Samuel Zaigh v. SB Towing Inc. and Brenda Schrans, 2014 HRTO 1688

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuel Zaigh Applicant

-and-

SB Towing Inc. and Brenda Schrans Respondents

DECISION ON REMEDY

Adjudicator: Dawn J. Kershaw
Date: November 24, 2014
Citation: 2014 HRTO 1688
Indexed as: Zaigh v. SB Towing Inc.

APPEARANCES

Samuel Zaigh, Applicant
Linda Vannucci, Counsel

SB Towing Inc. and Brenda Schrans, Respondents
Deborah Hudson, Counsel

Introduction

1This Application alleged discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Decision on Remedy follows my decision on liability, 2014 HRTO 1010, in which I found the respondents violated the Code by terminating the applicant’s employment on the basis of disability. The parties subsequently not only attended and made submissions, but gave evidence on remedy as well.

legal principles

3The Tribunal’s broad remedial jurisdiction is set out in s. 45.2 of the Code, which provides 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.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

The Evidence

4The applicant testified and was cross-examined for almost an entire day. He worked at the corporate respondent for 4½ years until his employment was terminated in August 2011. He enjoyed his job, liked helping people and doing good things daily.

5During the liability hearing, the applicant testified that, in February 2011 when he first told the personal respondent he was in pain, she responded if he did not like his job he could quit. She reiterated this in June 2011. The applicant testified both occasions were very emotional for him. He did not understand how the personal respondent could say that to him when he had been so loyal to the corporate respondent.

6When his employment was terminated, the applicant stated he felt shocked, disrespected, worthless and speechless. He did not know what to say or do. He knew he would have financial problems if he could not find work but also knew he could not work because he was in a lot of pain. He felt discouraged, trapped, humiliated and did not know what to do next.

7When the applicant went to pick up his last cheque on August 20, 2011, he brought a doctor’s note and a prescription and hoped the personal respondent would change her mind about his termination. Instead, he testified he asked the personal respondent if he was done with his job and she replied he was. He took his cheque and left.

8The applicant testified that for about two years after his termination he spoke with friends and family repetitively about it because he was emotionally stressed, looking for advice and wanting to vent. It got to the point that people told him they were sick of him talking about it. He testified that with emotional stress he sometimes gets carried away.

9Prior to termination, he would see friends for coffee, movies, barbecues and concerts. The frequency lessened after termination because of financial issues and because he felt depressed. He did not feel like going out at all.

10On cross-examination, the applicant stated he chose not to get counselling. He also chose not to seek medical attention for depression because he feared he would be put on pills and he will not take them.

11The applicant testified he believes he is viewed sometimes as miserable and unhappy. When employed, the applicant was happy and outgoing and enjoyed life. He had some relationships with co-workers, although he testified some of his co-workers were okay while others were untrustworthy. He maintained no relationships with co-workers after his job ended.

12The applicant received Ontario Works financial assistance (“OW”) in November and December, 2011 while waiting for Employment Insurance (“EI”) which began in December, 2011 and which was backdated to September, 2011. He paid back OW once he received EI. He received EI until May, 2012. He now receives OW again.

13He attended Goodwill to do resume and personality courses, and WHMIS certification. He got a first aid certificate. He is now doing a government program called Second Career with the goal of getting an AZ licence. He passed the medical test and had a criminal record check. He still needed to do his written test. The driving course was to begin in October, 2014.

14The applicant lived with his parents before and after his employment was terminated. After termination, the applicant had nothing else going on in his life except looking for work.

15He began looking for work in October, 2011. He did not start sooner because he was too discouraged and unmotivated. He is very discouraged he has not found work. He believes part of the reason is the economy. He provided an April 5, 2013 London Free Press article entitled “London has highest big-city jobless rate in Canada”.

16The applicant mainly sought work that was not repetitive and did not involve anything heavier than 25 pounds. He testified he is not fully recovered with respect to his chronic musculoskeletal pain, but admitted he sought no medical treatment after August, 2011. He testified this was because he did not trust his doctor anymore because he did not support his WSIB claim. He testified on cross-examination he found this out in about October, 2011 although he did not file a WSIB claim until April, 2012. He got a new doctor in 2014, but the doctor now is hospitalized with cancer.

