Qiting Huang v. High Life Heating, Air Conditioning & Security Inc. and Yorktech Supply Ltd., 2014 HRTO 1356

Human Rights Tribunal of Ontario

B E T W E E N:

Qiting Huang Applicant

-and-

High Life Heating, Air Conditioning & Security Inc. and Yorktech Supply Ltd. Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: September 12, 2014

Citation: 2014 HRTO 1356

Indexed as: Huang v. High Life Heating, Air Conditioning & Security Inc.

APPEARANCES

Qiting Huang, Applicant

Kate Sellar, Counsel

High Life Heating, Air Conditioning & Security Inc. and Yorktech Supply Ltd., Respondent(s)

Ken MacDonald, Counsel

1This is an Application filed under s. 34 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

2Much of the factual background in this matter is not in dispute. The applicant began working as a receptionist for the respondent High Life Heating, Air Conditioning & Security Inc. ("High Life") in July 2010. The applicant's wage was $11 per hour and her evidence was that she typically worked eight hours a day, five days a week, although her hours fluctuated depending on how busy High Life was. The applicant went on pregnancy/parental leave on March 4, 2011 and returned to work following the leave on or about February 27, 2012. The applicant continued working for High Life until mid-August 2012 when she was "transferred" to the respondent Yorktech Supply Ltd. ("Yorktech"). High Life and Yorktech are separate corporate entities, but are owned and operated by the same people, who are family members. The business of High Life is to install and service air-conditioning systems and furnaces, while Yorktech operates a warehouse and was described as a "wholesale business", apparently focused on selling parts.

3At or about the time the applicant transferred to Yorktech, two other employees began working there. The applicant informed Sandra Lee, one of the managers, that she was pregnant on Wednesday, August 29, 2012. By all accounts, the reaction to the applicant's news was positive and congratulatory. The applicant had a medical appointment related to her pregnancy the next day, Thursday, August 30, 2012 (Thursdays also being a day she normally did not work). Ms. Lee advised the applicant by e-mail that she did not need to work on Friday, August 31, 2012. The applicant returned to work on Tuesday, September 4, 2012 (Monday, September 3, 2012 was Labour Day). There is no dispute that in the afternoon of Wednesday, September 5, 2012, Alice Yueng, another manager, informed the applicant of the termination of her employment.

4The applicant attributes the respondents' decision to dismiss her to her pregnancy. The respondents deny this and state that the applicant's dismissal resulted from business conditions and also their perception that the applicant was likely to leave of her own accord for another job because they found her updated resume on a printer and/or and they understood her to be pursuing a career as a real estate agent.

The Hearing

5The Tribunal heard this matter over two days: November 1, 2013 and January 22, 2014. The applicant and Ms. Lee testified. The applicant produced a book of documents with 12 tabs and the respondents tendered four documents. At the completion of Ms. Lee’s evidence in chief on the first day of hearing, the applicant submitted, correctly, that her testimony had included evidence not included in the Response and the respondents had relied on the Response as a summary of her evidence rather than file a witness statement pursuant to Rule 17.2 of the Tribunal’s Rules of Procedure. The applicant submitted that, as a result, she had been denied the opportunity to properly prepare for cross-examination of Ms. Lee and requested an adjournment to allow counsel to prepare. I agreed with the applicant’s position and granted the request. Applicant’s counsel cross-examined Ms. Lee on the second day of hearing.

Evidence

6The applicant stated that her duties as a receptionist for High Life entailed answering phones, scheduling service jobs and miscellaneous duties such as placing advertisements on the Internet. The applicant stated that at Yorktech she worked at the "counter" serving customers, filed accounts payable and accounts receivable documents and arranged parts. The applicant's evidence was that her hours of work at Yorktech were eight hours a day, four days per week and that she usually took Thursdays off. Her wage remained at $11 per hour. The applicant stated that she was never given an explanation for the transfer to Yorktech in August 2012.

7The applicant stated that the respondents did not transfer anyone else from High Life to Yorktech. The applicant stated that two "trainees" were hired after she transferred to Yorktech who performed the same duties as she did. There was no dispute that employees recorded their own hours of work on a calendar, which was submitted for payment. The respondents adduced the schedule of the applicant’s hours of work at Yorktech in August 2012, which indicates her first day of work was August 17, 2012.

