HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michelle Russell
Applicant
-and-
Indeka Imports Ltd.
Respondent
DECISION ON REMEDY
Adjudicator: Leslie Reaume
Indexed as: Russell v. Indeka Imports Ltd.
WRITTEN SUBMISSIONS
Michelle Russell, Applicant
Bay Ryley, Counsel
Indeka Imports Ltd., Respondent
Chris Dockrill, Counsel
1This Decision on Remedy follows the Tribunal’s Decision on liability and partial remedy in this matter (2012 HRTO 926).
2The applicant was terminated on September 9, 2009. At the time of her termination she received a severance equivalent to ten weeks’ wages. The applicant became pregnant in November 2009 and was placed on significant medical restrictions in March 2010 because of complications associated with her pregnancy. By April 26, 2010 she was hospitalized until her son was born on May 21, 2010, ten weeks premature.
3In the first decision I found that the termination was based in part on the applicant’s disability and as a result, the respondent had breached the Code. I directed the respondent to pay the applicant $15,000.00 for injury to dignity, feelings and self-respect.
4I declined to order lost wages for the period from November 17, 2009 (the end of the applicant’s severance) to the point at which the applicant was placed on significant restrictions in late March 2010. That decision was based on a finding that the applicant had failed to mitigate her losses.
5The one issue which remained outstanding related to the applicant’s claim for lost employment insurance benefits. In the first decision, I found that but for the discrimination, the applicant would more than likely have been employed by the respondent at the time that she was hospitalized on April 26, 2010 and as a result, she was entitled to be compensated for any lost benefits which she would otherwise have been entitled to.
6The applicant did not have any documents associated with her application for employment insurance benefits. During the hearing she testified that she received employment insurance sick benefits between July and September 2009 prior to the termination. These benefits are unrelated to any claim against the respondent for lost wages or benefits but may have had an impact on her eligibility for later benefits. The applicant applied for regular benefits after she was terminated and understood that her sick benefits from July to September were being converted to regular benefits. The applicant testified that she collected regular benefits until March 2010 when she began to experience complications associated with her pregnancy. She testified that she received sick benefits in April and May 2010 until her child was born on May 21, 2010 and then parental leave benefits after that point.
7Following the release of the first decision, the parties were given 30 days to agree on a sum of money representing any loss of benefits, failing which, they were to provide their respective calculations to the Tribunal for decision. The parties were unable to reach an agreement and both filed submissions.
8The respondent takes the position that applicant has not proven a loss of benefits.
9The applicant filed the following submissions:
a. In accordance with paragraph (89) of the Decision, the applicant is entitled to any sick benefits or maternity benefits she would have otherwise been entitled to had she remained employed when she was placed on restrictions in March 2010. Ms. Russell was unable to work after April 26, 2010, due to pregnancy-related complications. She then gave birth to her son on May 21, 2010. Had her employment not been terminated, she would have received pregnancy and parental leave benefits under Employment Insurance for approximately one year – to April 25, 2011. However, because she received Employment Insurance after her employment was terminated, she was not entitled to receive any form of parental leave benefits under Employment Insurance after November 23, 2010;
b. Our calculation in this regard is for the period from November 24, 2010 to April 24, 2011, being 21 weeks x $266.00 per week for a total of $5586.00, (plus prejudgment and postjudgment interest).
10There are obvious complexities associated with any calculation of the applicant’s entitlement to employment insurance benefits following her termination. What I can conclude from the applicant’s testimony and her post-Decision submission is that she believes that if she had remained working, she would have been entitled to approximately 52 weeks of benefits which should have run from April 2010 (when she was hospitalized) to April 2011. Instead, the applicant received approximately 52 weeks of benefits, variously characterized as sick, regular and parental benefits, which ceased in November 2010.
11If the applicant received approximately 52 weeks up to November 2010, then what she is seeking is 21 additional weeks of benefits to take her to April 2011. However, the applicant has not demonstrated her entitlement to 73 weeks of benefits, nor has she proven that some action on the part of the respondent caused her to lose those 21 weeks. I know nothing about how the applicant’s entitlement to benefits was calculated and the impact, if any, of the sick benefits pre-termination (July to September 2009) and the regular and sick benefits post-termination, on the applicant’s entitlement to parental leave.
12In addition, if the applicant’s argument is that she was required to draw on her benefits prior to her parental leave, the respondent is clearly not responsible for any deduction which is related to the sick benefits in 2009 and 2010. With respect to the fact that she drew regular benefits following her termination, I cannot attribute the impact of that on the parental benefits to the respondent because the applicant failed to mitigate her losses. If I could attribute that loss to the respondent, the remedy would not be lost employment insurance benefits, but compensation for lost wages for the period during which the applicant was forced to draw on her employment insurance benefits.
13Fundamentally, the applicant does not explain how she was entitled to more benefits than she actually received and what role the respondent played in depriving her of those benefits.
14The applicant’s request for compensation for lost benefits is therefore dismissed.
Dated at Toronto, this 12th day of March, 2013.
“Signed by”
Leslie Reaume
Vice-chair