17The applicant provided a 64 page chart (“chart”) comprising over 1000 jobs to which he said he applied between October, 2011 and February, 2014. The applicant first testified that in January, 2013 he began to compile the chart from notes he had written on hotel pads as he looked for work. He testified he did this in case EI asked him for records, even though January, 2013 was 6 months after his EI ceased. When asked about this, he then testified he also used the chart to show OW he was doing the required job search. OW provides $74 per month gas money for job searching. He testified neither OW nor EI questioned his job search.

18The applicant’s resume does not include his employment with the corporate respondent. He testified he thought he may not have had a good name because he was fired. The corporate respondent is familiar to people in London and surrounding areas, and he figures this is the reason he has had no interviews.

19The applicant’s job search consisted mainly of driving to businesses and making random cold calls. He testified he applied in person to all the jobs listed in the chart. He did not apply online because OW required him to be out looking for work. The applicant was asked if in addition to just doing what OW required him to do he also wanted to get a job, and he stated he did. He then further stated however he did not apply to jobs online because OW did not require it of him.

20The applicant testified he did not have a computer at home until November, 2013 and had no vehicle to get to Goodwill to use their job search computer. When asked why he had no vehicle to do that but had a vehicle to job search in person, he stated he had sporadic use of a vehicle.

21On cross-examination, the applicant testified the chart largely was in his friend, Michelle’s, handwriting partially because he hurt his hand around the end of summer 2012 and needed help writing for about six months, although he did not seek medical attention. He testified he also needed her help because there was so much information. Michelle did not testify.

22The applicant was cross-examined with respect to the chart, and gave unrefuted evidence, including the following:

1. The chart showed he applied to the same 13 places in September, 2013 and in January, 2014 (in the same order in the chart) - he first testified he believed he applied to the same jobs on both those dates, but then testified Michelle made a mistake and he only applied once to three of the 13 on the list;
2. The chart showed he applied to the same places in March, 2013 and in October, 2013 because Michelle inputted the information from the same scrap of paper and he then wrote in the wrong dates, even though he testified he dated the scraps of paper the day he applied to the jobs;
3. Where there were duplicate entries, those on lined paper were correct, but he could not explain why those on the unlined paper had different application dates;
4. He testified he took a resume to Mecca in 2013 and 2014, but when asked if he knew it had not been in existence for five years, he testified the first time he attended, the business was there and the second time it was not – he explained the discrepancy by testifying he wrote down places he intended to apply in addition to those to which he actually applied;
5. He found Jean Machine closed when he went there in March, 2013, but wrote down that he left his resume at the front because he intended to do so – when asked to confirm that he would not then apply there again if it was closed, he said he would not and the October 16, 2013 entry showing he did was an error;
6. He may have applied to Banana Republic twice as his chart stated, not realizing they were closed – he did not know why he would go back a second time;
7. Many places shown in his chart were not there when he applied, but he wrote them down because he intended to apply;
8. He agreed his chart said he applied to Benjamin Moore and Battery Solutions but they were not there at the time;
9. He mistakenly listed Buck or Two as a place he applied twice even though the name had changed by the first time he applied;
10. He mistakenly listed Copperfield’s as a restaurant to which he applied twice in 2013 and 2014 even though it closed in 2010 – he wrote down the name he thought it had, and he made the same mistake twice;
11. He applied to Prince Albert’s diner twice in person and mistakenly listed the address as Fullarton Street twice even though it is on Richmond Street;
12. Although his chart says he applied to Angelo’s on Thompson Road at the front counter, he did not because it had closed;
13. Although his chart says he applied to Angelo’s on Queens in July, 2013, he did not because they were closed - the phone number in the chart is the leasing agent’s phone number;
14. Although his chart says he applied twice more to other Angelo’s locations in February, 2012 and in July, 2013, he admits they were closed at the time;
15. He did not dispute the Lazy Diner had been closed for about 1 ½ years although his chart says he applied to twice in September, 2013 and February, 2014 had been closed for about 1 ½ years;
16. When asked if any of the information on page 51 of the list could be trusted, the applicant replied he did not know;
17. He did not know why he did not write “closed” or “not there” rather than, for example, “front desk”;
18. He applied to jobs randomly, and the fact his list was alphabetical in spots was random – he denied writing the places down from the phone book;
19. 90% of his list is accurate and he applied to 90% of the list in person;
20. When asked about several entries with incorrect phone numbers listed, the applicant said Michelle entered incorrect information;
21. With his skill set it was realistic to apply to a small women’s boutique shoe store twice to do stock;
22. Billy T’s formerly was Killaly’s and he made a mistake when he listed it as Killaly’s in October, 2013 even though it had been Billy T’s for about three years;
23. Michelle made a mistake when she referred to Liquidation when it has been Wireless Warehouse for a while – she may have dropped a word off the name;
24. He wrote down he applied to Rogers even though it only accepts online applications because he intended to apply there;
25. He had no evidence to refute that Simply Pure Water listed twice on the chart was only a refilling station within a variety store;
26. He had no reason to dispute that Super Depot to which he applied in February, 2014 had not been in that location for at least two years;
27. He had no reason to dispute that there was never a Taco Time in the city even though he listed it as a place he applied twice; and
28. He did no research and therefore did not know there were businesses that only would accept online applications.

