HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zoran Kosovic
Applicant
-and-
Niagara Caregivers and Personnel Ltd.
Respondent
DECISION
Adjudicator: Maureen Doyle
Date: March 13, 2013
Citation: 2013 HRTO 433
Indexed as: Kosovic v. Niagara Caregivers and Personnel Ltd.
APPEARANCES
Zoran Kosovic, Applicant
Self-represented
Niagara Caregivers and Personnel Ltd., Respondent
Kim Richards, Representative
Introduction
1This is an Application filed on June 10, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O., c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and age.
2In his Application, the applicant alleges that the job application form he completed at the respondent company included a question regarding his date of birth and his health. By way of remedy, in his Application he sought monetary compensation in the amount of 6 months of wages, but at the hearing indicated that he is content to leave the question of monetary compensation to the discretion of the Tribunal. In the Application, he also sought an employment contract and to have a law established mandating “high fines for discrimination” and he sought to have discrimination in employment made a crime, but did not pursue those requests at the hearing.
3The respondent employer denies having discriminated against the applicant. It also states that it is not an employer, but rather, that it accepts applications and refers suitable candidates to people seeking to employ caregivers.
THE FACTS
4There are several differences between the narratives provided by the parties in their Application and Response and their evidence at the hearing, and accordingly, each is set out below.
5In his Application, the applicant alleged that when he completed an application at the respondent, seeking employment as a caregiver, the respondent told him to write down all the medication he uses and indicate for what illness he uses them, and he alleged that a question on the respondent’s application form asked him to indicate his date of birth. In his Application, he also indicated that he believed he had been discriminated against on the basis of gender, but at the hearing into this matter he advised that he did not believe that he had been discriminated against on the basis of gender, but rather on the basis of age and disability.
6In his Application, he alleged that he answered an internet advertisement regarding a job opportunity and spoke with Ms. C. Richards on the telephone on June 7, 2010. He alleged that she made an appointment to meet with him at her office at 11 am on June 14, 2010. He indicated that he arrived for the interview at 10:50 and that she gave him an application form to complete. He alleged that the application form asked him to indicate his “age”, and that he wrote 60 years old. He alleged that the next question on the form asked him to indicate whether he was taking any medication, and if so, for what illness. He alleged that Ms. Richards came out of her office and instructed him to answer all questions in detail and to give the name of any medication he uses and for what illness. He alleged that he completed the application form, and that he provided detail regarding his experience as a caregiver. He alleged that he handed the application form to Ms. Richards, and that she requested he provide a reference. He alleged that he told her he had been caring for a woman who was with her daughter at a cottage, and that she would not return to the daughter’s home until the last week of August 2010 and that he provided that phone number for her to call. He alleged that in September, he called Ms. Richards again, but that she was avoiding him. He stated that after a few attempts, he stopped calling her for an interview or a job, as she was not calling him back. He concluded that Ms. Richards decided not to hire him based on his age.
7In its Response, signed by the president of the respondent corporation, Ms. Richards, and filed with the Tribunal on July 22, 2011, the respondent denied that it had discriminated against the applicant. It asserted that its application form does not ask an applicant about medications taken. It submitted that its application form requests the date of birth of an applicant, “as many of the applicants seen by the Respondent are immigrants to Canada who must obtain work permits from Canada Immigration, which department requires an individual’s date of birth on its form documents”.
8In its Response, the respondent submitted that the applicant’s scheduled appointment was for June 16, 2010 at 1:00 pm, but that he arrived at the office on June 14, 2010 at 11:00 am.
9In its Response, the respondent asserted that its typical applicants possess a “PSW certificate, CPR certificate, criminal record check, and written references”, but that none of these were received from the applicant. It asserted that without this documentation, it “cannot meaningfully assist an applicant in seeking employment”.
10In its Response, the respondent asserted that on June 18, 2010, it placed a live-in caregiver in the position the applicant sought and that the individual it placed in the position was a man with qualifications which included being a registered nurse.
