Wratten v. 2347656 Ontario Inc., 2015 HRTO 1041

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yvette Wratten

Applicant

-and-

2347656 Ontario Inc. o/a Toppers Pizza Georgetown

Respondent

DECISION

Adjudicator: Kathleen Martin

Date: August 6, 2015

Citation: 2015 HRTO 1041

Indexed as: Wratten v. 2347656 Ontario Inc.

APPEARANCES

Yvette Wratten, Applicant

Jean-Alexandre De Bousquet, Counsel

2347656 Ontario Inc. o/a Toppers Pizza Georgetown, Respondent

Jack Braithwaite, Counsel

1This is an Application filed September 26, 2013, alleging discrimination with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was fired because of her pregnancy. In particular, the applicant alleges that she was confronted by her manager about the rumour she was pregnant and when she acknowledged it was true, she was fired.

2At the time the Application was filed, the applicant was self-represented and alleged discrimination because of sex and reprisal. At the outset of the hearing, the applicant clarified through her counsel that she was no longer alleging reprisal and the single issue to be adjudicated was whether or not the applicant was discriminated against in being terminated on September 14, 2013.

3The respondent denies that it terminated the applicant because of pregnancy. The respondent disputes that the applicant was pregnant or that the respondent had knowledge of a pregnancy. The respondent states that the applicant was terminated for legitimate business reasons.

4For reasons that follow, I accept that the applicant was pregnant at the time of termination. I also find that pregnancy was a factor in the applicant’s termination. I do not find that there is credible evidence that legitimate business reasons were the sole reasons for the applicant’s termination.

The Proceeding

5A hearing was held on October 9 and 10, 2014, and February 2, 2015. I heard evidence from six witnesses. The applicant; Dr. Razvi, the applicant’s doctor; and Lynn McPherson, the applicant’s mother, testified on behalf of the applicant. Stephen Brown, the manager of the store where the applicant was employed; Ron Lochhead, an area manager/franchise consultant; and Christina Lamoureux, the accounting and payroll administrator, testified on behalf of the respondent. The parties made oral submissions after the evidence was completed.

6In the course of the hearing, I issued a number of interim rulings. Two warrant mention. The respondent clarified that its name was different from that identified in the original pleadings. On consent, the name of the respondent was amended to the name reflected in the style of cause.

7In addition, I addressed an objection regarding the late disclosure of a witness statement. On the second day of hearing, the respondent sought to call Ms. Lamoureux as its first witness and produced a witness statement not previously disclosed in accordance with the Tribunal’s Rules. The applicant objected on the basis that it was prejudicial to present this witness without the applicant having an opportunity to investigate the “new” evidence being presented. The respondent submitted it should be permitted to determine the order of its witnesses. I did not permit the respondent to call Ms. Lamoureux as its first witness and denied the respondent’s request that I reconsider my ruling given the late disclosure of the witness statement containing a summary of evidence not previously disclosed. The hearing proceeded and the respondent called Stephen Brown who was completed that day. Ms. Lamoureux testified on a later date.

THE EVIDENCE

Background and Uncontested Facts

8The basic chronology of events was not in dispute or where there were minor differences, I do not find it necessary to resolve the differences. As a result, I accept the following background facts unless indicated otherwise.

9The respondent operates a pizza business with a franchising and corporate division. Some store locations are operated by franchisee owners and others by the corporate respondent directly. The applicant was employed by the respondent (or one of its franchisees) at its Georgetown location from March 2012 to September 14, 2013.

10The applicant was initially hired as a pizza delivery driver by the then franchise owner at the Georgetown location. In or around October 2012, the franchise owner ceased operating the store and the respondent took the store over as a corporate location. The applicant was one of a number of employees who continued working at the location when the respondent took over. In the first few months after the respondent took over the store, the location was managed by staff from head office including Ron Lochhead, who was variously described as an area manager or franchise consultant and was identified as being employed by the respondent’s franchising division. Mr. Lochhead gave evidence about his work experience with the applicant during the period of his management of the store, acknowledging that he had praised the applicant to her mother when her mother attended the store stating that he found the applicant “dependable”.

11In January 2013, Stephen Brown, who was then working as an area manager in the Sudbury area for the respondent, moved to the manager position at the Georgetown location. Mr. Brown is the manager who terminated the applicant.

