had a criminal record. On redirect the applicant maintained that though she did not recall being asked these questions, they could have been asked of her. The applicant was quite certain that no questions were asked of her after her request for religious accommodation.
Ms. Leonetti’s Evidence
22Ms. Leonetti has been employed with the respondent for 10 years and she was the Recruiter assigned to the NBC job competition.
23Ms. Leonetti stated that she always follows the same pattern in the pre-screen interview. She introduces herself and follows a set pre-screen interview sheet in the order that the questions are written. Ms. Leonetti has no independent recollection of conducting the applicant’s pre-screen interview.
24She testified that the standard pre-screen interview lasts from 5-7 minutes. She stated that she recalls only having stopped one pre-screen interview early because the applicant’s English skills were so poor that it was impossible for her to comprehend what was being said. She believes that she owes it to the candidates to finish each pre-screen interview.
25Though Ms. Leonetti does not recall the interview she testified that she would not have asked the applicant about her religion as alleged above because it goes against her training.
26The Pre-Screen interview sheet filled out by Ms. Leonetti asks the following question:
“Would you be able available anytime between the following hours: 7.5 hour shift for a 37.5 hour/work week accommodating Client Care Centre hours: Indicate your availability
Monday-Friday 8:00 am to 8pm
Saturday 7:00 am-4:00 pm
Overtime as required
27There are two options which can be filled out on the form either, yes or no. The applicant’s pre-screen sheet indicates only “no”. It does not identify that the applicant specifically said that she cannot work on Saturdays. Ms. Leonetti has not written any clarification or explanation next to the question. Ms. Leonetti explained that if the applicant had advised her that she could not work on Saturdays because she was a 7th Day Adventist, she would have written a notation next to this question explaining “due to religious reasons”.
28Ms. Leonetti explained that the respondent could have accommodated the applicant’s inability to work Saturdays because the applicant could have switched shifts or used her floater days.
29Of the 65 pre-screen interviews conducted by Ms. Leonetti, 21 applicants withdrew from the competition, and 14 applicants, including the applicant, were declined the in-person interview. The remaining 30 applicants were granted an interview and 17 applicants were offered the NBC position.
30Ms. Leonetti compared the qualifications of the applicant to those of the 17 applicants who were eventually offered employment with the assistance of a chart that she prepared for the purposes of assisting her with her testimony. Ms. Leonetti stated that without the assistance of this chart she could not compare the applicant’s qualifications to those of the successful candidates. The respondent called no evidence which compared the applicant’s qualifications with respect to the other 13 applicants who were granted interviews.
31During cross-examination Ms. Leonetti explained that she conducted almost 1000 pre-screen interviews and that it is difficult for her to remember these, so she must rely on what she writes down. With respect to Ms. Widdis’ pre-screen interview she conceded that the applicant met the qualifications identified in the job advertisement and that her fluency in Spanish and Portuguese were assets.
32With respect to the Pre-Screen Interview sheet she explained that she does not ask candidates why they are not able to work the designated hours; however, candidates usually volunteer an explanation for their inability to work. She does not recall Ms. Widdis volunteering an explanation.
33Ms. Leonetti reviewed the Interview Guide for all candidates who are granted interviews for the NBC position. The guide states:
There are some realities of the NBC role that I need to describe to you:
Shift bids
-Working hours are from 8 am to 8 pm, shift bids are based on seniority
Saturdays
-Confirm availability to work on Saturdays
Confirm that the position is a contract position
34Ms. Leonetti confirmed that all of the individuals who were offered the NBC position could work on Saturdays. I asked Ms. Leonetti whether the applicant’s inability to work on Saturdays was a factor in her decision not to refer the applicant to an in-person interview. Ms. Leonetti responded that this was not a factor.
35The respondent also called Zahir Manji, the Manager of the Call Centre which employs approximately 320 employees. Mr. Manji explained that there are 3 employees that have identified to him that they are 7th Day Adventists. Mr. Manji testified that these employees are able to trade shifts and use floater days to avoid working Saturdays.