8As noted above, the applicant informed Ms. Lee of her pregnancy on August 29, 2012. According to the applicant, Ms. Lee was excited and happy for her and asked her if she was comfortable at work. The applicant stated that she advised Ms. Lee that she was comfortable as long as she did not have to lift heavy parts and that Ms. Lee assured her that the men would perform any heavy lifting. The applicant attended a doctor’s appointment the next day and she received a text message from Ms. Lee inquired about it at 5:30 p.m. the text reads as follows:

Hey! How did it go??? Hope u (sic) have good news!! Don’t worry about working tomorrow. We only had one girl today and it was not busy at all. So u don’t need to come in tomorrow (Friday)

Take rest for tomorrow and well (sic) see you on Tuesday!! Have a great long weekend!!

The applicant replied to the text, but she did not include the entire message. The partial reply message reads as follows:

Thx (sic) Sandra. My fam (sic) doc (sic) in on vacation for 2 weeks. Not able to get him referred me to the…

9The applicant returned to work on Tuesday, September 4, 2012. The applicant's evidence was that on Wednesday, September 5, 2012, Alice Yeung spoke to her in the morning and congratulated her on her pregnancy. Later in the day, Ms. Yeung called the applicant into her office for a meeting. According to the applicant, Ms. Yeung informed the applicant that the respondents had a family meeting during the long weekend and decided to terminate the applicant's employment. The applicant stated that she asked for an explanation. Ms. Yeung replied to the effect that they had no choice and that it was the company’s decision and that she could do nothing to change the decision. The applicant's evidence was that she asked Ms. Yeung whether there had been any issues with her performance and whether her pregnancy was the reason for the termination of her employment. The applicant stated that Ms. Yeung confirmed that there were no issues with the applicant's performance and denied that the applicant's pregnancy was the reason for the decision. Rather, according to the applicant, the issue was that the applicant did not work on Thursdays. The applicant's evidence was that she advised Ms. Yeung that she was flexible and could work whenever the respondents needed, but to no avail. The applicant stated that the two new employees hired at Yorktech were not dismissed.

10The applicant's evidence was that she had a second job, working at night, for Tasty Enterprises ("Tasty"). The applicant stated that she worked 40 hours per week for Tasty and was paid $2,000.00 per month, paid semi-weekly. The applicant submitted a payroll record from Tasty recording her gross pay and statutory deductions from June 15, 2012 (the first payday) to December 31, 2012. The record indicates that the first pay period on the report was June 4 to 15, 2012, and the final period ended on December 28, 2012. The record indicates that the applicant received gross pay of $1,100.00 every two weeks and that her gross pay for the seven-month period was $16,390.00, i.e., about $2,341.00 per month and about $28,000.00 on an annualized basis.

11The applicant stated that she intended to work until she had accumulated enough hours of work to qualify for full Employment Insurance benefits during her pregnancy/parental leave. Her plan had been to commence maternity leave in March 2013, but in fact began her leave from Tasty sometime in February 2013. Her child was born on April 24, 2013. The applicant stated that she planned to return to work following her leave, but also wanted to work part-time as a real estate agent. The applicant stated that in the summer of 2012 she had three real estate courses remaining to become a real estate agent. The applicant stated that she took one of the courses in the summer of 2012 when it was not busy and had received High Life's permission to do so. The applicant did not recall discussions with the respondents regarding her real estate career, but stated that if they had declined permission she would not have taken the course.

12The applicant stated that the termination of her employment made her very upset and caused her a great deal of stress. The applicant stated that she found the experience particularly painful because she thought that the respondents’ personnel were her friends. The applicant stated that the loss of income from her employment with the respondents caused serious financial difficulties, as she and her husband have a mortgage and also support her husband's parents. The applicant stated that her husband works, but only on a part-time basis. The applicant’s evidence was that the family's income was $35,000 annually.