12After he became manager, Mr. Brown moved the applicant into a job in the kitchen. Mr. Brown stated that he moved the applicant into the kitchen because he had a lot of part-time students and wanted someone not in school who was available to work “any” time.

13The applicant testified being promoted to a kitchen supervisor from the outset of her tenure in the kitchen in January 2013 and that her duties included overseeing kitchen staff and drivers, training staff on how to make pizzas, and processing telephone orders. The respondent’s witnesses disagreed on the timing of the promotion, with Ms. Lamoureux suggesting that the promotion occurred in March 2013. Ultimately, I do not find it necessary to determine whether the applicant became a supervisor immediately in January 2013 or a few months later in March. I accept that the applicant was promoted at least six months before the termination.

14The applicant was one of two supervisors at the store. The other supervisor opened the store and the applicant closed the store. Mr. Brown stated that the applicant and the other supervisor worked “mostly different times” although there was “some overlap” which he described as working a number of hours on a day or two a week.

15After the applicant became a kitchen supervisor, she continued to do driving shifts every Friday and Saturday night (and occasionally on Thursday night) until the termination of her employment. The applicant was treated and paid as an employee for her work in the kitchen and paid cash and referred to as an “independent contractor” for her driving shifts.

16On June 18, 2013, the applicant was given a written evaluation of her time as a supervisor which aligned with having been in the position of approximately three months. The applicant was ranked as “meets job requirements” and “exceeds job requirements” in the vast majority of categories (18 and 31 respectively out of 56 categories) and was ranked as being unsatisfactory in only one category, namely “puts success of team above own interests”. The evaluation contained a number of positive comments including “very dependable”, “good communication with staff and management”, “good attitude towards customers at front counter and on phone”; it noted some areas for development or improvement including “must start to develop into a team leader by setting the example for the team”, “works well with staff but can’t let temper overcome her when disagreements happen” and “start training on more responsibilities i.e. daily paperwork and shift ownership”. The evaluation coincided with a pay increase on June 23, 2013 from $10.75 per hour to $11.25 per hour.

17The applicant was terminated on September 14, 2013 during a meeting. There are different accounts of what happened during the termination meeting which is addressed below. No letter of termination was issued.

18The respondent has a policy of progressive discipline. Until she was terminated the applicant had not received a written warning or suspension. There is a dispute about whether or not the applicant received any oral warnings about her performance which I also address below.

19The respondent paid the applicant a week’s notice at the time of her termination.

The Contested Evidence and Findings

20Over the three days of hearing, the parties called a significant amount of evidence in support of their respective positions. Below, I address only the evidence relevant to the issues that require determination in this Application.

21As indicated above, the parties have different accounts of what happened during the termination meeting and whether there were performance issues in the period leading up to the meeting. As much of Mr. Brown’s evidence about performance issues was not specific as to dates, I provide his account of the alleged performance concerns at the same time as his account of the termination meeting.

22The key findings in this case turn primarily on the credibility assessment of the applicant and Mr. Brown as they are the only witnesses with any direct knowledge of the termination meeting where the alleged remarks were made about the applicant’s pregnancy and the alleged performance issues.

23In assessing the witnesses’ evidence, I have applied the 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, and in particular whether the evidence presented is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and those conditions.”

24In addition, I have considered the factors set out in Cugliari v. Telefficiency Corporation, 2006 HRTO 7, namely the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence and observations as to the manner in which the witnesses gave their evidence. I have also been mindful of the Ontario Court of Appeal’s comments on credibility and reliability in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (C.A.) at p. 205, when the Court stated that reliability is influenced by a witness’s ability to “accurately observe, recall and recount” events and credibility goes to the propensity to tell the truth or the “sincerity” of the witness.

25For reasons which will be outlined in greater detail below, I prefer the evidence of the applicant to the evidence of Mr. Brown, and where relevant, the evidence of Mr. Lochhead and Ms. Lamoureux.