36Mr. Manji had no knowledge of the applicant or her skill set and was not involved in the decision not to offer the applicant employment or an in-person interview. Moreover I ultimately found the evidence of Mr. Manji to be of little or no assistance to the respondent’s case for several reasons. It was unclear if any of the three employees identified by Mr. Manji self-identified before being hired so there is no evidence of whether this may have had an impact on their recruitment.
The applicant’s position
37The applicant submits that the respondent violated her Code rights on the following four occasions:
a. When Ms. Leonetti asked the applicant if she could work on Saturdays;
b. When the respondent failed to accommodate the applicant’s request not to work Saturdays;
c. When the respondent failed to offer her one of the 30 in-person interviews; and
d. When the respondent failed to offer her one of the 17 NBC positions.
The Law
38The relevant provisions of the Code are:
- 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.
11.(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
- (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination. (2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination. Questions at interview
(3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.
Breach of subsection 24(2)
39The applicant argued that when Ms. Leonetti asked the applicant whether she could work on Saturdays that this was a violation of the Code since Ms. Leonetti was required to identify that she could not do so because of her Creed. The applicant submits that this question was contrary to subsection 24(2) of the Code which states an “oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination”.
40The applicant relied on the Tribunal’s decision in Thompson v. Selective Personnel, 2009 HRTO 1224 (“Thompson”). In Thompson the Tribunal found that the application form contained the question “Have you ever been under psychiatric care” and that the applicant was asked the same question during an interview. The Tribunal states at paragraph 23:
I find that the mere asking of the question on the application form about whether someone has been under psychiatric care is prima facie an act of discrimination under section 5 of the Code. I find that the question serves to classify applicants by disability or perceived disability (on the basis of whether they answer yes or no), contrary to sections 23(2) and 23(4) of the Code. The respondent in this case has not provided a non-discriminatory explanation for the question’s inclusion.
41I have considered the applicant’s submissions and I cannot accept that making an oral inquiry about the availability to work of a prospective employee is a violation of section 23(2) of the Code. Thompson is clearly distinguishable from the present case since that respondent was making a direct inquiry with respect to a prospective employee’s mental health.
42Questions with respect to an applicant’s availability to work are legitimate questions which do not seek to identify applicants either, directly or indirectly by a prohibited ground of discrimination. In this case, there is no evidence to support or infer that the respondent was asking whether the applicant could work on Saturdays in order to classify the applicant, either directly or indirectly, by her creed.
Constructive Discrimination and s. 11 of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)
43The applicant testified that it has been her sincerely held religious belief since childhood that she cannot work on Saturdays and that she must attend Church. The respondent did not challenge the applicant’s assertion that she cannot work on Saturdays because of her creed.
44There was no dispute that the respondent’s call centre operates on Saturdays and that some employees must work on that day. As such I find that the ability to work on Saturday on a rotational basis is a requirement, qualification or factor which exists that is not discrimination on a prohibited ground but that this results in the exclusion of the applicant on the basis of her creed.
45The respondent has not taken the position that it cannot accommodate the applicant’s inability to work on Saturdays to the point of undue hardship. To the contrary, the respondent asserts that it could have accommodated the applicant’s restrictions. Therefore, there is no need to consider the principles of constructive discrimination in this case.
Breach of Section 5
46The central issue in this Application which must be determined by the Tribunal is whether the applicant’s inability to work on Saturdays because of her creed, was a factor in the respondent’s decision to refuse her employment application at the telephone pre-screening stage of its recruitment process.