13The applicant stated that she sent out her resume as often as possible from September 5, 2012 the end of 2012, when she stopped looking for work, and she continued working evenings at Tasty. The applicant stated that she applied for "more than ten" positions in that time and interviewed for two jobs, but did not perform well in interviews because she was not sleeping or eating. The applicant adduced job postings and e-mail cover letters as evidence of her job search efforts, which indicate that she applied for sixteen positions. The documents indicate that the applicant applied for eleven of the sixteen positions in September 2012 and that she applied for eight of those eleven on the same day. Of the remaining five, one job posting is dated August 10, 2012; another, undated, is for financial planning position for which the applicant does not appear to have any qualifications; two postings are dated in October 2012 and, finally, she applied for call center position in late January 2013. The applicant explained that she ceased looking for work at the end of 2012 because she was showing and that she did not believe it was fair to work for an employer for only a few months before going on leave.

14In cross-examination, the applicant agreed that she did not work on Thursdays and Saturdays in 2012. The applicant stated that she arranged not to work Thursdays, but had not said anything about Saturdays. The applicant stated that she could have worked those days if needed. The applicant’s evidence was that she worked at Tasty on Saturdays and whenever she was not working for High Life.

15The applicant agreed that $11 per hour was not the wage she asked for when she started at High Life and that she asked for more than $12 per hour. Initially, the applicant agreed that she made plans to leave High Life for a higher paying job, but then stated that she did not plan to do so. When asked if she was looking for another office job in the spring and summer of 2012, the applicant stated that she did not recall.

16Counsel for the respondent showed the applicant a copy of her resume which she agreed included her employment with High Life under the heading "Employment Experience". The applicant agreed that the resume was created after she began working for High Life, but did not recall when it was created or why it was prepared. The applicant agreed that it was "possible" that she had printed her resume at High Life. When counsel asked her if she was suggesting that someone else printed the resume she stated that she "didn't know". The applicant also responded that she did not know in response to a question about how the respondents obtained her resume, but later allowed that it was possible that they'd found a copy printed by her at High Life.

17The applicant agreed that she was studying to become a real estate agent in the summer of 2012 and that she took time off to attend a real estate course in July 2012. She agreed that the summer is the high season for High Life's business, but stated that it was not always busy. The applicant did not agree that High Life did not wish to give her time off to take the course, and stated that they would have said so in that case. The applicant agreed that she arranged for another employee to cover her absence while taking the course. When asked if High Life initially denied her request for time off the applicant stated that she, her manager and the other employee negotiated the arrangement.

18The applicant agreed that one of the two other employees who started at Yorktech at about the same time as she did could drive a forklift and did deliveries, which she did not do. The applicant stated that she did not know if the two "trainees" had been hired to replace employees who quit.

19The applicant acknowledged that she did not seek more hours of work from Tasty after the respondents dismissed her. In re-examination, she explained that she did not think it was fair to expect Tasty cover her loss and she also did not think that they had more work to give her. In cross-examination, the applicant stated that her husband did part-time delivery work, but she was unable to state, even approximately, how much he earned in 2012.

20Ms. Lee testified for the respondents. She confirmed that the respondents are owned by the same people. Ms. Lee stated that the respondents are family owned and operated businesses and that she is a manager for both respondents. In cross-examination, Ms. Lee testified that the managers and owners work in both companies, as needed. Ms. Lee’s evidence in cross-examination was also that she reported to Rosanna and Steve Yeung, who are the respondents’ owners and also her mother and father-in-law, respectively.

21Ms. Lee’s evidence was that she hired the applicant to be a receptionist for High Life in July 2010. She described the applicant's duties as answering phones, booking appointments, data entry, and periodic research. At Yorktech, the applicant performed counter sales, checked out payments and did some inventory counts. Ms. Lee stated that the applicant was competent and got on well with her coworkers.

22Ms. Lee testified that prior to 2012, the government offered rebates for homeowners to upgrade furnaces and air conditioning systems, which resulted in increased demand for High Life. In 2012, these incentives were reduced and the market had become more competitive and High Life’s business declined. Ms. Lee stated that by mid-2012, High Life had reduced its installation crews from 10 to 6. Ms. Lee also stated that, before 2012, High Life employed 10 full-time salespeople, but during 2012 reduced the number of salespeople to two full-time and two part-time employees. Ms. Lee's evidence was that High Life had employed two receptionists, the applicant and a Ms. Chu, but no longer had enough work for both of them. Ms. Lee stated that the decision was taken to keep Ms. Chu because she had an engineering background and was able to do rebates, warrantee and inventory work, as well as perform reception duties. According to Ms. Lee, the applicant did not have the background or training to perform rebate and warranty work. Ms. Lee also stated that the applicant had stated that she could not work on Thursdays or weekends and no other full-time employee had limited their availability to work in this manner. Ms. Lee referred to the timesheets completed by the applicant, which indicated that she did not work on Thursdays or weekends.