26I found the applicant’s account of events detailed, internally consistent and measured, all of which contributed to my finding that the applicant was credible. In comparison, on the key issues I had to determine, I did not find the evidence of the respondent’s witnesses credible. In the particular case of Mr. Brown, and for reasons outlined in greater detail below, I did not find Mr. Brown’s account of what transpired to be in harmony with what is reasonable and probable in the circumstances. The limited details of the alleged performance concerns, the inconsistencies between his account in his oral evidence and his write-up of the termination, the absence of documentation and the failure to preserve some of the evidence all contributed to undermine the credibility of his account.

27I also had concerns with the two other witnesses for the respondent, Mr. Lochhead and Ms. Lamoureux. Mr. Lochhead acknowledged that he had difficulty recalling details of events and changed his evidence at various points in his testimony which I found negatively impacted on the reliability of his evidence. In the case of Ms. Lamoureux, her evidence about her involvement in counselling Mr. Brown on what to do about the applicant’s alleged performance issues was raised for the first time on the second day of hearing and after the applicant had testified. In the absence of any reasonable explanation, I found this late disclosure very problematic.

28I now turn to a review of the contested evidence.

The Job in Milton: Offer or not?

29The applicant relied on an alleged job offer to be a manager at another store in early August 2013 as evidence to support her position that she continued to be a viewed as a valued and competent employee in the month before she was terminated. Both the applicant and Mr. Lochhead testified that a conversation occurred between them regarding a potential opportunity for the applicant to move into a position at a store located in Milton. Their evidence differs, however, with respect to the timing of that conversation, who initiated the conversation, and the content of the conversation with the applicant testifying it was a manager’s position and Mr. Lochhead stating he did not recall if it was a supervisor or manager position.

30However, even accepting that there was a conversation, there is insufficient evidence to find that this inquiry was equivalent to a job offer. There is no evidence that any terms were discussed and the applicant did not challenge the evidence that the store was re-franchised and in this circumstance, the respondent would not be the party making the hiring decision.

The Store Visitation Report

31The respondent, through its witness Mr. Lochhead, adduced evidence of one of Mr. Lochhead’s routine store visitation reports related to the Georgetown location, dated “Aug 13/14/15/2013”. The report contained 28 items related to the Georgetown location. The only specific staff member referenced was the applicant. In particular, the document states: “Yvette not productive and does not know how to give proper direction to fellow staff members” and “Yvette should be kept as a driver and not a shift supervisor”.

32During his testimony, Mr. Lochhead was unable to explain what he meant by the applicant not being productive and provided limited particulars about his comment about giving direction to staff in the report. In any event, as I will discuss below, I find that this report did not play a part in Mr. Brown’s decision to terminate the applicant.

The Applicant’s “Pregnancy”

33At the beginning of September 2013, the applicant performed a home pregnancy test, which was positive.

34The applicant testified that after she found out she was pregnant in early September, she confided in two employees whom she identified by name: a driver who was training for a medical-related position and the driver’s daughter. The applicant stated that a few days later, a different driver (whom she also identified) congratulated her. The applicant testified that she was “dumbfounded” as she had not told this driver and asked how he knew. The driver advised that the other supervisor had told him this (also a person that the applicant had never told). The applicant urged this driver to keep it quiet as she was “high risk” and did not want to stress herself. The applicant explained in her testimony that she was considered “high risk” as she had had difficulties with pregnancies in the past.

35The applicant’s doctor testified confirming that the applicant came in to see him on September 9, 2013 as the applicant had received a positive home pregnancy test and was exhibiting certain symptoms associated with pregnancy. The doctor took blood work and based on his examination and tests, opined that as of September 10, 2013, the applicant had good reason to believe that she was pregnant. However, because of the particular result, the doctor decided to repeat the testing. It was subsequently determined, after the applicant was terminated from her employment, that the applicant had an ectopic pregnancy.

36I accept that the applicant was pregnant and learned of her pregnancy through a home pregnancy test in early September prior to the appointment with her doctor. I also accept that the applicant disclosed to two employees that she was pregnant and that the applicant became aware a few days later that one other employee knew (and that this employee advised the applicant that the other supervisor also knew).

