HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kim Korkola Applicant
-and-
Maid Day! Maid Day! Inc. Respondent
DECISION
Adjudicator: Douglas Sanderson Date: March 28, 2013 Citation: 2013 HRTO 525 Indexed as: Korkola v. Maid Day! Maid Day! Inc.
APPEARANCES
Kim Korkola, Applicant Sharmaine Hall, Counsel
Maid Day! Maid Day! Inc., Respondent Diane King, Representative
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 sex (pregnancy).
Background
2The applicant began her employment with the respondent in November 2009. There is no dispute that the respondent provides a variety of home cleaning services and the applicant was employed as a cleaner. Cleaners work in two-person teams to whom the respondent assigned work each day. In the applicant's case, her partner would receive their assignment and relay it to the applicant. Her partner, Jennifer, also picked up the applicant and drove them to their assignments and the applicant paid her a fee for transportation. The applicant testified that she normally worked five or six hours per day with travel and sometime more, depending on the work assignments.
3The applicant learned that she was pregnant in April 2010 and was informed that she was about two months pregnant at the time. The applicant stated that she was excited and happy with the news, but somewhat nervous to inform Jayce Jamieson, the respondent's owner/operator, because she understood that Ms. Jamieson "did not take kindly" to her employees becoming pregnant. There is no dispute that the applicant informed Ms. Jamieson of her pregnancy shortly thereafter. The parties differ with respect to how Mr. Jamieson reacted to the news, but this conflict is not material and I need not resolve it. In any event, it is not disputed that the applicant continued to work and did not initially require changes to her work assignments. The applicant's evidence, which was unchallenged, was that she intended to work until she qualified for Employment Insurance benefits during her pregnancy/parental leave of absence.
4The applicant testified that on June 18, 2010, she and her partner were assigned to a "move-in/move-out" job. As the name implies, such a job occurs either just before occupants move into a house or after they move out. The applicant indicated that a move-in/move-out job is more detailed than a regular cleaning job and includes tasks such as cleaning the tops and sides of cupboards, cleaning around windows, moving appliances to clean behind them and even cleaning the inside of appliances. The applicant described her job on June 18, 2010 as being typical of a move-in/move-out job with lots of work. The applicant was by this time approximately five months pregnant and stated that she did not "feel so wonderful" after this job. The applicant indicated that she felt tired and out of breath. There is no dispute that the applicant did not advise the respondent of how she felt after this job or ask the respondent to modify her work at that time.
Credibility
5The parties dispute many of the facts regarding their interactions on and after June 25, 2010. The only witnesses were the applicant and Ms. Jamieson. Accordingly, I have determined the facts of this case, on a balance of probabilities, based largely on my assessment of the witnesses’ credibility. In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:
…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.
Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
June 25, 2010
The Applicant
6The applicant testified that on June 25, 2010, Jennifer called the applicant to inform her of their work assignment for that day. The applicant indicated that the home to which they were assigned was very large – a "mansion". The applicant was familiar with the house, having cleaned it occasionally, and was concerned because of the large surface area of the floors and large bathtubs. The applicant's evidence was that the respondent required cleaners to clean floors and tubs by hand and that she would be required to get into the large tubs at this home to clean them. The applicant stated that she was concerned that working for extended periods on her hands and knees would be unsafe and uncomfortable at that stage of her pregnancy. Consequently, she asked Jennifer to request assignment to smaller homes.
7I pause here to note that the applicant and Mr. Jamieson did not initially speak directly to each other regarding the applicant's work assignment on June 25, 2010. Rather, they communicated through Jennifer, who acted as an intermediary, relaying information that the applicant and Ms. Jamieson imparted to her. Jennifer apparently now lives in the United States of America and did not testify at the hearing; therefore, there was some uncertainty regarding how accurately she relayed the messages imparted to her and it is unclear exactly how this "three-way" conversation unfolded.
8The applicant's evidence was that Jennifer relayed to her that Mr. Jamieson considered the applicant to be refusing to work and expected the applicant to draft a letter of resignation, which Jennifer would pick up. The applicant stated that she asked Jennifer to relay to Ms. Jamieson that she was not refusing to work, but did not feel she could "do" the mansion and felt it would be better if she did smaller homes. The applicant testified that, at some point in the exchange, Jennifer indicated that she would do all the floors and bathrooms, leaving applicant with the lighter work. The applicant did not feel this would be fair to Jennifer and declined this offer, which Jennifer relayed to Ms. Jamieson. Later in her testimony, and in cross examination, the applicant indicated that Jennifer offered only to clean the floors of the large house. Ultimately, Mr. Jamieson declined to reassign the applicant and Jennifer cleaned the assigned home by herself.