11At the hearing, the applicant testified that he answered an internet advertisement for 12 job openings as a caregiver. He testified that he went to the office the day after having phoned Ms. Richards, for an 11 am appointment. He testified that he arrived late, between 12 and 1 pm, as he had difficulty finding the office. On cross-examination, he testified that when he arrived, Ms. Richards had said that he was not scheduled to come in that day. He testified that he was really not sure what day he had attended at the office, but that he was sure it was on a Monday. He also testified that he did not think Ms. Richards had instructed him to bring his First Aid certificate to the interview.
12The job advertisement was entered into evidence. It indicated that the posting was for a personal care aide, live-in caregiver for a 95 year old woman. It indicated that the employment would be permanent, full time, day and evenings for 44 hours per week to be paid at a rate of $10.25 per hour. The start date was listed as “as soon as possible”, and it indicated one vacancy. Skill requirements were listed as completion of high school, a First Aid Certificate and a Certificate in Cardiopulmonary Resuscitation (CPR). The experience required was “1 year to less than 2 years”. It also indicated that a Criminal Record Check was required. The ad indicated that the duties would be preparing and serving meals, doing laundry, performing light housekeeping, assuming full responsibility for the household when the householder was absent, providing personal care, companionship, assisting with feeding, administering medication, assisting clients with walking, bathing and “other aspects of personal hygiene”. It indicated that experience and references were required. Under the heading “Employer”, it stated “Niagara Caregivers and Personnel (Placement Agency)”.
13The applicant testified that he recalls there being 12 job openings advertised and that he was not sure if the advertisement said the caregiver would be working with a senior citizen. He recalled that the internet advertisement could have indicated that one to two years of experience as a caregiver was required, but he could not recall if it said that certificates of qualification were necessary. He also testified that he believed the advertisement stated that a Criminal Record Check was required. He testified that he thought the advertisement was placed by a company which would be the employer, not by a recruiting agency.
14The applicant testified that though the job advertisement indicated applicants required a First Aid Certificate and Cardiopulmonary Resuscitation (CPR) Certificate, he did not possess those certificates when he applied. He testified that he thought that as he had done First Aid training, he would be able to get current certification in one to two days if he got the job. He testified that he did not recall discussing a Criminal Record Check with Ms. Richards.
15I note that on cross-examination, he was very unsure about whether he had spoken to Ms. Richards or not, as he did not recognize her at the hearing. He testified that he did not believe he had ever seen her before.
16Prior to the hearing, the applicant filed a Request for an Order During Proceedings (RFOP) in which he sought an order for the respondent to provide the job application form he completed for them. The respondent responded to the RFOP, indicating that it had not retained his application form. The Tribunal issued an Interim Decision, Kosovic v. Niagara Caregivers and Personnel Ltd., 2012 HRTO 2096, directing the respondent to confirm that it had provided all arguably relevant documents and indicating that in circumstances where the respondent says it did not retain his application, arguably relevant documents would include any blank job application forms which reflect the job application forms as they existed in June 2010.
17The respondent provided a blank “Caregiver Application” form, and it was introduced into evidence. I note here that the form asks for neither the applicant’s date of birth, nor does it ask about his medications or other health information.
18The applicant testified that when he arrived for the interview, Ms. Richards gave him the application form to complete and he sat in the reception area to fill it out. He testified that Ms. Richards came out of her office at one point and instructed him to write his date of birth on the form as well as his medications and illnesses. He testified that the questions about his date of birth were not pre-printed questions on the form, but that he wrote that information in the margins on the form because he was told to do so. He testified that he left Ms. Richards with his application form and his resumé. He testified that he was not sure if she had asked him for a reference, though he thought perhaps she had, and he provided her with a telephone number for a reference. He testified that he told her that if she got no answer at the reference’s telephone number, she would have to wait until the family returned to their home from the cottage, at the start of the school year in September. He also testified that he thinks he told Ms. Richards that he cooked, was honest and had picked up prescriptions for the woman for whom he had been caring. He also testified that Ms. Richards asked him if the work was paid or unpaid, and he advised her that it was unpaid. He also testified that he and Ms. Richards may have discussed documentation such as the First Aid Certificate, but that in any event, he felt the required information was in his resumé.
19The applicant testified that between June and September 2010, he phoned the respondent business two or three times, but had to leave a message on voice mail each time. He could not recall what he had said on the messages. He testified that he waited “every day” for a return telephone call, and did not actively look for employment elsewhere during that period as he felt earning $10.00 per hour and receiving free rent and food would have been “not so bad”.