37While the respondent submitted that the applicant’s pregnancy was “tenuous at best” and that given her history of miscarriages, it was unlikely that she would have disclosed her pregnancy, I accept the applicant’s explanation that she disclosed her pregnancy to two employees (whom she identified) because she was “basically looking for support”. I found that this explanation credible. Moreover, the applicant identified all four employees who either were told of her pregnancy or she understood were aware of her pregnancy and while asking the applicant why she told two employees, the respondent did not otherwise challenge her evidence that she disclosed her pregnancy to two employees or that two other employees were aware of her pregnancy, nor did the respondent seek to call contradictory evidence at the appropriate time.

38In making this finding, I have considered the respondent’s argument that the applicant’s evidence was inconsistent with the “witness statement” submitted in advance of the hearing as to the timing of when the applicant told one of the employees but do not find it impacts on the applicant’s credibility on this point. When the applicant was questioned about the witness statement saying something different on timing, the applicant stated that she had not prepared the statement and that it may not be accurate. I also note that the statement is not signed by the applicant. In light of the foregoing, I do not view the witness statement as being a prior inconsistent statement (see: Giguere v. Popeye Restaurant, 2007 HRTO 26 at para. 9).

The Termination Meeting and the Alleged Performance Reasons for Termination

The Applicant’s Evidence

39The applicant stated that on Saturday, September 14, 2013, she was scheduled to work a driving shift from 5 p.m. to 11 p.m. The applicant states that Steve (which is how she referred to Mr. Brown) asked her to come to his office and closed the door. Steve asked her about the rumour that she was pregnant and if it was true. The applicant acknowledged it was true and Steve replied “I guess we are going to [have to] part ways”. The applicant stated that she told him that that was illegal and that he could not do that and Steve gave her a smirk and said “I think I can”. The applicant stated that she said “see you in court” and walked out. The applicant stated that she was not asked to sign anything in the meeting, unlike what had happened in a previous termination meeting that she attended as a witness.

40The applicant states that she called Ron Lochhead, the area manager/franchise consultant and told him that Steve had just fired her because of her pregnancy and that she would give him the keys to the store. Mr. Lochhead stated that he would talk to Steve to see what happened and get back to her. The applicant stated that Mr. Lochhead never got back to her and that she still has the keys in her old car. The applicant acknowledged that Steve tried to contact her about the keys but she did not answer the phone as she wanted to give them to the “owner”, i.e. Mr. Lochhead.

41In her evidence-in-chief, the applicant was asked about her work performance and drew no distinction between the period before her evaluation or afterwards. The applicant stated that every day she worked, Steve would say – “thanks, good job”. The applicant was specifically asked about her relationship with the other supervisor and acknowledged that she had some differences with the other supervisor (describing it as not seeing “eye to eye” on issues). In fact, the applicant stated that it was her relationship with the other supervisor that led to the remark in her review about not letting her temper overcome her. The applicant gave evidence about some examples of conflict and in some instances, Steve’s reaction.

42In cross-examination, the respondent put to the applicant that Mr. Brown would testify that things were addressed with her “verbally” including yelling at workers in a negative manner, being negative to a customer and swearing in front of staff members. The applicant denied that she had been spoken to about any such incidents with one clarification. The applicant stated that there had been a “driver conversation” about everyone swearing in the back of the lobby and that even “Steve” dropped the “f bomb” more than once. The applicant was also asked about and denied that there was a specific incident involving locking an employee in a cooler and turning the lights out. The applicant stated that the cooler could not be locked.

43In addition, the applicant was asked during her evidence-in-chief and during cross-examination about Mr. Brown’s post-termination account of the termination meeting. The applicant denied Mr. Brown’s account that he raised performance concerns during the meeting, including her “continued animosity towards another supervisor” and his account of his observation of her use of a cell phone and comments to her in this regard. While the applicant’s evidence was not entirely clear, the applicant appeared to suggest that on a previous occasion, Mr. Brown had mentioned seeing her on her cell phone and had limited his inquiry to asking why she was on the phone. The applicant stated that she often checked her phone because she, Mr. Brown and the other supervisor often talked by cell phone so as not to tie up the work line.

The Respondent’s Evidence

44Mr. Brown gave a different account of the termination meeting and the circumstances leading up to the termination.

