Keana-Nicole Olegario v. The Oxygen Specialists, Inc., 2013 HRTO 2110

Human Rights Tribunal of Ontario

B E T W E E N:

Keana-Nicole Olegario Applicant

-and-

The Oxygen Specialists, Inc. Respondent

DECISION

Adjudicator: Andrew Diamond Date: December 20, 2013 Citation: 2013 HRTO 2110 Indexed as: Olegario v. The Oxygen Specialists, Inc.

APPEARANCES

Keana-Nicole Olegario, Applicant Self-represented

INTRODUCTION

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 pregnancy. Specifically, the applicant alleges that her medical benefits and eventually employment was terminated while she was on maternity leave in contravention of section 5 (1) of the Code.

2The respondent corporation has been wound-up in Ontario and has filed Articles of Dissolution with the Tribunal. The former president of the respondent sought permission to appear at the hearing by telephone in the capacity of both representative for the respondent and witness. In a Case Assessment Direction dated April 13, 2012 that request was denied, with reasons, and he was instead directed to appear in person. No one appeared for the Respondent at the hearing, either in the capacity as representative or for the purpose of giving evidence, and the hearing proceeded with evidence of the applicant only. At the conclusion of the hearing the Tribunal sought additional information from the applicant with regards to other employees, which was subsequently provided by email.

3Despite the respondent not tendering any evidence at the hearing, the applicant still has to prove on the balance of probabilities that she was treated differently on the basis of sex (i.e. pregnancy) and/or family status.

4For the reasons set out below I find that the applicant's rights under the Code were breached by the respondent.

EVIDENCE AND FINDINGS

5Both parties agree that as early as January 2009 the respondent was having financial difficulty. The applicant's evidence is that she and Karshima Reynolds, another employee, agreed to take a 20 per cent reduction in salary in exchange for equity in the business. The respondent in its pleadings agrees that the applicant's salary was cut in January 2009; however, the respondent in its pleadings denies that this was done in exchange for equity in the business. Regardless, no equity was ever distributed and the applicant continued to be employed at the reduced salary.

6The applicant's evidence is that on February 23, 2009 she advised the president of the respondent that she was pregnant. In fact as the pregnancy developed it was classified as a high-risk pregnancy. Due to the high-risk nature of the applicant's pregnancy she received a medical certificate dated May 20, 2009 advising her to commence sick / maternity leave. The medical certificate was sent to Service Canada on May 25, 2009, in order to allow the applicant to start receiving income replacement benefits.

7On June 2, 2009 the applicant received a Record of Employment from the respondent indicating she was on temporary layoff. On June 2 the applicant advised the respondent that she was in fact on sick leave. There was no evidence as to how this was resolved other than the applicant's testimony that there was a misunderstanding of her employment status. Nevertheless, it appears as if the applicant continued to receive sick leave benefits from the Government of Canada and I find that she was in fact on sick leave.

8It would appear from the applicant's testimony that she had little or no communication with the respondent until after her son was born in September 2009. The applicant testified that on September 26, 2009 she contacted Sunlife, the respondent's employee benefits provider to advise of her son's birth and to have him added to her policy. Sunlife advised the applicant that her benefits had been terminated as of September 1, 2009.

9In response to the information provided by Sunlife the applicant attempted to contact the president of the respondent by email on October 1 and October 14. By email dated October 14, 2009 the respondent advised the applicant that the respondent was ceasing operations and had terminated all of its employment benefits for all employees. The respondent further advised the applicant that it would cease operations before the end of her maternity leave in 2010.

10One of the applicant's co-workers, Ms. Reynolds, gave evidence and advised the Tribunal that her last day of employment with the respondent was October 30, 2009, and that her benefits were continued until her last day worked. The applicant testified that she believed that Ms. Reynolds was employed up until the time the business was closed. As a result, and with no evidence to the contrary, I find that the respondent did in fact cease operations on October 30, 2009.

DECISION

11I find that the respondent terminated the applicant's employee benefits prematurely because she was on maternity leave. The respondent regarded the applicant as a non-active employee who would not be coming back to work and therefore believed it was entitled to terminate her benefits. However, by basing its decision on the fact that the applicant was on leave the decision to terminate the applicant's employee benefits breaches the applicant's rights under the Code.

12Despite the fact that the respondent breached the applicant's Code rights, I find that there is no evidence to support a compensatory award for any special damages that might flow from that breach. The applicant discovered her benefits were terminated on September 26th. The evidence is that her benefits would have been terminated in any event on October 30. The applicant's written submissions indicate that as a result of the termination of her benefits she had to pay the hospital expenses for the delivery of her child, but she did not provide any evidence in support of this claim nor even indicate how much that was. In the absence of any evidence, I decline to award damages for specific losses arising from the early cancellation of benefits.

13Having found that there are no special damages, I turn now to the assessment of monetary compensation for injury to dignity, feelings and self-respect. The Tribunal will generally asses both the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination in determining an appropriate award for injury to dignity, feelings and self-respect: see Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paras. 52 – 54. In Sanford v. Koop, 2005 HRTO 53 the then Chair of the Tribunal listed a number of factors for the Tribunal to consider when awarding such damages including:

• Humiliation experienced by the complainant
• Hurt feelings experienced by the complainant
• A complainant's loss of self-respect
• A complainant's loss of dignity
• A complainant's loss of self-esteem
• A complainant's loss of confidence
• The experience of victimization
• Vulnerability of the complainant
• The seriousness, frequency and duration of the offensive treatment

14The applicant testified that she was very upset at learning that her benefits had been terminated. She sets out in her written submissions:

At a time that I should be celebrating and cherishing the birth of my child with happiness and jubilee, instead I was stressed and depressed due to the finding that I now am responsible for all my hospital expenses. This financial situation severely put me on even more stress that I went to post partum depression for 13 months [sic].

15However, no medical or other evidence, aside from the applicant's testimony, was tendered in support of this aspect of the claim. I accept generally, based on the applicant's personal testimony, that she was very upset about the loss of benefits. However, in the absence of any medical evidence corroborating the claim of a 13 month post-partum depression, I cannot find that there is a sufficient evidentiary basis to award compensation for the extent of the intangible loss claimed. Additionally, even though I accept that the loss of benefits had an impact on the applicant, it is difficult to accept that the loss of her job (which was unrelated to any Code factors) was not also a factor in the difficulties she may have experienced during this period. Additionally, in assessing the appropriate amount for general damages, I must balance the above with the fact that the applicant would have lost her benefits in any event a month or so later due to the closure of the business and not as a result of any Code violation. Taking into consideration all of the circumstances I find that $1,000 is the appropriate amount for general damages in this case

16Lastly I want to apologize to the applicant for the amount of time it has taken for me to prepare and release this decision.

ORDER

17For the foregoing reasons, I hereby make the following order:

a. The respondent shall pay to the applicant the sum of $1,000 as compensation for injury to dignity, feelings and self-respect; and

b. Post-judgment interest shall accrue on this amount at the rate of 3% per annum on any amount unpaid within 30 days of the date of this Decision.