20The applicant described his relevant work experience as unpaid work for his landlady. He testified that he did grocery shopping and cooking for his 94 year old landlady and went for prescriptions for her. He testified that he was “doing things for her all day”. The applicant also testified that he was otherwise employed while he was taking care of his landlady, but that if she had problems she would call him and he would go home to help her. He testified that he enjoyed helping her and that he thought he would get this job, as he had been doing such a good job taking care of his landlady for several years.
21He confirmed that all of his other experience since coming to Canada had been in the food and hospitality industry. He testified that he has a good deal of education, but that only entry level jobs in areas other than his own, are available to him here as his education is not recognized. He testified that had he known this, he never would have come to Canada.
22The applicant’s resumé lists courses and work experience, primarily in the hospitality industry. It also indicated that he was a caregiver to a 94 year old woman from June 2001 to December 2008, and he described his duties as “Repairing, Bldg-Maintenance, Grocery Shopping, Meals Cooking, Care for Medical Appointments”, and he also indicated that he took her to shopping malls and to the bank, managed 5 properties for her, picked up medications for her at the pharmacy, did some landscaping and painting and repairs for her.
23The applicant testified that he became depressed when he did not receive a telephone call from the respondent and he concluded that he was not going to get the job. He testified that he felt hurt by not being hired, as he felt he had more skills than anyone else. He testified that he has a big heart and really wanted to help people and said that he had really enjoyed helping his landlady for 8 years. He testified that he was “shocked” by having to include his age and medications on the application form, as he had never been asked to do that before.
24The respondent’s witness was Ms. C. Richards who testified that her business is a referral business, and that it has no caregivers on its payroll. She testified that the placements were for positions of 24 hours per day, 5 days per week, and that there were some live-in positions. The duties of the caregivers include some nursing, bathing, assisting clients in and out of bed, assisting with meals, bathroom needs, housekeeping and accompanying clients to appointments. She testified that many of the caregivers she places have Personal Support Worker (PSW) training.
25She testified that the normal process for an applicant who wishes to enrol with the respondent’s business, is for the respondent to set up an interview and to tell the applicant what documents to bring to the interview, such as certificates for First Aid and CPR, Police Clearance Checks, written references, telephone numbers for references and any other certification they have. She testified that if an applicant indicates that their certification is out of date (such as First Aid certification), they are advised to update it before the interview. She testified that these calls are handled by her or her receptionist/assistant.
26She testified that if an applicant does not bring the required documents, the respondent holds the file “open” for a reasonable period of time, to give the applicant an opportunity to provide the documentation. If the applicant does not provide the required documentation, the application is not retained. Ms. Richards, who conducts the interviews, testified that she does not ask questions about applicants’ medications or illness or age.
27The respondent entered diary pages from June 7 to July 1, 2010 into evidence, which indicated that the applicant was scheduled for an appointment at 1 pm on June 16, 2010, but it is crossed out. There is no other mention of the applicant’s name or an alternate appointment date for him in the diary pages provided.
28At the outset of her evidence, Ms. Richards testified that she did not recognize the applicant but she identified her handwriting on the resumé the applicant left with her and testified that therefore she must have met with him. The handwritten notes are dated June 28, 2010 and she testified that when she makes notes on a resumé it typically means the individual came in and told her about his or her qualifications, etc., but that the individual did not have their documentation with him or her. Her notes indicate that the applicant had no references, no police check, and no First Aid or CPR certification. She testified that as the applicant did not have the necessary documentation, she would hold on to his application for a “reasonable time” until he provided it, usually about 3 months. She testified that she would have told the applicant that this documentation was required.
29The handwritten notes also indicate that the applicant was “nice”, he had a valid driver’s licence. They also state as follows: “disability pension? Take to apt’s, cooks well (European too) in hotels & rest’s”. When I asked her why she made the notation “disability pension”, she testified that she is not sure why she wrote that down, and that she was likely just writing as he was talking. She testified that in any event, people with disabilities apply for work with the respondent after having been referred by a support program, and their disability does not mean they cannot work. With reference to her handwritten notes, she also indicated that she would have written down the name of his reference and the reference’s telephone number, had he supplied them, but that in any event, her clients want a written reference. I note that the name of the woman for whom the applicant indicates he provided care is stated in his resumé and has been underlined with a pen. There is no phone number noted. Other handwritten notes appear on the resumé: “16 years ago” is written beside the entry indicating the applicant did a Frist Aid course in October 1994; “Insured?” is written beside the entry indicating the applicant is Bondable and has no criminal record; “Employers” is written beside a listing of several job descriptions (though no employers are named).