23Ms. Lee's evidence was that she, Alice Yeung and Rosanna Yeung (an owner and Ms. Lee's mother-in-law) met in early August 2012 before Rosanna Yeung left for a business trip scheduled in mid-August and before the applicant disclosed that she was pregnant. Ms. Lee stated that at that point High Life's business was down about 30%. As a result, the decision was taken to lay off the applicant for economic reasons and other issues. In that regard, Ms. Lee stated that sometime in June or July 2012 she found the applicant's revised resume on High Life's office printer. The stated "Career Profile" indicated that the applicant was interested in finding a position as an administrative assistant. Ms. Lee also stated that the applicant's request for time off to take a real estate course in July 2012 was not well received. Ms. Lee's evidence was that the summer is the busy season for High Life and its policy is not to have employees take extended leave at this time period. In this case, however, the applicant was able to get a part-time employee to cover her absence. Ms. Lee stated that the applicant asked for further time off to take another real estate course when she returned in August. Ms. Lee stated that the discovery of the applicant's resume, her request for time off and her unavailability were also considered during the meeting. According to Ms. Lee, they did not decide when the applicant would be dismissed. Rather, the immediate decision was to transfer the applicant to Yorktech because its tax year-end was in September and it needed to finish inventory. Therefore, the applicant was transferred to Yorktech to count small items and help with counter sales. Ms. Lee noted that High Life continued to pay the applicant's wages as it was not expected that she would be at Yorktech for long, although there was no definitive date for when her employment would end. Ms. Lee stated that the applicant's pregnancy was not a factor in the decision to terminate the applicant's employment. Ms. Lee stated that transferring the applicant was intended to assist Yorktech and deferred termination of the applicant's employment.

24Ms. Lee's evidence was that Yorktech has three parts to its business: the warehouse, the counter and accounting. Ms. Lee stated that two counter employees quit during the summer of 2012, the second resignation coming in or about August 18, 2012. Ms. Lee stated that Yorktech replaced only one of the vacancies for strictly counter work, hiring an employee named Jacqueline on August 16 or 17, 2012. Ms. Lee's evidence was that Yorktech filled the second vacancy with a candidate, Dean, who could do more strenuous work and could operate a forklift, as well as assist with counter work. Ms.Lee's evidence was that Yorktech also hired a sheet metal worker and that High Life hired no one in the summer of 2012. Ms. Lee stated that Jacqueline also had some accounting skills and could track accounts payable/receivable and prepaid orders. Jacqueline also had a more flexible schedule and could work Monday to Saturday. According to Ms. Lee, availability for Saturday work was important and she observed Jacqueline to have superior counter skills than the applicant.

25In cross-examination, Ms. Lee stated that the first resignation at Yorktech came in early August 2012 and the second on August 18, 2012. Ms. Lee stated that she interviewed Jacqueline in early August, before the decision to transfer the applicant was taken. Ms. Lee agreed that the applicant was not considered for either position.

26Ms. Lee stated that it was possible that someone had asked the applicant if she intended to work full-time in real estate after returning from leave, as there had been discussions on the subject. Ms. Lee's evidence was that the applicant had stated her desire to pursue a career in real estate. Ms. Lee agreed that the applicant did not say that she would quit her job to do real estate, but in Ms. Lee's view this was implied. While Ms. Lee had no evidence to contradict the applicant's testimony that she planned to work in real estate part-time after her leave, Ms. Lee's evidence was that she did doubt the applicant's intentions and commitment given the discovery of her resume and taking time off in the business in the busy season to take a real estate course. Ms. Lee agreed that part of the reason for dismissing the applicant was the belief that she would leave the respondent in any event.