47The applicant referred to Abouchar v. Metropolitan Toronto School Board, [1998] OHRBID No. 6, in which the Board of Inquiry states at paras. 10:
However, the tests in Shakes and Israeli are not a complete statement of the applicable law. Depending on the factual circumstances, proof that the complainant was an equivalent or better candidate will not always be essential to the legal burden of proof in a case of employment discrimination. A finding of discrimination will be made out if the Commission can prove on the balance of probabilities that the complainant was treated unequally in the competitions, and that one reason for the unequal treatment was his membership in a group identified by prohibited ground under the Human Rights Code [R.S.O. 1990, c. H.19]. It will be a question of fact in each case as to whether a prohibited ground of discrimination was a factor in the unequal treatment, and further, whether the discriminatory factor contributed to the decision not to hire the complainant. Even a completely unqualified applicant can be discriminated against in a hiring process on the basis of a prohibited ground, but in those circumstances, the discrimination would not likely be a proximate cause for the applicant's lack of success in the competition. Clearly the quantum of damages will be affected by a determination that discrimination affected the opportunity of a job applicant to compete equally, but not the actual selection decision.
48There are key evidentiary disputes between the parties with respect to the pre-screen telephone interview which requires that I assess the overall credibility of the witnesses. Both parties referred me to the seminal decision in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), where the British Columbia Court of Appeal states at page 356-357:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
49I also considered the factors identified by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.
50I also have been assisted by the observations on credibility assessment made in R. v. Taylor, 2010 ONCJ 396, as follows (at paragraphs 58 to 60):
“Credibility” is omnibus shorthand for a broad range of factors bearing on an assessment of the testimonial trustworthiness of witnesses. It has two generally distinct aspects or dimensions: honesty (sometimes, if confusingly, itself called “credibility”) and reliability. The first, honesty, speaks to a witness’ sincerity, candour and truthfulness in the witness box. The second, reliability, refers to a complex admixture of cognitive, psychological, developmental, cultural, temporal and environmental factors that impact on the accuracy of a witness’ perception, memory and, ultimately, testimonial recitation. The evidence of even an honest witness may still be of dubious reliability.
All of this has been said many times before, including by Doherty J.A. for the Court of Appeal in R. v. Morrissey 1995 CanLII 3498 (ON CA), 1995 CanLII 3498 (ON CA), 1995 CanLII 3498 (ON C.A.), (1995), 97 C.C.C. (3d) 193, at 205:
Depending on the circumstances, some portions of a witness’ testimony may be more credible or worthy of belief than other portions. Accordingly, I can, with good reason, accept all, some or none of any witness’ evidence: see R. v. R.E.M., 2008 SCC 51, 2008 SCC 51, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65.
Was the applicant’s creed a factor?
51The applicant recalls her conversation with Ms. Leonetti, and her evidence was clear that she told Ms. Leonetti that she could not work on Saturdays because she was a Seventh Day Adventist. I prefer the evidence of the applicant with respect to her version of what occurred during the pre-screen interview. I find that on the balance of probabilities that the applicant advised Ms. Leonetti that she could not work on Saturdays because of her creed and that she requested accommodation.
52Ms. Leonetti stated that she does not recall her conversation with the applicant.While this may well have been understandable, this necessarily affects my assessment of the reliability and therefore credibility of Ms. Leonetti’s evidence about the content of her discussion with the applicant. Even if both the applicant and Ms. Leonetti were honest in their beliefs about the content of the pre-screening interview, Ms. Leonetti had no independent recollection of it. She testified about what she believes, based on her usual practice, would have happened during the telephone interview, not about what she actually recalls happening. For this reason, and for the other reasons set out below, I generally prefer the testimony of the applicant where it diverges from the evidence of Ms. Leonetti with respect to the specific content of the telephone interview.
53Ms. Leonetti states that had the applicant provided her with an explanation for her inability to work on Saturdays she would have made a note to that effect. I have reviewed the Pre-Screen Interview sheet and I note that Ms. Leonetti did not even indicate that the applicant could not work Saturdays. Ms. Leonetti has simply checked off the “no” box. There is no notation which could identify that the applicant cannot work on Saturdays. This means that if the respondent is correct, when the applicant was asked if she was available to work the requested hours that she simply would have answered no without providing any further clarification that she could not work Saturdays. I find that it is more likely than not that the applicant advised Ms. Leonetti that she could not work on Saturdays for religious reasons.