30In cross-examination, the applicant asked Ms. Richards if she ever phoned his reference. She testified that she would only phone a reference after receiving a written reference and after all other documentation was on file. She testified that sometimes people come in and leave a resumé as they are obliged to be out seeking employment, but they never hear anything further from those applicants. In these circumstances, she testified, the respondent would not go to the trouble of checking references.
31Ms. Richards also testified that she did not recall receiving any voice mail messages from the applicant. She testified that she is very good at returning telephone calls and that she would have returned the calls had she received them. She also testified that sometimes her receptionist checks the voice mail in the office, but that normally, she does it.
THE RELEVANT PROVISIONS OF THE CODE
32Sections 5 and 9 of the Code provide as follows:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
33Section 23(2) and (3) of the Code provide as follows:
23(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 oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
- 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.
34Section 45.2(1) of the Code sets out the Tribunal’s remedial powers which include the authority to order monetary compensation for loss arising out of an infringement of the Code including compensation for injury to dignity, feelings and self-respect, and the power to direct any party to do anything that promotes compliance with the Code.
35Though the respondent indicated that it did not directly employ caregivers, but only acted in a recruiting and referral capacity, the Tribunal has not read the Code so narrowly as to exclude such activities: the language of section 5, for example, prohibits discrimination “with respect to employment”. It does not require that the respondent in an Application be the direct employer of an applicant, merely that the allegation relate to discrimination “with respect to employment”. The relationship between recruiting agencies and the job seekers from whom they receive applications is such that actions by the recruiting agency, including taking applications, interviewing and referring to clients for direct employment, is activity “with respect to employment”. Accordingly, this activity is protected by the Code. Further, I note that section 23(2) is also framed with reference to the right pursuant to section 5 to equal treatment “with respect to employment” in prohibiting certain types of questions. Accordingly, I find that even though the respondent acts in a recruiting capacity only, it is liable for any of its actions which are found to breach the applicant’s right to be free of discrimination “with respect to employment”. This is consistent with the Tribunal’s jurisprudence, see for example Thompson v. Selective Personnel, 2009 HRTO 1224 (“Thompson”).
DECISION
36I find that the respondent discriminated against the applicant on the basis of age, in violation of the Code as a result of the discriminatory question on their application form. I do not, however, find that the applicant was denied employment due to discrimination on the basis of age or disability.
ANALYSIS
Credibility
37This Application raises issues of credibility. Only the applicant and Ms. Richards were present at the interview and their evidence differs in a number of key areas. As a result, my determination of the Application will turn in large part upon my assessment of the credibility of these two witnesses. I do not make a finding that either witness tried to mislead the Tribunal intentionally, but for the reasons below, I have not found their evidence to be reliable, and therefore have not found it very helpful. Further, the applicant bears the onus of establishing his claim of discrimination and with regard to the allegations which depend on his testimony alone, I have not been able to conclude that he has established his allegations on a balance of probabilities, but for the pre-printed question regarding his age on the application form.
38In assessing credibility, I have applied the traditional test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A.):
…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 demeanour of the particular witness carried the conviction of 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 is 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…
39In addition to these factors, I have also considered those set out in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, namely the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence; and observations as to the manner in which the witnesses gave their evidence.
40The applicant had difficulty in recalling several important details surrounding his interview and completing his application form. Though in the narrative portion of his Application, he alleged that the application form contained questions about his age and his medications, he testified that the application had not included such questions, but rather, that he wrote the information in the margins on the application form because he was told to do so. He could not recall if he was asked to provide a Police Clearance Check at the interview. He was not able to testify with certainty regarding any discussion about providing certificates: he testified that he did not think that Ms. Richards had told him on the phone to bring his First Aid Certificate and also testified that there may have been discussion of documentation such as the First Aid Certificate at the interview. Though he testified that he was waiting “every day” during the summer of 2010 for a call from the respondent, his testimony regarding his attempts between June and September to contact the respondent was vague: he left two or three voice mail messages, and he could not recall what he had said on the messages. Further, this was at odds with the information stated in his Application, which indicated that he called the respondent in September.