27Also in cross-examination, Ms. Lee stated that she believed that in August 2012 she had asked the applicant about working on Saturdays when Yorktech was understaffed. When asked whether she asked the applicant to work every Thursday and Saturday or a particular Saturday, Ms. Lee stated that she asked the applicant if she could increase her hours. When the applicant said no, Ms. Lee asked the applicant if she could work more hours on a piecemeal or occasional basis, which Ms. Lee stated the applicant also declined. Later in her cross-examination, Ms. Lee stated that she asked the applicant to increase her hours when she needed her to come on a particular Saturday in mid-August 2012 when they were short staffed. Ms. Lee stated that she was aware that the applicant stated that she informed Alice Yeung that she was willing to increase her availability to work during the termination meeting. Ms. Lee evidence was that this did not change the decision to dismiss the applicant because other employees had already been hired at Yorktech and these employees had superior skills than the applicant.

28Ms. Lee agreed that she was not involved in the decision to choose September 5, 2012 as the date the applicant would be dismissed and did not know who made that decision. Ms. Lee's evidence was that she did not believe the determination of the applicant's last day of work was made after she revealed her pregnancy.

Analysis and Decision

29The 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 respondents terminated the applicant’s employment 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. Direct evidence of discrimination is also unnecessary, as discrimination will more often be proven by circumstantial evidence and inference. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.

30The 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.

31In assessing credibility and reliability, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

(…) 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.

32I am also mindful of the Ontario Court of Appeal’s comments in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

33The timing with respect to an applicant disclosing that she is pregnant is often an important factor in assessing allegations of discrimination with respect to sex and pregnancy, which may allow the Tribunal to infer that the reason for the termination was related to pregnancy. In this case, the key date is August 29, 2012, the date on which the applicant informed the respondents, through Ms. Lee, that she was pregnant. There is no dispute that by August 29, 2012 the applicant had been transferred to Yorktech from High Life and that Yorktech had hired two other employees. Consequently, while the applicant, particularly in the questions counsel asked in cross-examination, suggested that the respondents could have acted differently, e.g., by giving the applicant notice of termination rather than assign her to Yorktech, making decisions based on seniority or by revisiting the applicant’s availability to work on Thursdays and Saturdays in light of the respondents’ economic circumstances, there is no evidence linking the respondents' decisions prior to August 29, 2012 to the applicant's pregnancy.

Non-discriminatory Factors

34I accept that there were several non-discriminatory factors that contributed to the decision by the respondents to terminate the applicant’s employment.

35Ms. Lee's evidence regarding the respondents' economic circumstances was uncontradicted and her testimony on this point was not shaken in cross-examination. She holds a managerial position with both respondents and provided fairly detailed evidence about the downturn in High Life's business due to reduced government incentives and increased competition and I found Ms. Lee's evidence on this point to be credible. This downturn resulted in reductions in staff across High Life's organization, including reception. Consequently, I accept that High Life was experiencing an economic downturn in the summer of 2012 and that there was insufficient work to continue employing the applicant as a receptionist. In my view, transferring the applicant to work at Yorktech is consistent with a lack of work at High Life. While I agree with the applicant that business records would have bolstered the respondents' evidence on this issue, the applicant provided no basis for questioning it. Moreover, the applicant did not request disclosure of any such business records either before the hearing or between hearing dates, i.e., after Ms. Lee’s testimony in-chief.

36I further find that, on a balance of probabilities, the respondents would have terminated the applicant’s employment regardless of her pregnancy after the inventory count at Yorktech was complete. The applicant's transfer roughly coincided with the hiring of two new employees at Yorktech to fill vacancies and occurred before she revealed her pregnancy. Ms. Lee's consistent evidence was that the applicant was only at Yorktech temporarily and, in any event, the new employees had skills the applicant did not possess. The evidence was that the respondents did not consider the applicant for these vacancies, which in my view is consistent with the respondents' position that the applicant would not be at Yorktech for the long-term. The fact that High Life continued to pay the applicant and the fact that she was not replaced also supports an inference that the applicant's work at Yorktech was intended to be temporary. In the circumstances, I find that is more probable than not that the applicant would have lost her employment with the respondents regardless of her pregnancy.

