Rocha v. Pardons and Waivers of Canada, 2013 HRTO 537

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lina Rocha Applicant

-and-

Pardons and Waivers Canada, a division of 1339835 Ontario Limited Respondent

DECISION ON REMEDY

Adjudicator: Judith Keene Date: April 3, 2013 Citation: 2013 HRTO 537 Indexed as: Rocha v. Pardons and Waivers of Canada

WRITTEN SUBMISSIONS

Lina Rocha, Applicant Self-represented

Introduction

1This is a decision dealing with remedy in respect of an Application filed on July 13, 2011 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 age. In Decision 2012 HRTO 2234 (“the Liability Decision”), dated November 29, 2012, I found that the respondent had breached ss. 5 and 23(2) of the Code, and remained seized to hear further submissions in respect of remedy.

2The decision as to liability (2012 HRTO 2234) had been made without the participation of the respondent, who had communicated with the Tribunal by letter but did not participate in the Tribunal hearing.

3The evidence given by the applicant indicated that the applicant had responded to an employment advertisement that read as follows: “Looking for a personal assistant/receptionist for a sales associate at Pardons and Waivers of Canada. Basic admin duties, some accounting and answering the phone. $11/ hour, Approx. 30 hrs/week.” There was some e-mail communication between the applicant and the respondent including an interchange in which the applicant had indicated that she would work unpaid for a six-week period. One of the e-mails from the respondent stated “the six weeks would only start the first week of August, is that acceptable?”. The applicant replied that “the first week of August will be great”. In any event, the offer made by the respondent was withdrawn after the respondent asked for and received information about the applicant's age.

4In the Liability Decision, I found that the respondent had denied the applicant an opportunity for employment at least in part because of her age. The Liability Decision, which noted that the Tribunal might make an order that had not been requested by the applicant, and that the Tribunal would hear further submissions before finally determining the remedy, was sent to the respondent. To date there has been no further communication from the respondent.

REMEDY

5Section 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:

1. 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.
2. 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.
3. 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.

6The applicant indicated that she had undertaken a job skills upgrading course in “computer and customer service skills”, after a period of difficult personal circumstances that included the end of her marriage. She had wanted to get into the workforce and do something on her own; she was hoping for a job doing “office work and reception”. At the end of the course, but before they graduated, students were expected to find a six-week job “placement” in which they would work without pay. There was no further coursework beyond the six-week placement, but obtaining the placement was a requirement for graduating from the course. This was why the applicant’s e-mail communications with the respondent had stated that she would be willing to work “for 6 weeks free” before continuing on a paid basis.

7In respect of monetary compensation, the applicant requested $3,960. She included in her written submissions the assumptions upon which this calculation was based: that she would be paid $11 an hour for 30-hour week. She limited her request for compensation for lost wages to a three-month period.

8In listening to the applicant’s submissions in respect of remedy, I asked her how she came to that figure. She stated that she had gone to her instructor in the course, “very upset” because she had been refused the opportunity of a placement with the possibility of continued employment. Her instructor advised her to file an application with the Tribunal. The applicant had had “no idea” what to put in the relevant space on the Application; her instructor had suggested that she ask for three month’s wages.

9Subsection 45.2 (1)1 of the Code directs the Tribunal to consider what loss arose “out of the infringement” of the Code when considering the proper amount of monetary compensation. In Airport Taxicab (Malton) Assn. v. Piazza, (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.), the Ontario Court of Appeal at para. 45017, stated that the “purpose of the compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred”.

10On the facts of case, there is evidence that indicates that the respondent would have employed the applicant for at least the six-week period in which the applicant had indicated that she would work unpaid; one of the e-mails from the respondent submitted by the applicant stated “the six weeks would only start the first week of August, is that acceptable?”. The applicant replied that “the first week of August will be great”. Presumably, at some point during or after that period, the respondent would have decided whether to offer the applicant ongoing work. It is therefore fair to say that what the applicant lost here was an opportunity for further employment.