41The applicant’s recall of the interview in general was hazy: he did not recognize Ms. Richards and did not think he had met with her; though in his Application he stated that he arrived 10 minutes early for an appointment on June 16, 2010, in his evidence he stated that he arrived somewhere between one and two hours late and could not recall the date of his appointment, though he asserted it was on a Monday. I note here that Mondays in June 2010 were June 7, 14, 21 and 28. The diary pages produced by the respondent do not shed much light on when the applicant was actually seen at the respondent.
42Though Ms. Richards had some difficulty recalling the applicant, I am satisfied that she did meet with the applicant, given her handwritten notes on the applicant’s resumé. Her evidence appeared to be based upon her normal practices and she did not appear to have a detailed memory of her interview with the applicant. To the extent she was able to provide evidence about this particular interview, she relied upon notes which she made on the applicant’s resumé.
43In the circumstances where neither witness appeared to have a reliable recollection of the events, I give considerable weight to the written documentation and the evidence which is consistent with it.
Whether the Failure to Refer the Applicant for Employment was Discriminatory
44The applicant was fairly certain that the interview took place on a Monday. I note that the handwritten notes on the applicant’s resumé bear the date June 28, 2010, which as noted above, was a Monday. I conclude that the applicant attended at the office of the respondent on June 28, 2010. I note that the respondent indicates that the job for which the applicant would have applied was filled by another candidate on June 18, 2010, and is not at all clear whether the applicant was expected for an appointment on June 28, 2010. Given the fact that Ms. Richards indicated she kept incomplete applications on file for three months or so, I conclude that she likely kept this application on hand for eventual consideration even though the posting the applicant had originally called about, was filled.
45The applicant has not indicated that he brought the required documentation with him and Ms. Richards has indicated that it is her practice to write on an applicant’s resumé if there is no documentation provided. I conclude therefore that he had not brought a Police Clearance Check or First Aid or CPR Certification with him. Similarly, given the fact that Ms. Richards has underlined the name of the woman for whom the applicant says he provided care, I conclude that the applicant indicated that she would act as a reference for him, but I do not conclude that he provided a written reference and there is no indication in the written materials that he provided a phone number. I am satisfied that, based on the requirements posted in the job advertisement, applicants were required to produce all of these. I am also satisfied that an application without all of these elements would not have been complete and would not have been an “open” application for consideration for employment.
46The applicant testified that he left “two or three” voice mail messages at the respondent’s office over the course of the summer. He could not recall what he had said. The respondent’s witness had no recollection of any such messages. Furthermore, his Application indicates only that he attempted to contact the respondent in September. Therefore, I cannot conclude that the applicant has established on a balance of probabilities that he made meaningful attempts to follow up on the status of his incomplete application with the respondent.
47In circumstances where the respondent was keeping the applicant’s incomplete application on hand for eventual consideration, but he failed to provide the documentation which would make his application complete, or make other meaningful attempts to follow up on his incomplete application, I find that it was reasonable for the respondent to disregard his application. Accordingly, I do not find that the evidence establishes on a balance of probabilities that the respondent discriminated against the applicant, either on the basis of age or on the basis of disability, in not referring him to one of their clients for employment.
48With regard to the applicant’s allegation at the hearing that Ms. Richards instructed him to write his age and list his medications on the application form, given the unreliability of his evidence, as described above, I do not find that he has established on a balance of probabilities that Ms. Richards so instructed him. While the handwritten notes on the applicant’s resumé include the notation “disability pension?”, consistent with her testimony, the other notes on the resumé do appear to be notations made of a conversation she had with the applicant. She indicated that “disability pension?” must have simply been written as part of her conversation with the applicant. I have not found the testimony regarding the content of any conversation between the applicant and Ms. Richards to be reliable and therefore it is not possible to make a finding on a balance of probabilities regarding what was said between the two which would have led to that notation. The notation could refer to information he may have volunteered or an inquiry he may have made. In any event, I am not satisfied that this notation establishes that the respondent instructed the applicant to list his medications on the application form, which is what he has alleged.