23Karen Tracey, a friend of the personal respondent who works on an hourly basis for her when needed, also testified. The personal respondent hired her to investigate some of the jobs on the applicant’s list.

24Ms. Tracey provided her own chart (“respondent’s chart”), listing in alphabetical order some of the jobs to which the applicant had applied. She investigated some of the places in the chart and the respondent’s chart includes her investigation results.

25Ms. Tracey admitted on cross-examination she is not a trained investigator. She admitted she only got first names of those to whom she spoke because she had never done an investigation before. She agreed some of the information she obtained may have been incorrect, lies or misunderstandings.

26The respondent’s chart shows she made most of her calls in August, 2014. There were over 50 places with a number that was out of service.

27The respondent’s chart stated Ms. Tracey found no record of an Angelo’s on Queens Avenue, although the applicant provided an August 22, 2014 print out from the Internet showing a Queens Avenue Angelo’s location.

28The respondent’s chart quoted a few people by first name to whom Ms. Tracey spoke who did not recall the applicant applying for a job or who could not find the applicant’s resume when asked if they had one from him. One person could find no resume but remembered someone with the applicant’s name coming to ask for a business card he said he required.

29The respondent’s chart also set out several businesses that she alleges:

1. had closed prior to the date the applicant said he applied;
2. accept only online applications; and
3. had a wrong name or address.

analysis and decision

30Credibility was an overarching theme as it was in the merits hearing. The applicant lacked credibility and I could not rely on his evidence in its entirety. I was guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (“Faryna”), which is often quoted by this Tribunal. The Court held:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried 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 a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.

31There was no need to decide which witness’s evidence I preferred. In this case, the applicant’s evidence alone lacked credibility and was unreliable, for reasons I will detail below. I put little weight on Ms. Tracey’s evidence because she was not an objective third party investigator, and because the better evidence was the applicant’s direct evidence.

Wage Loss

32The applicant has a duty to mitigate his losses by making reasonable efforts to obtain suitable employment. See Adams v. Knoll, 2010 HRTO 376 (“Adams”) at para. 16. 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. See Heintz v. Christian Horizons, 2008 HRTO 22.

33The applicant’s evidence regarding his wage loss was frustrating and time-consuming. Cross-examination revealed many difficulties with his chart, including most seriously that he listed many businesses at which he apparently left resumes but which were not even operational. His explanation that he listed intentions as well as the actual applications he made is not credible, particularly because instead of indicating on his list that certain places were closed, he listed that he left a resume at the “front”. This is an unequivocal statement that does not denote only his intention – it is untruthful.

34The applicant’s lawyer attempted to characterize the applicant’s wage loss evidence as disorganized and sloppy, and although I agree with that characterization, it is not a complete explanation. The wage loss evidence was deceitful, and the respondents in my view satisfied me that the applicant largely failed to mitigate his damages.