9The applicant testified that she later contacted Ms. Jamieson directly. According to the applicant, Ms. Jamieson informed her that the schedule could not be amended as the applicant requested and that she considered the applicant's unwillingness to clean the assigned home to be a refusal to work. The applicant stated that she informed Ms. Jamieson that she was not refusing to work and inquired whether she would be given work in the future. The applicant stated that Ms. Jamieson informed her that there was no such thing as modified work in this line of business and if the applicant could not do her regular work then she could not do the job. According to the applicant, Ms. Jamieson said that she would give the applicant a Record of Employment (“ROE”) for illness as a result. The applicant indicated that pregnancy was not an illness, but, in any event Ms. Jamieson asked her to provide a doctor's note stating the applicant's restrictions.
10The applicant testified that she did not understand why she could not continue to work when she asked for something that she believed was possible. According to the applicant, most homes the respondent claims are of average size and would have been manageable for her. The applicant stated that she often switched partners for different jobs.
The Respondent
11The respondent testified that Jennifer called in the morning of June 25, 2002 and informed her that the applicant was not coming to work. Jennifer informed her that the applicant did not want to clean the large home assigned to them. Ms. Jamieson noted that the house in question was large – about 6,000 square feet – and had large floors, bathrooms and kitchens. Ms. Jamieson's evidence was that an average home was approximately 2,000 square feet. She further noted, however, that this particular home was well-maintained and easy to clean.
12Mr. Jamieson's evidence was that Jennifer agreed to clean floors and bathrooms, but the applicant continued to refuse to work in the assigned home. Accordingly, Ms. Jamieson stated that she called the applicant and asked her to make an effort to try to clean house, but warned her that she would consider failure to do so to be a refusal to work. According to Ms. Jamieson, the applicant did not connect her request to amend the schedule to her pregnancy.
13Ms. Jamieson stated that she asked the applicant to provide a doctor's note to ensure she had modified duties. Ms. Jamieson's evidence was that she and the applicant agreed that she would issue a ROE for the applicant because she could not clean bathrooms and floors. The respondent issued a ROE for the applicant, dated July 7, 2010, that indicated illness or injury (code “D”) as the reason for issuance.
14Ms. Jamieson explained that work assignments are allocated based on location and are designed to minimize travel between jobs, the respondent serves customers throughout the GTA. Ms. Jamieson stated that the respondent schedules jobs so that they are within a 15 minute drive. Ms. Jamieson also testified that the schedule is designed to ensure that employees get between five and eight hours of work daily.
15In cross-examination, Ms. Jamieson confirmed that she understood the applicant wanted to be assigned to smaller homes. Also in cross-examination, Ms. Jamieson stated that the applicant asked to be put on sick leave.
16Applicant’s counsel noted that the respondent’s witness statement indicated that the applicant stated that she could not do the heavy work due to her pregnancy, which appears to be inconsistent with Ms. Jamieson's evidence that she was not given a reason for the applicant's request. Ms. Jamieson stated her evidence was not inconsistent with the statement and explained that the statement described what occurred. Applicant’s counsel also suggested to Ms. Jamieson that the applicant's request to work in smaller homes was not consistent with a request to go on sick leave. Ms. Jamieson responded to the effect that she was simply trying to accommodate the applicant's needs and did not think much about it.
17In cross-examination, Ms. Jamieson's evidence was that on June 25, 2010 the teams had already been given their assignments and were either on their way or had already begun their work assignments. In these circumstances, Ms. Jamieson concluded that she could not reassign work to meet the applicant's last-minute request. She could, however, modify the duties required of the applicant to meet her needs. Ms. Jamieson's evidence was that teams were assigned to specific clients, although she agreed that the house assigned to the applicant's team was not a regular job for them. Ms. Jamieson stated that customers would not allow other teams to come into their homes; however, she also agreed that some customers may accept having different staff. She also stated that customers are not involved in scheduling. Rather scheduling is based on staff abilities and availability. Ms. Jamieson agreed that she did not reconsider reassigning the applicant after June 25, 2010.