Questions On The Respondent’s Application Form
49The respondent was unable to produce the application form completed by this Applicant. In its stead, in response to the Tribunal’s direction in this matter, the respondent provided a blank application form. I note that when this form was provided at the hearing, more than two years had elapsed since the events complained of. The applicant thought it might have been the application form he used, and testified that he wrote the information regarding his age and medications in the margins.
50In examining the blank application form provided by the respondent and comparing it to the Response filed by the respondent with the Tribunal on July 22, 2011, in which the respondent acknowledges including a question regarding date of birth, however, it is evident that the blank form cannot be identical to the form completed by the applicant. This is not to say that the respondent intended to mislead the Tribunal, as indeed, in the above-noted Response , the respondent has been quite forthcoming that the form asked applicants for their date of birth and stated the respondent’s reasons for including that question. Further, as indicated above, I have not found that the applicant was denied an employment opportunity for discriminatory reasons. As noted above, due to the applicant’s poor memory of events, I have not concluded that he has established on a balance of probabilities that the respondent made an oral request of him for his date of birth or information regarding his medications, or provided him orally with a special instruction to include any of that information on the application form. However, according to the respondent’s admission in its above-noted Response and given the fact that it provided no testimony contradicting its admission regarding the form, I find that the application form used by the respondent at the time the applicant applied, included a question seeking the applicant’s date of birth. I do not find that the form included a question regarding medications, however, as given the fact that the respondent made an admission contrary to its interest in the Response regarding seeking applicants’ date of birth, there is no reason to conclude that it would not have been equally forthcoming had it included a question regarding medication use. I am also satisfied, however, that as the blank application form provided by the respondent at the hearing does not include a question about date of birth, the respondent no longer seeks date of birth information from applicants.
51In Thompson, the Tribunal found that the respondent employment agency included a question on its application form asking if the applicant had ever been under psychiatric care. At paragraph 23 in Thompson, the Tribunal held that the mere asking of a question relating to psychological treatment on an application form was prima facie discriminatory, even where the applicant is not refused a job. In that case, the job opening was put on hold:
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.
52In this case, I have not found that the applicant was refused a job for discriminatory reasons, but by asking the applicant for his date of birth, the respondent discriminated against the applicant in respect of employment contrary to section 5 and contravened s. 23(2) of the Code. Though the respondent has indicated in its Response that the question was included on the application form because many applicants require a “work permit” from the Canadian government, and a date of birth is required in that process, I do not find that this is a satisfactory reason to include a question regarding date of birth on an application form. In my view, if the respondent refers an individual for employment who is not yet permitted to work in Canada, and if the individual must participate in a process requiring date of birth in order to be legally permitted to work in Canada, inquiries regarding date of birth must be made after the decision to refer the individual to a client has been made and the individual is actually engaged in the process of obtaining permission to work in Canada.
Remedy
53The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provides:
(1)On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
(2)For greater clarity, an order under paragraph 3 of subsection (1),
(a) May direct a person to do anything with respect to future practices; and
(b) May be made even if no order under that paragraph was requested.
54With respect to remedy, as I have not found that the applicant was denied an employment opportunity for discriminatory reasons, I make no award of damages for lost wages, nor do I make a monetary award for injury to dignity, feelings and self-respect in relation to the fact that the applicant was not successful in securing employment through the respondent. Similarly, though I note that he did not repeat this request at the hearing, as I have not found that the applicant was denied an employment opportunity for discriminatory reasons, I make no order for an employment contract, nor do I make an order to refer him to a client with a view to securing employment.
55Where the Tribunal finds that an applicant’s rights under the Code have been violated, as held in ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425 (Ont. Sup. Ct.), the court held that an award for damages for injury to dignity, feelings and self-respect, should be based on a number of considerations, including the overall impact of the discrimination on the applicant, the particular vulnerability of the applicant and the frequency and duration of the infringement.
56In Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paragraph 52, the Tribunal stated that both the objective component of the seriousness of the conduct and the subjective component of its effect on the particular applicant, must be considered in making an award for injury to dignity, feelings and self-respect.