35I find the applicant was not credible for the following reasons:

a. He testified he could not apply to jobs online because he had no car to get to the Goodwill computer, yet simultaneously he asked the Tribunal to accept his chart that showed he applied to about 1000 jobs, all by using a car to deliver his resume; b. He testified he would not apply to a job if he found the business closed when he attended the first time, yet his chart shows he apparently did that many times (or was untruthful about attending); c. He testified his chart that at times was in alphabetical order ended up that way randomly; d. His chart contained many wrong addresses and phone numbers; e. He testified he did want to get a job, in addition to just satisfying the requirements of OW or EI, yet he also testified he did no online job applications because OW did not require it; and f. He listed some places he apparently applied even though they accept online applications only.

36The applicant also blamed many “mistakes” on Michelle who did not testify.

37This case is similar to Adams, above. In that case once the Tribunal found, as I have here, that the applicant failed to mitigate, the Tribunal then had to determine how long it would have taken the applicant to find work if he had tried to do so. After considering the applicant’s age (49), work history (12 years in manufacturing), ongoing restrictions (capable of working despite some physical restrictions) and the economy (not yet a downturn) the Tribunal concluded that three months was an appropriate time. See Adams at para. 21.

38In this case, the last medical information for the applicant was from August 9, 2011, and noted chronic musculoskeletal pain. There was no medical evidence to support ongoing restrictions after July 24, 2011. The applicant testified his hand was injured for six months but there was no medical evidence to support that. He submitted that his chronic musculoskeletal pain rendered him vulnerable and limited his job search.

39The respondents countered that the applicant provided no medical evidence past August 2011 to substantiate any ongoing disability. I agree with the respondents. Despite the applicant’s longstanding, chronic musculoskeletal pain which pre-existed the flare up that ultimately led to his termination, he had worked for the respondents for many years without issue.

40Given the applicant’s age of 34, the fact his employment was terminated in an economic downturn, his ability to work despite his restrictions and his work history, and factoring in his failure to mitigate, I find it would have taken the applicant four months to find work. My assessment is somewhat longer than in Adams because of the economic downturn.

41The applicant submitted that to calculate wage loss, one option was to take an average of his annual income over the past four years. I agree and therefore find the applicant entitled to wage loss of $8195.08, based on his average annual income in the years 2008 to 2011, including extrapolating his income in the first six and a half months’ income in 2011 over the whole year.

Damages for Injury to dignity, feelings and self-respect

42The Divisional Court has stated that an award for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate. See: ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649 at para. 152.

43The Tribunal’s jurisprudence has primarily applied two criteria in evaluating 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 Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at para. 52.

44The applicant requested an award of $25,000 for injury to dignity, feelings and self-respect. The respondents terminated the applicant’s employment because of his disability. Prior to termination, the personal respondent told him if he did not like his job, he could quit.

45He was employed by the respondents for 4½ years and was referred there by his father who also had worked there. It was a small workplace and he was friends with some of his co-workers.

46The applicant was shocked when he was fired. His termination was sudden and had a profound effect on him. He ruminated about it to the point others told him to stop talking about it.

47The respondents asked that I award the applicant less than $10,000 for the following reasons:

• his evidence was not credible and therefore I should not accept his evidence that he was unhappy and depressed when terminated;
• he was a short term employee;
• he had long periods of unemployment prior to working for the respondents.

48Because I found the applicant’s evidence not to be credible with respect to his job search, I cannot accept his evidence in its entirety with respect to the effect of the termination on him. He also produced no medical documentation to support his claim that he was depressed and testified he refused counselling.

49Despite the applicant’s lack of credibility, it does not change the fact the respondents terminated the applicant because of his disability, which more probably than not had an adverse impact on the applicant even if his evidence with respect to the exact impact was not reliable.

50The applicant characterized this as more than one incident of discrimination – the termination, and the personal respondent’s comment when he told her about his pain that he could quit if he did not like his job. Although I referred to the comment in the merits decision I did not find it was a separate discriminatory act and was not asked to do so. As such, my assessment of injury to dignity, feelings and self-respect relates to the termination because of disability.