Findings
18There is no dispute that the applicant did not perform the work assigned to her on June 25, 2010 and never again worked for the respondent. There is no dispute that the respondent offered modified duties to the applicant that day, but the applicant stated she was not relieved of the requirement to clean bathrooms/tubs. I generally found the applicant to be a credible witness who gave her evidence in a straightforward, unexaggerated manner. On this point, however, her evidence was not consistent, as she initially stated that Jennifer agreed to clean both the floors and bathrooms, which she declined because she felt it was unfair to Jennifer, but later testified that Jennifer agreed to clean the floors only, as a reason for declining this modification. The applicant's evidence also clearly indicated that she considered reassignment to a smaller home to be the only acceptable accommodation and was not at all receptive to any other work modification that might address her needs. On the other hand, the respondent’s evidence was consistent that Jennifer would clean the floors and bathrooms and that she asked the applicant to do her best to clean the house. Consequently I find that the respondent offered to modify applicant's work by relieving her of floor and bathroom cleaning duties.
19I find, however, that the applicant did not ask to be placed on sick leave during her conversation with Ms. Jamieson on June 25, 2010. First, I find it unlikely that applicant would seek medical leave when she needed to continue working to qualify for Employment Insurance benefits during her pregnancy/parental leave. Second, there is no dispute that the applicant requested modified duties, which is not consistent with seeking medical leave. I found Ms. Jamieson's attempt to explain this inconsistency, i.e., that she was trying to accommodate applicant, to be unconvincing and illogical, since a medical leave did not respond in any way to the applicant's needs. In this regard, I found that Ms. Jamieson's evidence was often inconsistent and given in an evasive manner and I did not find her to be a credible witness. There is no dispute that the parties discussed a ROE and I find it was Ms. Jamieson who decided to issue a ROE for illness or injury, which I find reflected that the applicant had to perform her work without modification.
20I also find that the applicant asked for modifications to her work to accommodate pregnancy related restrictions. The applicant's evidence was that she explained that she did not want to clean the assigned house because of the large floor areas and bathrooms, including large bathtubs, that would require her to work on her hands and knees. Ms. Jamieson was aware that the applicant was pregnant and there was no evidence that the applicant had any other reason to seek accommodation or that she had a history of attempting to avoid work assignments. In any event, Ms. Jamieson's evidence that she did not understand the request to be related to the applicant's pregnancy contradicted the respondent’s witness statement. When this inconsistency was put to her, Ms. Jamieson suggested that there was no inconsistency and adopted the statement as the explanation of events. In the circumstances, I find that Ms. Jamieson was aware that the applicant was seeking accommodation of her pregnancy related restrictions.
21I also find that Ms. Jamieson informed the applicant that she would receive no more work from respondent if she refused to work in the assigned home that day. Ms. Jamieson's evidence was that the applicant refused to work by seeking an alternate assignment. This conclusion is consistent with the undisputed fact that the applicant did not receive any further work from respondent after June 25, 2010. It is also consistent with Ms. Jamieson's view that the applicant was incapable of performing the work required of her, which view she repeated throughout her evidence. In particular, Ms. Jamieson’s demonstrated her view of the applicant’s ability to work when she caused the respondent to issue the ROE, indicating the applicant had ceased working because of illness or injury.
After June 25, 2010
The Applicant
22The applicant testified that after her conversation with Ms. Jamieson on June 25, 2010, she scheduled an appointment with her doctor as soon as possible. However, she received a ROE from the respondent, dated July 7, 2010, although she had not yet provided any medical information to her employer. The applicant adduced a letter from her physician, Dr. Gringnorten, dated July 12, 2010. The letter indicates Dr. Gringnorten's opinion that the applicant should be on modified duties because of her pregnancy. Specifically, Dr. Gringnorten indicated that the applicant should not lift more than 20 pounds, should have breaks every 2 to 3 hours, should not stand or bend for long periods of time and should not clean floors on her hands and knees. Dr. Gringnorten also noted that the applicant reported that she could not get in and out of large tubs.
23The applicant’s evidence was that she mailed or faxed the doctor's note to the respondent and called to follow-up. The applicant testified that she spoke to Ms. Jamieson after delivering the letter and asked if she would be given work. According to the applicant, Ms. Jamieson informed her that the respondent could not accommodate her. The applicant testified that at this point she understood that she was no longer employed by the respondent. The applicant’s evidence that she felt scared and upset at losing her job with the respondent and was not sure what to do. She was concerned that she was reliant on her partner’s income and felt stress about her ability to provide for her family. The applicant stated that in these circumstances she could not enjoy her pregnancy.
24The applicant stated that she approached her previous employer, Superior Wire, who rehired her and provided her with modified duties. The applicant's evidence was that she worked at Superior Wire from approximately August 2010 until November 4, 2010, when she commenced pregnancy leave and was able to accumulate enough hours to qualify for Employment Insurance benefits. Following her pregnancy/parental leave, however, Superior Wire was in financial difficulty and did not have a position for her. The applicant tendered documents setting out her job search efforts. Her evidence was that she secured a position as a part-time personal support worker in August 2012, working about four hours per week on average.