54In assessing the credibility of Ms. Leonetti I have also considered the following. When I asked Ms. Leonetti whether the applicant’s inability to work on Saturdays was a factor in her decision not to refer the applicant to an in-person interview she said no. However, based on the emphasis that was placed in the job advertisement and during the interview process that it is improbable that a candidate’s inability to work on Saturday would not be a factor in deciding not to refer the applicant.
55The respondent put a lot of emphasis on the fact that it appears based on the pre-screen interview sheet that Ms. Leonetti did not end the interview after the applicant indicated that she could not work on Saturdays. This was presumably intended to undermine the applicant’s credibility based on Ms. Leonetti’s testimony that her usual practice was to always ask questions in sequence, that the entire interview sheet was filled out and the question about working on Saturdays was not the last question on the sheet. The applicant’s counsel suggested that perhaps this was filled out afterwards by Ms. Leonetti in an attempt to conceal the incomplete interview or that the questions were not asked in sequence.
56Notwithstanding her testimony with respect to her usual practice, it may be that Ms. Leonetti did ask questions out of turn. As noted above, she did not have any specific recollection of this interview. This was a short-term contract position that required candidates to start on August 8, 2011, and it would have been reasonable for Ms. Leonetti to ask this question first, instead of last as identified on the pre-screen interview sheet. It is also possible that despite the applicant’s recollection that the interview ended after the exchange relating to working on Saturdays, Ms. Leonetti did actually ask the rest of the questions. It is reasonable to accept that the exchange relating to availability to work on Saturdays was the most significant aspect of the interview from the applicant’s perspective and is what she particularly remembers. The other questions would have been relatively innocuous and peripheral to the exchange about working on Saturdays and in my view there is reason to accept that the applicant’s recollection about these was less reliable, even if honestly held. On balance, I do not find the fact of the entire interview sheet having been completed undermines the applicant’s credibility on the central issue of the disputed exchange about working on Saturdays – and I continue to prefer the applicant’s version of this.
57I have concerns about the accuracy and the sufficiency of the respondent’s explanation as to why the applicant was not referred to an in-person interview. The Response explains that Ms. Widdis was not one of the top 17 candidates. It became clear at the hearing that this was not accurate since 30 candidates had been referred to an in-person interview. The respondent led no evidence through Ms. Leonetti or any other witness to explain why the applicant was not selected to move forward in the job application process. Clearly, she met the minimum requirements of the NBC position and she possessed the ability to speak Portuguese and Spanish. The only negative information during the pre-screen was her inability to work on Saturdays.
58During closing submissions I asked counsel for the respondent whether I should draw an adverse inference from the respondent’s failure to produce the employment applications and interviews of the 13 other candidates who were granted in-person interviews (i.e. who passed the telephone pre-screening stage but were ultimately unsuccessful). Counsel stated that the applicant should have requested these documents in the RFOPs that were filed. Further, that no inference should be drawn because it was counsel’s fault and not the respondent’s that these documents were not produced.
59I have considered the circumstances of this case and find that it is appropriate to draw an adverse inference for the reasons that follow. The respondent was required to file and confirm by way of a very clear written declaration that the Response was complete and accurate. The defence in the Response was neither complete nor accurate. At no time prior to the hearing did the respondent seek to amend or clarify its Response that the applicant was not one of the 30 most qualified applicants.
60The respondent’s defence is based largely on a comparison of the applicant’s skill set as opposed to those of the other 30 candidates who were granted interviews, but they only introduced evidence relating to the 17 candidates who were ultimately hired – not the 30 who were granted in-person interviews. I find that it is appropriate for me to draw an adverse inference because the respondent failed to provide documents that were arguably relevant to its defence. Regardless, I note that there is a complete absence of evidence with respect to how the applicant compared to those 13 other applicants. Moreover, what I have found occurred during the conversation suggests an inference of discrimination.