51I reviewed the case law submitted by the parties and also note the Tribunal’s statement in Vallee v. Fairweather, 2012 HRTO 325 as follows:

Recent Tribunal decisions that have considered disability-related discrimination in the context of the termination of an applicant’s employment have generally made awards ranging from $10,000 to $45,000. See, for example, Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 ($45,000); Krieger v. Toronto Police Services Board, 2010 HRTO 1361 ($35,000); Lopetegui v. 680247 Ontario, 2009 HRTO 1248 ($20,000); Mirashrafi v. Circuit Centre, 2010 HRTO 512 ($15,000); Vetricek v. 642518 Canada, 2010 HRTO 757 ($15,000); Duliunas v. York-Med Systems, 2010 HRTO 1404 ($15,000); LeBlanc v. Syncreon, 2010 HRTO 2336 ($10,000); and Coscina v. Halton School of Equitation, 2011 HRTO 1949 ($10,000).

In the cases where awards less than $10,000 have been made, the Tribunal found the applicant had work performance issues that contributed to the termination, only worked for the respondent for a short period of time, and/or failed to present evidence of the impact of discriminatory termination on him or her. See, for example, Quattroci v. Boz Electric Supply, 2009 HRTO 1082 (“Quattroci”); Garcia v. Tri-Krete, 2009 HRTO 2181; and Buckingham-Vanderlei v. Walker, 2010 HRTO 1338.

52I also have considered the case law in which there was a reduction in the award for injury to dignity, feelings and self-respect because of applicant misconduct at the hearing. See, Quattroci, above; Gamache v. York University, 2013 HRTO 693 (“Gamache”); Giguere v. Popeye Restaurant, 2008 HRTO 2; and Nyonzima v. Idlewyld Manor, 2011 HRTO 1517.

53I do not find the applicant’s conduct so egregious that it warrants a denial of damages for injury to dignity, feelings and self-respect. However, the applicant’s chart which clearly contained false evidence is worthy of some sanction. The Tribunal in Gamache and Quattroci reduced the compensation for injury to dignity, feelings and self-respect by $1500 because the applicant tried to mislead the Tribunal.

54I find the case to be similar to that of Hebert v. 1497422 Ontario Inc., 2013 HRTO 133, and I find an appropriate award for damages for injury to dignity, feelings and self-respect is $12,500 given the length of service, but also recognizing that the relationship between the applicant and respondents had become somewhat fractious in April, 2011 before the onset of the applicant’s disability when the applicant and respondents had police involvement in a disagreement about wages and the applicant allegedly withholding a company vehicle.

55This amount also reflects the lack of any medical evidence of depression. Simultaneously it takes into account his termination after 4½ years, which undoubtedly had an impact on the applicant’s mood, his ability to engage in activities that required money and his ability to contribute to his parents’ expenses.

56I reduce the $12,500 amount by $1500 down to $11,000 to sanction the applicant for presenting the Tribunal with false evidence that necessitated a full day of examination and cross-examination.

Non-monetary Remedies

57The applicant requested the personal respondent take the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 60 days of this Decision, and the personal respondent did not object to doing so. I find this appropriate as I am not satisfied the personal respondent is aware of her obligations under the Code. The personal respondent will provide the applicant with written confirmation that she has done so upon completion of the course.

58The applicant also requested the respondents be required to post Code cards in their company vehicles to promote future compliance with the Code. This also is appropriate because it appeared the personal respondent did not have a full grasp of her responsibilities under the Code.

order

59The Tribunal makes the following orders:

1. The respondents shall pay the applicant $11,000 as compensation for the injury to his dignity, feelings and self-respect;
2. The respondents shall pay the applicant $8,195.08 in monetary compensation for lost income. Pre-judgment interest is payable on his lost income from August 8, 2011 to the date of this Decision;
3. Post-judgment interest is payable on any amount of the monetary compensation for injury to dignity, feelings and self-respect and lost income not paid within 30 days of the date of this Decision;
4. The personal respondent shall take the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 60 days of this Decision and shall provide to the applicant written confirmation that she has done so upon completion of the course;
5. Within 30 days of the date of this Decision the respondents shall post Code cards in a visible location in their company vehicles.