45Subsequent to the June evaluation, Mr. Brown stated that he identified a number of issues. He stated that there seemed to be “competition” between the applicant and the other supervisor. Mr. Brown stated that “Yvette wanted to be the best supervisor” so she could be “assistant manager”. He stated that this started “animosity between them” that “spilled over to others”. He stated that when the schedule went up, the applicant would be concerned (“always confrontational” about why the other supervisor “got this” referencing the number of closing shifts or a couple more hours of work). He stated that Yvette had an issue with closing shifts and was giving them away to other employees instead and that he “felt” that people were feeling “intimidated by her to take them”. He stated that the impact of this was “a lot of negativity” which started not long after July. However, when asked for particulars, Mr. Brown identified only one example when a driver stated that she “can’t take this – the friction between Yvette and [the other supervisor]”. He acknowledged that no one said that they would quit although he “felt” that he would “lose a bunch of people”.

46Mr. Brown also stated that he had a complaint of swearing in front of a customer that an employee told him about, although no further details were provided. Mr. Brown stated that two or three days before the applicant’s termination, he observed the applicant talking on a cell phone on and off for 1.5 hours on a video recording produced in the store and at one point during that time, a person was waiting, the applicant knew the customer was waiting and eventually she grabbed someone from the back to help them. Mr. Brown stated that this was one of the “biggest issues” – the customers being ignored at the front counter.

47When asked when he decided to terminate, Mr. Brown stated that he thinks that viewing the video was the “last straw” and he decided that that was enough. Mr. Brown stated that he made the decision on his own, although he had consulted Ms. Lamoureux earlier about his concerns. He gave no details about the nature of their consultation.

48Mr. Brown stated that on the day the applicant was terminated, he asked to speak to the applicant and started to explain the incident with the video camera. He stated that he explained his dissatisfaction of what he had seen that night (on the video camera) and that “people were threatening to leave” and that he could not have her in the store any longer. Mr. Brown states that the applicant said that she had a legal proceeding she was going through against the other supervisor and that legally he could not terminate her. Mr. Brown states that he explained that this had nothing to do with any other legal proceeding and he “just couldn’t have her in the store” and she would “just have to leave”. Mr. Brown states that he believes he told her that he would pay her out and she left saying “we’ll see you in court”.

49Mr. Brown denied asking the applicant about a rumour that she was pregnant and denied that he heard a rumour about the applicant being pregnant.

50After the termination, Mr. Brown stated that he prepared notes of what occurred and then later typed them up since he was not sure someone could read his handwriting. The typed copy of the notes were produced in the hearing and refer to Mr. Brown advising the applicant of his dissatisfaction with her continued animosity to another supervisor and how it was negatively affecting the store; that another staff was thinking about leaving because of her behaviour; and that Mr. Brown watched the security cameras and was “bothered with her lack of work and constant cell phone use, to the point where she chose to continue talking on her cell phone instead of helping a customer at the front counter”.

51Mr. Brown was asked about the store visitation report that was filled out by Ron Lochhead that contained the date, “Aug 13/14/15/2013” but did not appear to recall discussing it with Mr. Lochhead. He stated that Mr. Lochhead “leaves it to management of the store” and that “this was more or less his recommendation”. When specifically asked by the respondent’s counsel, if this opinion was consistent with the concerns he was noting, Mr. Brown stated that he “thinks it does”.

52Mr. Brown stated that an employee going on maternity leave was if anything “a benefit”. He explained that you get plenty of time to train someone (as you get 6-7 months’ notice) and that when they return you have a fully trained person. Mr. Brown stated that someone going on maternity leave has never been an issue for him and that Toppers Pizza has had five employees go on maternity leave, although he did not provide any details their positions in the company or circumstances, other than one woman who took two leaves and did not return from the second leave.

53Mr. Brown stated that he has fired two kitchen workers and three to four drivers. One employee was fired for theft and a second was under a three-month probationary period and was not being productive. As for the drivers, Mr. Brown stated that one would not work shifts any longer, the second spent a couple days in jail and the third had three jobs at once so it was “not beneficial” to keep him there.

54In cross-examination, he agreed that he usually brings in a witness into a termination meeting, which he did in the theft case. He also agreed that one reason to bring in a witness is that it may be “helpful”.