11In Ravi DeSouza v. 1469328 Ontario Inc., 2008 HRTO 23, the Tribunal reviewed two approaches to assessing compensation for lost opportunity, without endorsing either:

In cases of the loss of opportunity to be considered for employment, the Tribunal must compensate for the lost opportunity to compete for a position in a non-discriminatory fashion, while taking into account the fact that the applicant might not have obtained the position in any event (even absent any discrimination). In the federal jurisdiction, it has been suggested that if there is a serious possibility that the individual would have obtained the position, then there is loss that is capable of giving rise to an award of damages. The assessment of the amount of damages requires an assessment of the likelihood that the person would have obtained the position in any event (per Marceau J.A. in Canada (Attorney General) v. Morgan, 1991 CanLII 13184 (FCA), [1992] 2 F.C. 401 [21 C.H.R.R. D/87] (C.A.); Chopra v. Canada (Attorney General) (No. 2), 2007 FCA 268, [2007] F.C.J. No. 1134 (QL) [reported 61 C.H.R.R. D/248] (C.A.).

Another approach is to assess, on a balance of probabilities, whether the complainant would have obtained the position. If not, then no special damages would flow. If so, then lost wages resulting from the lost employment would flow.

12In Seguin v. Great Blue Heron Charity Casino, 2007 HRTO 33 at para. 65:

The test for assessing damages for lost opportunity was set out in Dantu v. North Vancouver District Fire Department (1986), 1986 CanLII 6503 (BC HRT), 8 C.H.R.R. D/3649, cited with approval by this Tribunal in McKinnon v. Ontario (Ministry of Correctional Services), [2007] O.H.R.T.D. No. 5. The party seeking damages must establish a reasonable possibility that they would have been hired. The greater the likelihood the party would have been hired, the higher the damage award.

In Seguin, the Tribunal assessed the evidence and awarded the applicant 50% of her lost wages.

13On the evidence in this case, there is only one indication that the applicant would not have continued in employment with the respondent: that is, the indication in the advertisement that “some accounting” was involved. The applicant is not a chartered accountant, but it would be overstating the available evidence to assume that this was one of the respondent’s requirements for the job. Some bookkeeping may have been involved for this position. However, there is no indication in the evidence as to precisely what might have been involved and with what degree of supervision, and no evidence that the applicant would have been incapable of dealing with the work required. On the evidence, I find that there is at least a 50% likelihood that the applicant would have continued in employment with the respondent beyond the six weeks of her initial unpaid placement. But for the “accounting” issue, she was otherwise qualified for the position, having just completed her course, and the six weeks that she would have worked for free would have given her “on the job” experience and knowledge. Counting from the first full week of August 2012, until December 3, 2012, when she found another job, and subtracting the six unpaid weeks, this would have amounted to eleven weeks of employment.

14The applicant is under a duty to mitigate her losses by making reasonable efforts to obtain suitable employment. The applicant is entitled to be compensated only for those losses that could not have been avoided, and the respondent has the onus of proving the applicant’s failure to mitigate. I asked if the applicant had made efforts to find other employment, and she has satisfied me that she did so. As noted above, she found a job offering hours and rate of pay similar to that offered by the respondent on December 3, 2012. She is still employed at that job.

15Subsection 45.2(1)1 also encompasses monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code.

16Quantifying intangible loss and distress is a difficult exercise. In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the principles on which compensation for injury to dignity, feelings and self-respect are awarded, and noted the importance of fairness to both applicants and respondents.

17The Tribunal assesses intangible loss and suffering with a degree of objectivity in assessing the amount of compensation; Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee”. See, ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.).