57In determining the appropriate award in this case, I have particular reference to other cases where an applicant’s rights were breached by a question asked in a pre-employment context.
58In Thompson, the Tribunal awarded the applicant $3000.00 in respect of a violation of s. 23(2) of the Code. In that case, the applicant was so offended by the fact that the question was asked, she called the employer the day after her interview, withdrawing her name from consideration for employment due to the question. The decision indicates that she felt humiliated and that she felt there was no chance she would obtain employment through the respondent, due to her answer to the question regarding her disability.
59In Yildiz v. M.A.G. Lighting, 2012 HRTO 2232 (“Yildiz”), the Tribunal awarded $1,500.00 where the respondent asked the applicant about his place of origin in a pre-employment conversation while the applicant was working on a “try-out” basis at the respondent’s premises. The Tribunal found that the decision not to employ the applicant was not based on a prohibited ground, but made the award in respect of the breach section 5 by virtue of section 23(2) of the Code. In that case, the Tribunal noted that the applicant testified about having suffered ethnic discrimination while in his home country of Turkey, and that he was “deeply upset” and his “self-respect was injured”. The Tribunal also stated that the “injury is made worse in the circumstances of this case where the decision not to hire the applicant was made after the question was asked and he had worked for a day, whether as a tryout or not”. The Tribunal also noted that the breach had not resulted in the applicant being unable to get on with his life and that he found another job within days of the incident.
60In cases where the Tribunal has found a violation of s. 23(2) of the Code, but there has been no evidence that the discriminatory questions had resulted in any injury to the applicant’s dignity, feelings or self-respect, the Tribunal has not made an order for monetary compensation. See for example, Shaw v. Ottawa (City), 2012 HRTO 593, Hobbs v. Hamel, The Cleaning House Ltd., 2012 HRTO 1068 and Unantenne v. Hospital for Sick Children, 2012 HRTO 1222.
61In this case, the applicant has testified that he was “shocked” by the inclusion of a question regarding his age on the application form. The remainder of his evidence regarding the question of the effects of these events on him is related to depression he says he experienced due to the fact that he did not secure employment through the respondent. As noted above, however, as the only violation of the Code I have found to have occurred is by virtue of the inclusion of a question on the application form regarding age, in making a remedial award, it is appropriate to consider only the effect on the applicant of being asked a question about his age on the application form. Accordingly, the applicant’s evidence regarding the effect of not having secured employment is not considered in making this award.
62As noted above, merely by asking the question, the respondent has violated the applicant’s right to be free from discrimination with respect to employment and the question can serve to classify applicants by age. I do not find, however, that the mere asking of the question had a significant impact on this applicant, as I note that he continued to wait for a call back from the respondent regarding employment and in fact did not seek employment elsewhere as he placed such high value on the employment he sought to secure through the respondent. He indicated simply that he was “shocked” as he had never been asked for this information when applying for a job before. Further, I have not found that the asking of the question was a factor in the fact that the applicant was not successful in obtaining employment through the respondent. Unlike the applicant in Thompson, the evidence does not indicate that he was humiliated by the asking of the question and withdrew his application for employment from consideration by the respondent. Unlike the applicant in Yildiz, the evidence does not indicate that the applicant experienced deep upset in the context of having lengthy experience of discrimination and having worked for a day for the respondent. I do note, however, that he provided evidence of some impact on him and accordingly, in considering the objective component of a breach of the Code and the subjective component of the impact of the breach on this applicant, I find it is appropriate to order the respondent to pay to the applicant $500.00 in monetary compensation for damage to dignity, self-respect and feelings.
63Given the fact that the current application form entered into evidence by the respondent does not include questions which contravene s. 23(2) of the Code, I do not find that any further orders are necessary to promote compliance with the Code.
ORDER
64The Application is allowed in part, in relation to a breach of section 5 of the Code by virtue of 23 (2) of the Code. The Tribunal orders as follows:
The respondent shall pay to the applicant the sum of $500.00, together with pre-judgment interest calculated in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43. Post-judgment interest shall be payable commencing 30 days from the date of this Decision.
Dated at Toronto, this 13th day of March, 2013.
”Signed by”____________________
Maureen Doyle
Vice-chair