37I also find that the respondents' belief that the applicant planned to leave their employ was a factor in their decision to select the applicant for dismissal. The respondents found her updated resume on one of High Life's printers and concluded the applicant was looking for another job. In my view, the applicant's testimony about her résumé supports that conclusion. The applicant's evidence regarding her résumé in cross-examination was inconsistent and extremely evasive. Her evidence to the effect that she could not recall if she was looking for another job in the summer of 2012, could not recall why she prepared her resume and did not know how the respondents obtained a copy of it was simply not credible. In the circumstances, I find it more likely than not that the applicant was looking for another job in the summer of 2012 and that this contributed to the decision by the respondents to terminate her employment.

38I find that the respondents’ displeasure with the applicant's decision to take time off for a real estate course in July 2012 was overstated. The respondents’ own evidence was that High Life’s business was so slow that they did not need the applicant and there is no dispute that she arranged for coverage. As the applicant stated, the respondents could have declined the request if her absence would have been a problem. However, I find that the respondents concluded that the applicant's long-term plans were not with them but to pursue a career in real estate. The evidence indicates that this was an assumption on their part and the applicant's evidence was that she intended to work part-time as a real estate agent. However, the applicant also worked 40 hours per week for Tasty, and it begs the question of how the applicant could simultaneously work for the respondents and work in real estate.

39There was no dispute that the applicant did not work on Thursdays and week-ends and Ms. Lee’s uncontradicted evidence was that the applicant was the only full-time employee whose availability to work was restricted in this way. In my view, it is logical for an employer to consider the availability to work when making staffing decisions and I find it more likely than not that the respondents considered the applicant’s relative unavailability when considering whether to continue the applicant’s employment. In coming to that conclusion, I do not accept Ms. Lee’s evidence that she asked the applicant to increase her availability in August 2012. I found her evidence on this point both vague and contradictory, as at one point her evidence was that she asked the applicant to increase her availability generally and at another stated that she asked her to come in on a particular Saturday. This evidence arose in cross-examination and was not put to the applicant. The applicant’s evidence was that the first indication she received that her availability was an issue was when she was dismissed. In these circumstances, I am not prepared to rely on Ms. Lee’s evidence on this issue.

40There was no evidence that the respondents ever directly confronted the applicant about her intentions and I am unable to conclude that the respondents ever asked her about her availability. The applicant submitted that it would have been prudent and fairer for the respondents to canvass these issues with the applicant before deciding to terminate her employment. I agree. However, the Tribunal’s role is not to evaluate the quality or fairness of the respondents’ decision regarding the applicant’s employment, but to assess whether it was contrary to the Code. In my view, the evidence supports the inference that the perception that the applicant would leave the respondents and her availability were non-discriminatory factors that led, along with the downturn in business and other staffing decisions, to the decision to dismiss her.

Ultimate Decision to Dismiss on September 5 Unexplained

41Ms. Lee was the respondents’ only witness. Her evidence provided an explanation for why and when the respondents’ transferred the applicant to Yorktech. Ms. Lee’s evidence was also that the decision to eventually dismiss the applicant was taken along with the decision to transfer her to Yorktech, but that no decision was taken regarding when the dismissal would actually occur. The evidence was that the applicant would assist Yorktech in its year end process, e.g., inventory, but Ms. Lee provided no evidence about the expected duration of this process other than to say that the year-end was in September. Ms. Lee gave no evidence indicating that the year-end process was wrapping up such that the applicant’s assistance was no longer required. The applicant put some emphasis on the text message Ms. Lee sent to the applicant on August 30, 2012. I agree that Ms. Lee’s decision to give the applicant the next day off was at least partly because of her pregnancy, but it also seems clear that Ms. Lee expected the applicant to continue working the next week. Ultimately, I find that nothing turns on this message because it is clear that Ms. Lee took no part in the decision to dismiss the applicant on September 5, 2012.

42The applicant disclosed her pregnancy on August 29, 2012. She did not work on August 30 or 31, 2012 and returned to work on September 4, 2012 after the Labour Day long week-end. The respondents dismissed her the next day, September 5, 2012. Ms. Lee had no role in choosing September 5, 2012 as the dismissal date and Alice Yeung, who executed the decision, did not testify. As a result, the respondents adduced no evidence about the ultimate decision to dismiss the applicant. Accordingly, even if I accept Ms. Lee’s evidence that the decision, in general terms, to dismiss the applicant was taken prior to the revelation of her pregnancy, there is absolutely no evidence that explains the timing of this decision. In light of the timing of the decision and the respondents’ failure to explain it, I find it more probable than not that the applicant’s pregnancy was a factor in the respondents’ decision to dismiss her on September 5, 2012.