55In cross-examination, Mr. Brown was also asked about his compliance with the progressive discipline policy of the respondent and stated that he spoke to the applicant numerous times about giving the schedule away but agreed that he never gave her a written warning. When asked to explain, Mr. Brown stated that “it just seemed to be a whole lot of little things that culminated” and that “a lot of these issues are dealt with and you move onto something else”. Later in his cross-examination, Mr. Brown suggested the applicant had engaged in problematic conduct because there was a negative aspect on the store, she had ignored a customer and was damaging the business, although he agreed that according to employment standards there was no cause and as a result she was paid “severance”.

56In cross-examination, Mr. Brown acknowledged that the applicant had never locked anyone in the refrigerator/cooler and indicated that you cannot lock anyone in the refrigerator. Mr. Brown stated that the applicant had closed the door on another employee and the employee was “a little upset” as she had claustrophobia. There was no suggestion in Mr. Brown’s evidence that the applicant’s conduct was intentional.

57I also heard from Ms. Lamoureux, the accounting and payroll administrator. Ms. Lamoureux appeared to be the instructing client of the respondent as she was present in the hearing room throughout the evidence of Mr. Brown and Mr. Lochhead. While no witness statement for her was filed during the pre-hearing disclosure, in response to the request to amend the Application and a request for production, the respondent stated that if the requests were granted, it would need to call Ms. Lamoureux to give testimony on the “background of the company, its policies, procedures and staffing including policy and procedure regarding privacy and discussion of staff performance” and Mr. Lochhead’s authority to offer positions. No witness statement was filed prior to the hearing; nevertheless, in opening statement, the respondent indicated its intention to call Ms. Lamoureux, again describing her evidence as what appeared to be background evidence including the policies of the corporation, the record of employment and the work and training of Mr. Brown. It was only on the second day of hearing, after the applicant’s evidence, that a witness statement was produced referencing specific evidence about Mr. Brown contacting Ms. Lamoureux to discuss the applicant prior to the termination. This late disclosure led to the interim ruling referenced in paragraph 7 above.

58Ms. Lamoureux stated that by training she is a payroll compliance practitioner but that within the company she is the person to go to first on human resources issues. Ms. Lamoureux testified that Mr. Brown contacted her approximately one week before the applicant was terminated and identified areas of concern. Ms. Lamoureux stated that Mr. Brown had advised that “most importantly” the applicant was calling in for her closing shifts (i.e. not working them but trying to have other employees take these shifts). Ms. Lamoureux also recalled that Mr. Brown stated that there seemed to be animosity between the applicant and the other supervisor and they were arguing to the point that it was causing issues for other employees and that employees were complaining to him (including one employee stating that she did not like the way she was spoken to by the applicant and a second employee actually talked about wanting to quit because of how she was spoken to). Ms. Lamoureux stated that Mr. Brown told her that he had not started progressive discipline but had spoken to the applicant.

59Ms. Lamoureux stated that she advised Mr. Brown that perhaps it was time to start progressive discipline but if Mr. Brown felt that the applicant was “poisoning his working environment” he had a duty to protect all his staff and he could let the applicant go with notice or pay in lieu of notice and that given the circumstances the latter was probably best. Ms. Lamoureux said that Mr. Brown stated he would think about it.

60On the following Monday, Ms. Lamoureux testified that she got a call from Mr. Brown stating that he had terminated the applicant’s employment and asking her to provide pay in lieu of notice. She also stated that Mr. Brown indicated that a repair bill would be sent as the applicant’s boyfriend had broken the door at the store after the applicant was terminated. The allegation that the applicant’s boyfriend had broken the door at the store was not in Mr. Brown’s evidence. Mr. Lamoureux told Mr. Brown to document everything and to send it to her “just in case something came of this”. Ms. Lamoureux stated that Mr. Brown also told her that when he told the applicant she was terminated, she stated that she had a legal proceeding with another employee and therefore he could not fire her.

61Ms. Lamoureux states that she called Mr. Lochhead and asked him if he aware of the termination and that Mr. Lochhead said he was as he had gotten phone calls that day and all weekend from either the applicant or her boyfriend.

62In cross-examination, Ms. Lamoureux denied that the conversation with Mr. Brown about his concerns a week before the termination was made up although she could not offer an explanation as to why a witness statement was only produced on the second day of hearing.