61The issue is whether the applicant’s creed and consequent inability to work on Saturdays was a factor in the decision that she not advance past the telephone screening phase of the recruitment process. Although the respondents attempted to provide at least some evidence with respect to why the applicant would not have ultimately been chosen compared to the 17 successful applicants, they did not provide any evidence on the issue of what factors generally would have led to screening out at the telephone screening stage. For example, they did not provide any evidence as to why the other 13 candidates aside from the applicant were unsuccessful at the pre-screening stage. I am left with the inescapable conclusion that it was the factors on the face of the pre-screening sheet that were used to determine if candidates would progress to the in-person interview stage.
62Based on the totality of the evidence that was presented at the hearing, I find that the applicant has established on a balance of probabilities that it was the applicant’s inability to work on Saturdays that led to her being screened out from an in-person interview and, accordingly, that her creed was a factor in the respondent’s decision to refuse to consider her application for employment.
63The parties called evidence with respect to whether the applicant would have been awarded the NBC position, through the comparison of the resumes of the successful candidates. However, it is impossible for me to fairly assess whether the applicant would have successfully passed the in-person interview. The NBC position clearly required individuals to possess excellent communication skills which I cannot assess. In these circumstances, I cannot find that the applicant would have been awarded an NBC position.
Remedies
64The applicant does not seek any damages for lost wages. Though the applicant did originally seek public interest remedies, this issue was resolved between the parties at the hearing. The applicant seeks $15,000 dollars for damages for injury to dignity, feelings and self-respect
65The Code provides the Tribunal with a broad remedial authority once it has determined that a breach of the Code has been established. Section 45.2 of the Code states:
On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
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.
66In addressing relevant factors in determining damages for injury to dignity, feelings and self-respect, in particular cases, the Tribunal provided the following comments in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paras. 52-54:
(…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53, 2005 HRTO 53 at paras. 34-38.
67I find that it is appropriate to award the applicant some general damages since I accept that the infringement of her right to be free from discrimination has had an impact on the applicant. The applicant testified that she was hurt and upset after she found out that she would not be considered for employment. She stated that she questioned her ability to secure employment because of her inability to work Saturdays.
68The applicant also asserted that she remained unemployed for a significant period of time, however, no evidence was provided to this Tribunal with respect to her attempts to find employment and mitigate her damages. The applicant eventually found employment in January 2012. I have also considered that the resulting loss to the applicant was being declined the in-person interview which was for a temporary contract position.
69The applicant submitted a medical note which states that she has “Crohn’s disease worsened by stress” and that she has had many visits to the emergency department. The applicant’s evidence was that after she was advised that she did not obtain employment with the respondent that she had to attend the emergency room on repeated occasions. I found her evidence on this point to be vague and particularized. During cross-examination, the applicant conceded that she had gone to the emergency department on numerous occasions prior to August 2011. I find that the medical note provided by the applicant and her evidence to be insufficient to establish that the respondent’s conduct caused her to have to attend the emergency room department as alleged.
70I have considered the circumstances of this case and the comparable cases with respect to general damages, including Quereshi v. G4S Security Services, 2009 HRTO 409, which awarded $5,000 dollars, and Thompson, above, which awarded $3,000 dollars. I find that it is appropriate to award $4,000 dollars to the applicant as compensation for the infringement of the Code and injury to her dignity, feelings and self-respect
Order
71The Tribunal Orders:
a. The Application is allowed;
b. Within 30 days of this Decision, Desjardins Group/Desjardins General Insurance will pay $4,000 dollars to the applicant as compensation for the infringement of the Code and injury to her dignity, feelings and self-respect;
c. Desjardins Group/Desjardins General Insurance shall pay to the applicant pre-judgment interest running from July 30, 2011, the date the applicant was advised that she did not obtain employment, on the sum at paragraph 71(b) above, calculated in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43;
d. Desjardins Group/Desjardins General Insurance shall pay the applicant 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.
Dated at Toronto, this 9th day of August, 2013.
“signed by”
Geneviève Debané
Vice-chair