Tammy Pelletier v. Andy Myers Lodge and Julien Kalka, 2014 HRTO 1633

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Pelletier Applicant

-and-

Andy Myers Lodge and Julien Kalka Respondents

DECISION

Adjudicator: David Muir Date: November 6, 2014 Citation: 2014 HRTO 1633 Indexed as: Pelletier v. Andy Myers Lodge

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of disability.

2In Interim Decision, 2014 HRTO 861, dated June 11, 2014 the Tribunal determined that the respondents appeared to have refused, or had chosen not to, participate in these proceedings. In the circumstances, the Tribunal determined that it would proceed without the participation of the respondents and deemed the respondents to have waived their right to notice and to participate pursuant to Rules 5.5(b) and (c) and further deemed the respondents to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

3Despite these Orders a hearing was held on October 17, 2014 by telephone conference call. The applicant attended. The applicant was affirmed and adopted the narrative of her Application as her evidence. I also asked her a number of questions arising from the narrative. I am satisfied that the applicant was being truthful in her testimony and in the absence of any response from the respondent I accept her evidence as a reliable narration of the events material to this Application.

4For the reasons that follow I find that this Application must be allowed.

5Based on the applicant’s evidence I make the following findings of fact. The applicant, who had been employed by the respondent for 13 years, was injured in the workplace on July 1st 2013. She applied for, and received, Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A (“WSIA”) benefits for a period of time until declared fit to return to work on or about September 10, 2013.

6The applicant was employed as a housekeeper with the organizational respondent, a hunting lodge. This was a seasonal operation – it was open from the beginning of May until mid to late November. The applicant testified at the hearing that she would normally be laid off in the fall, and would return to work in mid-April the following spring.

7The applicant called the owner of the organizational respondent, Julien Kalka (“the individual respondent”), on September 11, 2013 and told him she was able to return to work. The individual respondent told her that he would call her back because he was busy at that moment. The individual respondent never called back. The applicant made numerous attempts to contact the individual respondent, sometimes 3 or 4 times per week but received no responses to her message. The applicant attempted to reach the individual respondent on both his cell phone and telephone land-line.

8The applicant did speak to the individual respondent on one occasion. On September 30, 2013 the applicant asked the individual respondent if she still had her job at the camp and was assured by him that she did and should not worry.

9At the hearing the applicant amplified on the narrative of this discussion set out in the Application in response to my questions. She confirmed that during this conversation she and the individual respondent also spoke about the deer hunt that is hosted by the organizational respondent. The applicant had worked the deer hunt at the conclusion of the two previous seasons with the respondents. The deer hunt runs between mid-October to mid-November. The applicant testified that the individual respondent told her that his spouse was sick and was going home to Dryden with their children and accordingly he would need the applicant to help during the hunt. The applicant testified that the individual respondent also said he would call her back in a week or two when it was time for her to start. The applicant testified that the individual respondent did not her call back and when he did not she called him two or three times, leaving messages but never heard from the individual respondent. I accept the applicant’s evidence in this regard.

10The applicant did not return to work and because her hours of work had been reduced by not being called back to work on September 10, 2013 her entitlement to Employment Insurance was reduced.

11The applicant learned that the respondents challenged her WSIA claim and filed records from her WSIA file. In these materials there is indication that the individual respondent advised the Workplace Safety and Insurance Board (“WSIB”) that she had made prior claims and that the individual respondent did not think that the injury had taken place at work.

12The WSIB records filed by the applicant also indicate that in July 2013 the individual respondent told the WSIB that the applicant would not be returning to work with the organizational respondent. The applicant only became aware of this contact with the WSIB after she was unable to contact the respondents in the fall of 2013. The applicant also accessed her Service Canada account in February 2014 and found a Record of Employment issued by the respondents on November 8, 2013 which indicated that the applicant would not be returning to work.

13The applicant attempted to contact the individual respondent in March 2014 to clarify her status with respect to a return to work, which would normally be in April 2014. She called and sent text messages. Finally on March 4, 2014, she sent a letter to the individual respondent asking about the Record of Employment and whether or not she would be returning to work. The individual respondent responded by saying that the applicant would receive a formal response when he arrived at the office. The applicant never received a response. The applicant submitted text messages including the text of her letter referred to above.

14The applicant began looking for work in March 2014 when it became clear to her that she was not returning to work with the respondents although the individual respondent had never advised her that she would not be returning, or if not returning, why that would be the case. The applicant found a part time job beginning on May 20, 2014. This was a part time job – 20 to 25 hours per week. In June the applicant found a second part time job which provided her with an additional 10 to 15 hours of work some but not all weeks during the season.

15The applicant has now stopped actively looking for work and has entered Second Career a program that assists in re-training individuals seeking work.

16The applicant testified that she suffered considerable anxiety because of the loss of income. She testified that she felt like she was not treated with respect and dignity by the respondents. The emotional impact of these events was evident in her evidence at the hearing. On the other hand the applicant immediately got on with her life and began looking for work with some success once it was clear that the applicant was not returning.

Analysis and Remedies

17I find that there is sufficient circumstantial evidence to infer that a factor, if not the only factor, in the apparent decision of the respondent to not return the applicant to the workplace after her workplace injury was that she had filed a WSIA claim and/or she was perceived to be a person with a disability.