63Finally, Mr. Lochhead testified about his knowledge of the termination. Mr. Lochhead testified that he heard that the applicant was terminated from a consultant but did not hear from anyone else, contrary to the evidence of Ms. Lamoureux and the applicant. He specifically denied receiving a telephone call from anyone. Mr. Lochhead initially testified that he was not employed at Toppers Pizza at the time of the termination and only learned of the termination in October 2014 when the hearing started. In cross-examination, Mr. Lochhead changed his testimony when he was shown a document addressed “To whom it may concern” regarding the applicant, dated October 14, 2013, that he had signed. This document contained a number of statements including that there was no harassment against the applicant; all employees have been treated equally and fairly in the work place; that no one was aware the applicant was pregnant; and that the applicant was given the opportunity to supervise but was not capable of doing so due to not having the proper leadership skills even after she was “trained and coached daily”.

64Mr. Lochhead stated that he prepared the statement because Ms. Lamoureux asked him to and he could not remember whether he was asked to address certain issues or whether her direction was open-ended. He also could not recall what he was referring to when he stated that the applicant was trained and coached daily. He also acknowledged that he made assumptions about some of the points mentioned including that no one was aware the applicant was pregnant and that there was no harassment.

Findings

65In considering all of the evidence about the termination meeting and the alleged performance issues leading up to the termination, I prefer the account of the applicant to that of Mr. Brown.

66There is no objective evidence of either account, so ultimately, my decision is based on my assessment of the testimonial evidence. I find that the applicant’s evidence that she was called into a meeting with Mr. Brown, asked for confirmation that she is pregnant, and then told by Mr. Brown “I guess we are going to [have to] part ways” to be reliable and credible for the following reasons.

67I found no reason to doubt the applicant’s evidence. I do not find it improbable that in a small workplace comprised mostly of students where many staff appeared to be a first-name basis, disclosure of a pregnancy could come to the attention of the manager within a matter of days. Apart from the evidence of not being improbable, I found the applicant’s account of the meeting and the alleged performance issues internally consistent and relatively detailed which lent credibility to her account. As a witness, the applicant appeared to be measured and candid in her evidence – for example, while she maintained she was asked if she was interested in the manager job in Milton, she acknowledged that she did not know if Mr. Lochhead had the authority to offer her a job. Similarly, she readily acknowledged that she did not answer Mr. Brown’s message about the keys, which I found did not reflect positively on her response to the termination but was indicative of candour in her evidence. Further, in recounting the events, the applicant acknowledged that she did not see eye to eye with the other supervisor and provided examples of their disagreements and acknowledged that there had been a “driver’s discussion” about swearing (these acknowledgements lent credibility to her denials about other issues).

68In contrast, I had a number of concerns with the evidence proffered by the respondent regarding the termination meeting and its position that the sole reason for the termination was based on poor performance. I would note that the respondent did not challenge the submission in final argument that the applicant had received a positive performance evaluation on June 18, 2013 (which in my view is evident from the applicant receiving a pay increase), so any allegation by the respondent of concerns about her performance would be confined to the period between the date of the evaluation and the date of her termination on September 14, 2013.

69While the respondent attached significance to the August 2013 store visitation report, submitting that it “precipitated” Mr. Brown’s actions, I do not find this submission persuasive. In general, I have concerns about the reliability of the report given the fact that Mr. Lochhead could not explain one of his comments in the report and given Mr. Lochhead’s general difficulties with recalling events related to the Application. However, even accepting the veracity of the report, I find that I cannot reasonably conclude that the store visitation report precipitated Mr. Brown’s actions as argued by the respondent. There was no evidence that the report was discussed at the time it was created (either between Mr. Brown and Mr. Lochhead or Mr. Brown and the applicant). Further, there was no evidence from Mr. Brown that it factored into his decision-making regarding the applicant’s status. In recounting the circumstances leading up to the termination, Mr. Brown did not mention the report until his counsel asked him if the views expressed in the report were consistent with his own views (which I found was a leading question and which to some degree discredited the response). Accordingly, even accepting that as of mid-August, Mr. Lochhead formed the opinion during a site visit that the applicant was not suited to being a supervisor, I do not view this opinion as influencing in any discernable way Mr. Brown’s actions in terminating the applicant a month later.