The Respondent
25As noted above, the respondent issued an ROE for the applicant, dated July 7, 2010. Ms. Jamieson testified that she issued the ROE before receiving medical information from the applicant because of the delay in receiving this information and because she and the applicant agreed that the applicant could clean bathrooms and floors. Ms. Jamieson's evidence was that the next time she spoke with the applicant the applicant's concern was with respect to administrative matters, such as the ROE and did not inquire regarding returning to work or receiving any hours.
26In cross-examination, Ms. Jamieson agreed that she advised the applicant that she would issue the ROE if the applicant provided the necessary medical documentation. However, Ms. Jamieson explained that she did not wait for the medical documentation based on the applicant's statement that she could not perform her duties. Ms. Jamieson stated that she wanted to assist the applicant and was looking out for her best interests.
27Mr. Jamieson's evidence was that the doctor's note provided by the applicant confirmed that the applicant could not perform her job duties. Ms. Jamieson agreed, however, that by the time the letter arrived, she considered the issue of the applicant returning to work was closed after issuing the ROE, as she had no idea when the applicant would return. Applicant's counsel pointed out to Ms. Jamieson that Dr. Gringnorten's letter actually indicated that the applicant was able to work and asked Ms. Jamieson if she turned her mind to offering her work. Ms. Jamieson responded that she did not because the ROE had been issued. Ms. Jamieson stated that she could have offered the applicant modified duties if she had received Dr. Gringnorten's letter before issuing the ROE. Ms. Jamieson indicated, when asked, that she was not aware she could alter her decision regarding applicant’s employment once the ROE was issued. Ms. Jamieson confirmed that she considered the medical note to be "after-the-fact" and therefore did not contact applicant to discuss modified work.
28In her evidence, Ms. Jamieson testified that employees are entitled to use mops to clean floors where the floor area is "excessive". Ms. Jamieson stated that clients will sometimes provide mops for the cleaners. She stated that employees have microfibre mops for large floors. Ms. Jamieson's evidence, however, was that bathrooms, kitchens and entrances had to be cleaned by hand. In cross-examination, applicant's counsel pointed out that the respondent's witness statement stated categorically that the respondent does not use mops, as they are not as effective as cleaning on hands and knees and considered cleaning by hand to be "a statement of excellence". Ms. Jamieson responded by confirming that only bathrooms, kitchens and entrances must be done by hand. Ms. Jamieson confirmed that she did not discuss the possibility of using the mop with the applicant because the applicant refused to even try to work on June 25, 2010.
29The respondent's witness statement suggests that the applicant's request for accommodation on June 25, 2010 could have cost the respondent business and the applicant put it "in a grave situation" by not working that day. The statement further indicated that that not accomplishing their service would be a hardship for the respondent. In cross-examination on this point, Ms. Jamieson agreed that accommodating the applicant in the manner she requested would not have imposed a financial hardship on the respondent.
30When asked about the steps she took to inform herself about her obligations under the Code, Ms. Jamieson stated that she consulted her accountant who advised her to issue a ROE since the applicant was unable to work and wanted sick leave. Ms. Jamieson stated that she assumed her accountant was knowledgeable regarding the requirements of the Code.
Findings
31I have already found that the applicant did not ask to be placed on disability leave and wished to continue to work with modifications to her duties. Consistent with this request, I find that the applicant provided the respondent with medical information that confirmed that she could continue working, with accommodation, and followed up with Ms. Jamieson to inquire if work was available in light of this information. This conclusion is consistent with the contents of Dr. Gringnorten’s letter and with the applicant’s need to continue to work. Of course, Ms. Jamieson did not offer the opportunity to work, modified or otherwise, after June 25, 2010. Ms. Jamieson provided a number of explanations for this, which I found inconsistent and not credible. Ms. Jamieson testified that she asked for medical documentation in order to provide modified duties, but also told applicant that she considered her to be refusing to work and advised that she would issue a ROE indicating illness or injury, which she did. Ms. Jamieson also stated that she could have provided modified duties to the applicant had she received the medical information before she had the ROE issued.
32According to Ms. Jamieson, once the ROE was issued, the matter was closed, notwithstanding the applicant's medical information confirming the applicant was able to work with restrictions similar to those the applicant herself described on June 25, 2010. Ms. Jamieson's evidence in this regard was frankly unbelievable, but I do consider that it reflects her approach to the applicant’s situation. In my view, the evidence leads to the inescapable conclusion that Ms. Jamieson considered the matter of the applicant's employment closed as of June 25, 2010. I find that once Ms. Jamieson decided to place the applicant on disability leave she gave no consideration to whether the respondent could provide modified work to the applicant. I find that Ms. Jamieson was not prepared to change this view when confronted with medical information that indicated the applicant was able and willing to work, either when the applicant submitted the medical letter from Dr. Gringnorten or when applicant followed up on Dr. Gringnorten's letter with an inquiry regarding further work.