18In my view the applicant was entirely credible. I also note that that the applicant provided documentary evidence which tended to support her assertion that while the individual respondent was saying one thing to her he was apparently saying something quite different to the WSIB and Service Canada about the applicant’s future. While the record in the WSIB materials is hearsay and not necessarily reliable, the ROE is in my view akin to a statement made by the respondents and in all the circumstances is reliable evidence of the respondents’ intentions with respect to the applicant’s future. In this regard I also note that the individual respondent the owner of the organizational respondent was given an opportunity to explain his dealings with the applicant and has chosen not to do so. In the absence of any response or evidence from the respondents, the most reasonable inference to be drawn from the circumstances is that the applicant was de facto dismissed from her employment in whole or in part because she became injured at work and filed a WSIA claim and/or was perceived to be an employee who was injury prone and might be a problem in the future.

19The remedial provisions of the Code are set out in section 45.2(1) which provides as follows:

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.

20The applicant seeks compensation for lost wages for the period September 10, 2013, the date she could have returned to work until the end of the 2013 season a period of 10 weeks. The applicant provided calculations for this period, which included the rate of pay higher than she was actually paid. The applicant took the position that the reduction in her salary, which took place, before her workplace injury was unfair. While this reduction in wages might have been unfair, there is no basis to conclude that the decision to reduce her wage rate was discriminatory. On the other hand the applicant based her calculation on 50 hours per week during the season whereas various materials including documents submitted to the WSIB indicate that the applicant worked on average 55 hours per week during season. I find that the applicant is entitled to lost wages for this period in the amount of $7,425 ($13.50 X 55 hours X 10 weeks) less statutory deductions required by law.

21Similarly the applicant seeks the difference between the wages she was paid in her new employment and what she could have earned had she continued to work for the respondent in the 2014 season from mid-April to mid-October 2014 a period of approximately 27 weeks. The applicant submitted that had she returned to work for the respondents in mid-April 2014, as she had for 13 years, she would have worked 30 more hours per week on average more than with the two part time jobs, which she did find. I accept the applicant’s evidence in this regard despite the absence of documentation to support it. I observe that the applicant’s estimates are on the conservative side in that she does include a number of weeks in 2014 when she did not work at all but would have been employed with the respondents. Accordingly I find that the applicant is entitled to an award of lost wages in the amount of $10,530 ($13.00 X 30 hours X 27 weeks) less deductions required by law.

22The applicant also seeks compensation for the reduction in her employment insurance entitlement consequent to her not returning to work after she was cleared to do so on September 10, 2013. The applicant submits that her EI entitlement period was reduced by 10 weeks. It is not clear why this was the case, nor is it clear what impact her being off work on WSIB benefits from early July to September 10, 2013 would have had on her EI entitlement over the winter months. Although the applicant has attempted to provide me with a basis to make this award I find that I am unable to do so based on her assertions.

23I do Order that the organizational respondent issue a revised ROE reflecting the fact that the applicant should have been at work and receiving wages from September 11, 2013 to November 15, 2013. The applicant may seek to have her EI claim reviewed based on the revised ROE.

24Finally, the applicant seeks a similar award for a shortfall in her EI entitlement over the coming winter of 2014-15. I decline to make such an order in the circumstances for the same reasons set out above. I also find that it becomes somewhat speculative at this stage that the applicant would have continued to be employed by the respondents or would have continued to work the weeks she previously had. In fact the applicant has now stopped looking for work and is enrolled in a job retraining program.

25The applicant is also entitled to interest on the unpaid wages she should have been receiving from September 11, 2013. This interest will be calculated on the principal sum owing from roughly the mid point in the period of time during which these wages should have been paid, approximating the interest lost on these funds had they been paid to her as wages when they were due.

26In my view an award of compensation for non-pecuniary losses is also appropriate in the circumstances. The applicant testified that she felt devalued and hurt by the respondent’s failure to return her to work. The applicant also testified that she was hurt by the individual respondent assuring her that she would return to work when individual respondent appeared to be saying something else to the WSIB and Service Canada about the applicant’s future. The applicant testified that the uncertainty over the winter of 2013-14 caused her some stress and anxiety.

27I have considered the fact that the organizational respondent had employed the applicant for 13 years and lived in an area (near Dryden Ontario) where work is not easy to find. I have considered as well the fact that the individual respondent never did advise the applicant that she was not returning and I accept the applicant’s evidence about how this impacted her. In all of the circumstances, I find that an award of general damages in the amount of $12,500 is appropriate in all of the circumstances.

28I also find it appropriate in these circumstances that the respondents be jointly and severally liable for the Orders below. I accept the applicant’s evidence that the individual respondent purchased the organizational respondent and held himself out as the new owner. I also note that the individual respondent appears to have been the only decision maker in relation to the applicant. In these kinds of circumstances it will generally be appropriate to find joint and several liability. The Tribunal makes the following Orders:

(i) The respondents will pay to the applicant the amount of $17,955 with pre-judgment interest payable from May 1, 2014 less any amounts required by law to be deducted from employment income.

(ii) The respondents will issue, within 30 days of this Decision, a revised Record of Employment reflecting the fact that the applicant should have returned to work on September 11, 2013 and would have been employed until November 15, 2013.

(iii) The respondents will pay to the applicant the sum of $12,500 inclusive of interest for non-pecuniary losses arising from the violations of her rights under the Code; and

(iv) The applicant is entitled to post judgement interest in accordance with the Courts of Justice Act on any amounts awarded to the applicant and still owing to the applicant 30 days after the date of this Decision.