Remedy

43It follows from these findings that the applicant is entitled to a remedy for breach of her Code rights. Following the hearing, I directed the parties to make submissions regarding whether the respondents should jointly and severally liable for any remedies I may order.

44The applicant submitted that liability should be joint and several. The applicant submitted that the respondents filed a joint response and were represented by the same counsel. The applicant submitted that Yorktech did not object to being named in the Application at any point. The applicant submitted that the evidence was that the respondents shared owners and managers and were closely linked such that it is appropriate to find them jointly and severally liable for any remedy.

45The respondent submitted that joint and several liability is not appropriate and that High Life should be liable for any remedy. The respondents submitted that the applicant worked for Yorktech on a strictly temporary basis and that High Life continued to pay the applicant’s wages. The respondents submitted that the managers involved in the decision to dismiss the applicant were her supervisors at High Life. The respondent submitted that Yorktech’s role in the matter was very limited.

46Although the respondents are separate corporate entities, I find that they were closely integrated operations, given that the owners and managers of both businesses were the same people. The respondent is correct that the management personnel who decided to transfer the applicant to Yorktech were her supervisors at High Life, but, given the sharing of managers between the respondent, they were also her supervisors at Yorktech. The integrated nature of the respondents’ managerial structure and the decision to transfer the applicant from one to the other indicates that the respondents acted as a single organization insofar as personnel were concerned. Neither respondent has objected to being included in this Application and they have acted jointly in these proceedings. In these circumstances, I find that the respondents are jointly and severally liable for the remedies I have ordered, as set out below.

47The 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:

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.

48An 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.

49In 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.

Wage Loss

50The applicant submitted that it was appropriate for the Tribunal award her damages in respect of wage loss from the date of her dismissal to the date on which she commenced maternity leave, sometime in February 2013, despite the fact that she ceased looking for work at the end of 2012. However, I have already found that it is more likely than not that the respondents would have terminated her employment regardless of her pregnancy after the completion of the inventory process. I find it likely that the applicant would have continued to work until the inventory count was complete had she not disclosed her pregnancy. The evidence indicates that this would have been a short period of time. The only evidence related to the duration of the inventory process was that Yorktech’s year end was in September. I infer, based on this evidence, that the inventory process would have concluded at the end of September, 2012. Accordingly, the applicant is entitled to the in respect of the wages she would have earned from September 5, 2012 to September 30, 2012. The evidence was that the applicant worked four days per week and did not work on Thursdays or Saturdays. Following a review of a 2012 calendar, I find that the applicant would have worked 13 days between September 5, 2012 and September 30, 2012. The evidence was that the applicant earned $11.00 per hour and worked eight hours per day. I find therefore that the applicant would have earned $1,144.00 (13 x 8 x 11 = $1,144.00), less deductions required by law, for damages for lost wages.

51I am not satisfied that the applicant made adequate efforts to mitigate her damages after September 2012. The applicant's evidence was that she sent out "more than ten" job applications, which generated two job interviews after the termination of her employment on September 5, 2012. The evidence was that the applicant applied for sixteen positions, of which, eleven applications were made in September 2012 and that she applied for eight of those eleven on the same day. One of the job posting is dated in August 2012; therefore, it appears that the applicant applied for at most four positions (one of the postings being undated) after September. In other words, the applicant's own evidence indicates that she made almost no effort to find new employment after September 2012. The applicant stated that the stress she was experiencing caused her to perform poorly in interviews, but presented no evidence that would explain her limited job search efforts. Consequently, I am not prepared to award her damages in respect of wage loss after September 30, 2012.