18The concepts of “dignity” and “self-respect”, while certainly including factors that are subjective in nature, import considerations that are broader than the individual’s reaction to how he or she was treated. Dignity and self-respect can be diminished by how one is perceived and treated by others, as well as how one feels about that treatment. It is true, for example, that an individual who has a disability that affects communication may be unable to convey outrage at an affront to his or her dignity, and an individual who is consistently oppressed may grow to regard such treatment as “normal”. That cannot prevent this Tribunal from recognising an affront to dignity, nor absolve it from attempting to quantify a compensatory award according to its obligations under section 45.2(1) and the policies expressed in the Preamble to the Code.

19A compensatory order is not a punitive order, but consideration of the actions of the respondent cannot be avoided in determining whether dignity was violated and how. As Professor Denise Réaume notes in her wide-ranging discussion of the concept of human dignity, “violating dignity involves conveying the message that some are of lesser worth than others” (Denise G. Réaume, “Discrimination and Dignity” in Faraday, Denike and Stephenson eds., Making Equality Rights Real (Toronto, Irwin Law Inc., 2006).

20In this case, the arbitrary nature of the decision to deny employment without even giving the individual an opportunity to show that she could do the job is a factor that raises both objective and subjective considerations. Objectively, a decision of this nature is manifestly unfair; even an employer with no detailed knowledge of the requirements of human rights legislation should be able to see that it is unfair. The provisions of the Code that deal with employment application forms and initial job interviews address an area in which it is very easy for employers covertly to discriminate; when an infringement of this nature is brought to light, the educative and preventive purposes of the Code suggest a compensatory monetary award that reflects the seriousness of the respondent's action.

21The impact of the discriminatory action on the individual applicant’s subjective experience also has considerable weight in arriving at a compensatory order, although the impact may be difficult to assess, both because of individual differences and because of ways of self-expression, some of which may be linked to personal characteristics protected under the Code. However, the Code directs that the Tribunal attempt to assess the applicant’s subjective experience. In Sanford v. Koop, 2005 HRTO 53, the Tribunal summarized the following factors (not a closed list) frequently used in assessing the appropriate quantum of general damages for the violation of the right to be free from discrimination:

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

22In her Application, the applicant states that after this incident she felt “stressed” and “depressed, and started to think that it would be hard to find a job with my age… that no one would want to hire me”. In the course of giving her oral submissions, she said “I never like causing trouble, but it really hit me”. She wanted to do office work and had thought that receptionist work was something she at which she could do well, but in searching for work after the incident that gave rise to this Application, she was afraid that she would only be hired where “people couldn't see me”.

23She stated that she saw her doctor after this incident. She was prescribed anti-anxiety medication, which she took for a brief time before discontinuing it because she did not want to rely too much on medication.

24Reviewing the factors noted above against the facts as accepted by the respondent, it is clear that this was not an instance of repeated or lengthy “offensive treatment”. On the other hand, as an unemployed person who had tried to upgrade her skills to obtain employment, this summary rejection based on age was clearly discouraging, humiliating and hurtful to the applicant, as well as damaging to her dignity, self-respect and self-confidence. In the circumstances of this case, I find that an appropriate compensatory reorder for injury to dignity, feelings and self-respect is $15,000.

ORDER

25The Tribunal makes the following order:

a) Within 30 days of this Decision, the respondent shall pay $1,815.00 to the applicant for loss of opportunity for employment;

b) Within 30 days of this Decision, the respondent shall pay $15,000 to the applicant for violation of her inherent right to be free from discrimination, and for injury to her dignity. This amount is an award of monetary compensation in the nature of general damages for injury to dignity, feelings and self-respect;

c) The respondent shall pay the applicant pre-judgment interest in accordance with the Courts of Justice Act, (1.3%) on the amount set out in paragraph (a), above, from September 12, 2011;

d) The respondent shall pay the applicant pre-judgment interest in accordance with the Courts of Justice Act, (1.3%) on the amount set out in paragraph (b), above, from July 13, 2011; and

e) In the event that the respondent fails to make the payments described in paragraphs (a) through (d) above within 30 days of the date of this Decision, the respondent shall pay post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, (3%) from the date that is 30 days after the date of this Decision.