33I accept the applicant’s evidence that she understood that she was not allowed to use mops at all. Her evidence on this point was internally consistent and also consistent with her concern that cleaning the large floor areas in the assigned house on June 25, 2010 would be difficult because it would be done by hand. Ms. Jamieson’s evidence that mops could be used in certain circumstances contradicted the categorical assertion in the respondent’s witness statement that mops were not used. Ms. Jamieson was particularly evasive when testifying about the use of mops. According to Ms. Jamieson mops could be used where the floor areas to be cleaned were particularly large. The large floor area of the house assigned to the applicant’s team on June 25, 2010 was one of the applicant’s concerns that day. Consequently, if the cleaners were entitled to use mops in the manner described by Ms. Jamieson, I find it unlikely that the applicant would have been concerned about cleaning the house. I also would have expected Ms. Jamieson to remind the applicant that she could use a mop for most of the floor areas, which would have addressed her concerns regarding her physical restrictions and regarding imposing an unfair workload on her partner. My impression was that if the respondent permits the use of mops, then this was a development that came after the applicant’s employment.
Analysis and Decision
34The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent stopped giving the applicant work because she was pregnant. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.
35The relevant sections of the Code are as follows:
5(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.
10(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.
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.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.
36.The applicant focussed on the issue of accommodation. However, as the Tribunal noted in Baber v. York Region District School Board, 2011 HRTO 213, the duty to accommodate is not a free standing obligation under the Code. Rather, it arises only pursuant to sections 11, 17 or 24 of the Code where a person is disadvantaged because of a prohibited ground of discrimination and the respondent defends its otherwise discriminatory actions. The Supreme Court of Canada noted in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3 (“Meoirin”) that the inquiry moves to the bona fides of the requirement in question only if a prima facie case has been made out that the requirement is discriminatory. In other words, the duty to accommodate arises only where an applicant has been subject to direct or adverse effect discrimination. The applicant bears the onus of establishing a prima facie case of discrimination, which, if established, shifts the evidentiary burden to the respondent to show that it accommodated the applicant to the point of undue hardship.
37Sections 17 of the Code provides a defence where a person is unable to perform the essential duties of an activity, e.g., employment, because of disability, subject to the duty to accommodate. The applicant, however, did not identify disability as a ground of discrimination in this Application. Section 24 of the Code identifies several specific exceptions regarding equal treatment in employment that are not engaged here. The applicant did not suggest that the respondent’s work practices and policies were overtly discriminatory; therefore, for the Application to succeed I must find that these policies and practices amount to constructive discrimination, which is prohibited under section 11 of the Code
38I have found that the respondent required its cleaners to clean floors and bathtubs by hand. This requirement is not discriminatory on its face, but had the effect of excluding pregnant employees who, like the applicant, become unable to work on their hands and knees as their pregnancies advance. Of course, the respondent’s position was that the applicant was unable to continue working because pregnancy prevented her from cleaning floors and bathrooms and ceased providing the applicant with work. In my view, this requirement clearly resulted in the exclusion of the applicant because of her pregnancy and placed a burden on her not imposed on employees who were not pregnant. Accordingly, I find that the applicant has established a prima facie case of discrimination.
39Having found that the requirement to clean floors and bathtubs to prima facie discriminatory, I must determine whether the policy is a bona fide requirement in the circumstances, pursuant to section 11(1)(a) of the Code. The Supreme Court of Canada set out the test for assessing whether a requirement is bona fide in Meoirin and which the Tribunal has adopted. Accordingly, I find the respondents must show the following in order to establish its floor cleaning practices are a bona fide requirement:
(1) that the respondents adopted the policy for a purpose rationally connected to the delivery of cleaning services;
(2) that the respondents adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that purpose; and
(3) that the standard is reasonably necessary to the accomplishment of this purpose. To show that the standard is reasonably necessary, the respondent must show that it could not accommodate the needs of the group of which the applicant is a member without undue hardship.
40I find it unnecessary to address the first two criteria because the respondent clearly did not demonstrate that it could not accommodate the needs of pregnant employees without undue hardship.