52The applicant submitted, and I agree, that the premature termination of the applicant’s employment caused a reduction to the Employment Insurance benefits she received during her pregnancy and parental leave. The applicant submitted that the Tribunal should require the respondents to re-issue the applicant’s Record of Employment to reflect the income she would have received but for the discriminatory termination of her employment, which the approach the Tribunal adopted in Purres v. London Athletic Club (South) Inc., 2012 HRTO 1758. The applicant could then use the revised Record of Employment to request a reassessment of her benefit level from the Employment Insurance programme. I find that is an appropriate manner in which to address this issue and I will order the respondent to reissue the Record of Employment that was issued to the applicant at the time of the termination of her employment, revised to reflect earnings as if she had worked until the end of September 2012, pursuant to the order in paragraph 50 above.

Damages for Injury to Dignity, Feelings and Self-Respect

53The applicant requested $18,000 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), Charbonneau v. Atelier Salon & Spa 2010 HRTO 1736 ($10,000.00 awarded), Dodds v. 2008573 Ontario Inc. (Sharks Sports Pub), 2007 HRTO 17 ($10,000.00 awarded), Graham v 3022366 Canada Ltd., 2011 HRTO 1470 ($20,000.00 awarded), Maciel v. Fashion Coiffures, 2009 HRTO 1804 ($15,000.00 awarded), Purres, above, ($10,000.00 awarded), Guay v. 1481979 Ontario, 2010 HRTO 1563 ($10,000 awarded) and Osvald v. Videocomm Technologies, 2010 HRTO 770 ($10,000.00 awarded).

54I accept that the applicant was in a vulnerable position, given that she was relying on her continued employment for her normal expenses and to qualify for Employment Insurance benefits during her pregnancy/parental leave. I have no doubt that the period during which she was not working for the respondent was stressful to her. However, there was no evidence that the applicant experienced any distress requiring medical treatment. The applicant also had another job, at Tasty, that paid more than her employment with the respondents and it appears that the applicant understated this income in her testimony. The documentary evidence provided by the applicant indicates that employment with the respondents provided the applicant with about 40% of her income prior to her dismissal. Such a loss of income is certainly significant, but the applicant was nonetheless in a better position than applicants who were left with no income, such as in Graham, Bickell and Maciel, above. I have found that non-discriminatory factors also contributed to the applicant’s dismissal and that it is more probable than not that the applicant would have been dismissed regardless of her pregnancy, which in my view reduces the objective gravity of the termination of the applicant’s employment.

55Nonetheless, I accept that the termination of her employment was a significant affront to her dignity and is entitled to a commensurate award of damages. In my view, damages of $10,000.00 are appropriate compensation in the circumstances of this case.

Future Compliance

56The applicant also requested orders to promote future compliance with the Code. Specifically, the applicant submitted that all of the respondents’ managers should complete the Human Rights 101 program, found on the Ontario Human Rights Commission website and that the respondents should be required to draft an internal Human Rights policy with the assistance of a third party expert that, amongst other things, addresses the duty to accommodate and the rights of pregnant employees. The respondents’ Response indicates that the respondents do not have internal human rights policies. In my view, the circumstances of this case indicate that the respondents would benefits from human rights training and that a workplace human rights policy would also be beneficial. Accordingly, I find it appropriate to order the respondents to have its managerial employees complete the Human Rights 101 course and to develop a workplace human rights policy with the assistance of a third party expert.

Order

57The Tribunal orders as follows:

a. The respondents are jointly and severally liable to pay the applicant $1,144.00, less deductions required by law, as compensation for lost employment income. The respondents shall make this payment to the applicant within 30 days of the date of this Decision;

b. The respondents will reissue the Record of Employment issued at the time of the termination of her employment, revised to reflect earnings as if she had worked to the end of September 2012, in accordance with paragraph 57(a) above;

c. The respondents are jointly and severally liable to pay the applicant $10,000.00 as monetary compensation for injury to dignity, feelings and self-respect. The respondents shall make this payment to the applicant within 30 days of the date of this Decision;

d. The respondents shall pay pre-judgment interest on the amounts described in paragraphs 57(a) and (c) above, from September 5, 2012 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 in paragraphs 57(a) and (c) above within 30 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;

e. All of the respondents’ 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.

f. Within six months of the date of this Decision, the respondents shall develop, with the assistance of a third party expert in human rights retained at their expense, workplace human rights policies, addressing, amongst other things, the rights of pregnant employees and shall disseminate the policies to their employees and shall provide a copy of the policies to the applicant’s counsel.