41In Meoirin, the Supreme Court of Canada also established that the duty to accommodate has both a procedural and a substantive component. To meet the procedural aspect of the duty to accommodate, a respondent must take adequate steps to explore what accommodation is needed, and to assess accommodation options. The substantive component of the analysis considers whether the accommodation offered was reasonable or whether a respondent was justified in not providing accommodation. The respondent bears the onus of demonstrating the considerations, assessments, and steps it undertook to accommodate the employee to the point of undue hardship.
42In Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 the Supreme Court of Canada described the accommodation process as a multi-party inquiry. An employee seeking accommodation is responsible for requesting accommodation and must facilitate the search for accommodation, which includes accepting reasonable proposals that would meet his or her needs. In this respect, the Court noted that an employee cannot expect a perfect solution, but accommodation that is reasonable in the circumstances. The employer is in the best position to determine how to provide accommodation without undue interference to its operations and is responsible for originating proposals to provide reasonable accommodation to the point of undue hardship. The Court also noted that the term “undue hardship” infers that some hardship is acceptable and that an employer must show actual and substantial interference with its operations to establish undue hardship. Minor inconvenience or interference does not suffice.
43The Tribunal has found that failing to meet the procedural requirements of the duty to accommodate is discriminatory in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation. See Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 (confirmed on appeal: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.)).
44In my view the respondent offered a reasonable accommodation to the applicant regarding her request on June 25, 2012. The applicant's request to change her work assignment was very last-minute and I am satisfied that it would have been difficult and highly impractical to rearrange work assignments with no advance notice on the morning of June 25, 2010. I do not need to determine whether this difficulty amounted to undue hardship because the respondent offered the applicant a reasonable accommodation regarding her duties on June 25, 2010. The applicant's concern was with cleaning the large floor areas on hands and knees and the need to physically get into the large bathtubs at the house in question. Ms. Jamieson relieved the applicant of these duties regarding this house, which her partner agreed to perform, and asked her to do her best to clean the house. I find this offer addressed the applicant's stated restrictions and was a reasonable accommodation in the circumstances. The applicant clearly felt that the only appropriate combination was to assign her average sized homes and she rejected this offer. An employee seeking accommodation is not entitled to the accommodation he or she prefers and is obliged to accept an offer of accommodation that meets the stipulated restrictions. Consequently I find that the applicant acted unreasonably in rejecting the offer of accommodation regarding her work on June 25, 2010.
45In this regard, I found the applicant's argument that the respondent’s offer affronted her dignity because it forced her partner to perform all of the less desirable work rather unconvincing. The applicant was fixated on reassignment of houses as the only appropriate solution and I find that she was not prepared to accept any other work modifications that day. Her partner also agreed to clean the floors and bathrooms at the house in question. This house was not typical of the houses they cleaned and the applicant at that time considered herself to be able to clean average sized homes; therefore, the extra work for her partner was limited. Ironically, the applicant's rejection of the accommodation offered caused her partner to perform all of the work at the house. Ultimately, the accommodation Ms. Jamieson offered was similar to that indicated in Dr. Gringnorten's letter, i.e., to relieve her of work outside of the pregnancy related limitations, not assignment to particular homes. In the end, I found the applicant’s stated concerns about dignity to be overblown regarding Ms. Jamieson’s offer of modified work on June 25, 2010.
46The applicant explicitly rejected the suggestion that she was quitting her employment and asked the respondent about future work. In these circumstances, the respondent was obliged to consider whether it could accommodate the applicant's needs going forward. Rather than doing so, the respondent determined the applicant was incapable of working and issued a ROE indicating she was absent from work because of illness or injury. The evidence was unequivocal that Ms. Jamieson gave no thought to accommodating the applicant's needs after June 25, 2010. Ms. Jamieson's persisted in this position after receiving Dr. Gringnorten's letter indicating the applicant was able to work with modifications similar to those offered on June 25, 2010 and after follow-up calls from the applicant indicating that she was willing to work.
47The respondent, of course, did not provide any accommodations to the applicant after June 25, 2010, but the evidence falls short of establishing that doing so would have amounted to undue hardship. In my view, it was not reasonable for the applicant to expect the respondent to change house assignments at the last minute on June 25, 2010. The respondent presented no evidence, however, that scheduling the applicant to avoid larger homes would have posed any difficulty going forward, once her needs were known. The evidence was that the applicant cleaned the large house occasionally and there is no evidence that cleaning other large houses was common. Accordingly, I find that eliminating large houses from the applicant’s schedule would not have presented significant difficulties and would not have amounted to undue hardship after June 25, 2010. Ms. Jamieson indicated that some customers accept only the cleaners regularly scheduled for them. Her evidence, however, did not establish that substituting the applicant for other cleaners would be necessary to accommodate her, and, in any event, Ms. Jamieson also stated that some clients might accept different cleaners. The applicant’s evidence, which was not challenged, was that changing partners was not unusual. Ms. Jamieson also said that clients were not involved in scheduling. I found Ms. Jamieson’s evidence on this point to be contradictory and self-serving. At the end of the day, it is clear that Ms. Jamieson did not consider the possibility and made no effort to determine whether changes to the schedule were required to accommodate the applicant or whether, if needed, clients would be willing to have the applicant clean their homes. In these circumstances, I find that there is no evidence to establish that the respondent would have experienced undue hardship to schedule the applicant to avoid larger homes.
48As noted, Dr. Gringnorten's letter indicated that the applicant was able to work, provided her work was modified to meet her restrictions. Dr. Gringnorten did not indicate that the applicant had to work in any particular size of home, although the applicant's testimony indicated that she interpreted – incorrectly in my view – the note to mean she was not to work in larger homes. The restrictions set out by Dr. Gringnorten were not materially different than those described by the applicant on June 25, 2010 for which Ms. Jamieson offered modified duties. Ms. Jamieson of course failed to consider offering modified duties after receiving Dr. Gringnorten's letter because she said the ROE precluded reconsideration of her decision – an explanation I have found to be without foundation. Ms. Jamieson did not explain why she could not or did not offer the applicant similar modifications as she offered on June 25, 2010, i.e., to relieve her of the duties outside of her restrictions. Having offered to modify the applicant's duties less than three weeks prior to receiving Dr. Gringnorten's letter, I cannot find that adjusting the applicant's duties would have amounted to undue hardship.
49The respondent was also obliged to consider whether it could modify the manner in which work was performed to meet the applicant’s restrictions. The applicant was required to clean floors by hand, which she was unable to do as her pregnancy progressed. The respondent did not consider whether the applicant could clean floors in another manner, e.g., with a mop. Given Ms. Jamieson’s evidence that mops could be used in some circumstances, there is no basis on which to conclude that allowing the applicant to use a mop would have amounted to undue hardship.
50I find that the respondent failed to meet both its procedural and substantive obligations to accommodate the applicant after June 25, 2010. In the circumstances, I find that the respondent effectively terminated the applicant's employment because of her pregnancy, in violation of section 5(1) of the Code. Having failed to establish that it could not accommodate the applicant without undue hardship the defense set out in section 11(1) of the Code is not available to the respondent.
Remedy
51It follows from these findings that the applicant is entitled to a remedy for breach of her Code rights. The Tribunal’s remedial authority is set out in section 45.2 of the Code as follows:
45.2 (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.
52An award of compensation for injury to dignity, feelings and self-respect recognizes the inherent value of the right to be free from discrimination and the experience of victimization. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON S.C.D.C.), the Divisional Court confirmed that the factors to be considered in setting the amount of damages include: humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment.
53In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated as follows regarding the jurisprudence dealing with awards for injury to dignity, feelings and self-respect, at paragraphs 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 at paras. 34-38.
Injury to Dignity, Feelings and Self-respect
54The applicant requested $20,000 for compensation for injury to dignity, feelings and self-respect. The applicant referred to several decisions in which the Tribunal awarded such damages where the applicant was terminated because of her pregnancy. See for example: Bickell v. The Country Grill, 2011 HRTO 1333 ($15,000.00 awarded), Graham v 3022366 Canada Ltd., 2011 HRTO 1470 ($20,000.00 awarded), Maciel v. Fashion Coiffures, 2009 HRTO 1804 ($15,000.00 awarded), and Purres v. London Athletic Club (South) Inc., 2012 HRTO 1758 ($10,000.00 awarded). I also considered Guay v. 1481979 Ontario, 2010 HRTO 1563 ($10,000 awarded) and Peart v. Distinct HealthCare Services Inc., 2013 HRTO 305 ($12,500.00 awarded), which are also cases in which the Tribunal found that the applicants were dismissed because they were pregnant.
55The respondent did not formally terminate the applicant's employment, but I find this to be a distinction without a difference. The applicant was effectively without active employment, which is objectively significant in itself. As set out at paragraph 23, above, the applicant testified about the impact this had on her. I accept without difficulty that the applicant was in a particularly vulnerable position, given that she was counting on her continued active employment, not only to provide for her normal expenses, but also to qualify for Employment Insurance benefits during her pregnancy/parental leave. I have no doubt that the period during which she was not working and was relying on her partner's income was stressful to her and the uncertainty of the situation cast a shadow on a time in her life that she had expected to enjoy. However, there was no evidence that the applicant experienced any distress requiring medical treatment. The applicant was able to return to her former employer, Superior Wire, relatively quickly and qualified for full Employment Insurance benefits during her pregnancy/parental leave. Accordingly, the applicant was subject to a relatively shorter duration of economic uncertainty and vulnerability arising from the respondent's discrimination and the respondent’s discrimination had less of an effect on the applicant than the effects experienced by the applicants in Graham, Bickell and Maciel, supra.
56Nonetheless, I accept that the applicant experienced a significant affront to her dignity and is entitled to a commensurate award of damages. In my view, damages of $13,000.00 are appropriate compensation in the circumstances of this case.
Wage Loss
57The applicant submitted that she was entitled to damages in respect of the wages she would have earned from June 25, 2010 until she was reemployed by Superior Wire. I agree. The applicant submitted that she averaged 25 hours per week and I find this to be a reasonable approximation on the evidence before me. There is no dispute that the applicant earned $11.75 an hour; therefore, I find her average weekly earnings were $293.75 (11.75 x 25 = 293.75). The applicant submitted that $1,962.00 represented the total wage loss between June 25, 2010 and August 2010. The applicant's calculation of this figure was frankly rather vague. This amount reflects approximately 33 five hour work days at $11.75 per hour or roughly 6.6 five day work weeks, which would have run to approximately August 13, 2010. The ROE provided by Superior Wire at the commencement of the applicant's pregnancy/parental leave, however, indicates that she commenced work on September 23, 2010. It is unclear why the applicant limited her claim for lost wages in this way, but I am satisfied that she would have continued to work for the respondent for at least this period, i.e., to August 13, 2010, had the respondent not ceased providing her with work contrary to the Code. I find therefore that the applicant is entitled to $1,962.00, less deductions required by law, as requested for damages for lost wages.
58I do not accept, however, that it would be appropriate to award damages to the applicant for her periods of unemployment or under-employment following the conclusion of her pregnancy/parental leave. The applicant mitigated her damages by securing new employment and, in my view, the respondent's responsibility for any wage-loss incurred by the applicant ended at that point. While I appreciate that the applicant had expected to continue her employment with respondent after her leave, the fact remains that she was no longer the respondent’s employee before she went on leave and after. The reason she was unemployed after her pregnancy/parental leave was that her employer, Superior Wire, was in financial difficulty and had no work for her. At that point, the respondent's connection to her employment issues was too remote to form a proper basis toward further damages to her for lost wages.
Public Interest Remedies
59The respondent submitted that it has had a human rights policy in place for approximately two years at the time of the hearing. The respondent did not present this policy in evidence, however, and the applicant submitted that the Tribunal should require the respondent to either establish that it has a comprehensive human rights policy or to draft such a policy if it does not. In the circumstances, I find that it is appropriate to ensure that the respondent has a human right policy that describes the respondent’s obligations under the Code, in particular with respect to the accommodation of pregnant employees. Accordingly, the respondent shall provide applicant’s counsel with a copy of its written human rights policy that is consistent with its obligations under the Code within 90 days of the date of this Decision.
60I also accept that applicant’s submission that the respondent lacked appreciation for its obligations as an employer under the Code. Accordingly, Jayce Jamieson, and all of the respondent’s employees who perform supervisory or management functions shall take the eLearning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca and confirm completion of same in writing to counsel for the applicant within 90 days of the date of this decision.
Order
61In the result, I order:
a. Within 45 days of the date of this Decision, the respondent shall pay the applicant $13,000.00 as monetary compensation for injury to dignity, feelings and self-respect;
b. Within 45 days of the date of this Decision, the respondent shall pay the applicant $1,962.00, less deductions required by law, as compensation for lost employment income;
c. The respondent shall pay pre-judgment interest on the amounts described in paragraphs a. and b., above, from June 25, 2010 to the date of this Decision, in accordance with section 128 of the Courts of Justice Act, R.S.O 1990, c. C.43. In the event that the respondent fails to make the payment described above within 45 days of the date of this Decision, the respondent shall pay post-judgment interest in accordance with section 129 the Courts of Justice Act, R.S.O 1990, c. C.43;
d. The respondent shall provide applicant’s counsel with a copy of its written human rights policy that is consistent with its obligations under the Code within 90 days of the date of this Decision; and,
e. Jayce Jamieson, and all of the respondent’s employees who perform supervisory or management functions shall take the eLearning module “Human Rights 101” that is found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca and confirm completion of same in writing to counsel for the applicant within 90 days of the date of this decision.
Dated at Toronto, this 28th day of March, 2013.
“signed by”
__________________________________
Douglas Sanderson Vice-chair