70With respect to the respondent’s position, in general terms, I was troubled by what appeared to be evolving or shifting reasons as to the performance reasons underlying the applicant’s termination. For example, during opening statement, the respondent identified the reasons as including throwing equipment, which was never referenced in the evidence. Further, the applicant was cross-examined on issues which were either not mentioned by Mr. Brown (for example, yelling at workers in a negative manner) or were mentioned in a different manner (for example, the refrigerator/cooler incident referenced at paragraph 42 above). This shifting of the respondent’s position negatively impacted on my assessment of the credibility of the respondent’s position.

71More specifically, I did not find Mr. Brown’s account of the meeting and his purported reasons for firing the applicant to be credible or reliable in the circumstances for a number of reasons.

72First, while Mr. Brown relies on performance issues in the period leading up to the termination as the explanation for the termination, I did not find the evidence about the performance issues credible insofar as I could reasonably accept that these were the sole reasons why the applicant was terminated.

73Mr. Brown did not follow the respondent’s progressive discipline policy which made no sense to me given his assertion that the performance issues were what led to the decision to terminate the applicant. I would expect that most, if not all of the transgressions identified – for example, re-assigning a closing shift, expressing a disagreement with the other supervisor – would have been issues that could have been potentially corrected through progressive discipline. While some employers do not have a progressive discipline policy which may explain why progressive discipline was not followed, the fact that this respondent has such a policy raises a question of why the policy was not applied in this case. The answer appeared to be given by Mr. Brown when he said it was “just a whole lot of little things that culminated”. I view this response as minimizing the significance of the issues.

74On the issue of closing shifts, Mr. Brown stated that the applicant gave away some of her shifts without him knowing and stated in cross-examination that he “spoke to her numerous times” about this, but acknowledged he never gave her a written warning. Notably, the applicant testified that she received no oral warnings and was not challenged on this evidence in respect of closing shifts or given an opportunity to respond to the allegations that she was warned about giving away her shift. However, even assuming this was an issue of concern and that Mr. Brown spoke to the applicant about it and that his speaking to the applicant about it is properly viewed as a verbal warning, there was no explanation why it did not result in an escalated response (other than as mentioned above) if it was so problematic. Again, if there was no progressive discipline approach that would be an explanation, but in this case there was a policy.

75Mr. Brown did appear to attach significance to two issues – his purported observation of video footage of the applicant and the alleged negativity that the applicant was causing in the workplace – but I also had difficulty accepting that these issues actually occurred or were so significant to the respondent that termination was believed to be necessary.

76The video footage was not preserved which I found problematic given that the applicant had indicated that she would see the respondent “in court” and Ms. Lamoureux allegedly advised Mr. Brown to document everything. Notably, Mr. Brown himself appeared to see the value in documenting the termination meeting given that he wrote about the termination meeting after the fact. Further, when asked why he did not preserve the video, Mr. Brown stated “I don’t have an answer to that”. I draw an adverse inference from the failure to preserve this footage, particularly given Mr. Brown’s characterization that the video incident was one of the “biggest issues”.

77Moreover, I found it notable that Mr. Brown acknowledged that he probably worked with the applicant on September 13, 2013, which based on his evidence would have been after he viewed the video footage given that he testified that he viewed the footage two or three days before the termination. If Mr. Brown was so concerned about the ignoring of a customer and the associated loss of business, I found it did not make sense that he would not mention it to the applicant as soon as he saw the footage so as not to lose any more business.

78On the issue of use of her cell phone, the applicant did testify that she was told to use her cell phone for work issues to keep the store line open; evidence which was not challenged by the respondent and makes sense in the circumstances given that pizza deliveries are part of the business. Mr. Brown stated that he was unable to recall whether or not he directed the applicant to do this.

79As for the alleged negativity in the workplace, I found the limited particulars given problematic. While Mr. Brown testified that he had to terminate the applicant because he “felt” that he would lose a bunch of people, he could only provide particulars of one incident which supported his opinion: an employee stating that she could not take the “friction” between the applicant and the other supervisor (who was identified). However, I did not find that this example supports the claim being made given the alleged complaint did not attach any particular responsibility to the applicant (as opposed to the other supervisor) which in my view raises the question, why terminate the applicant? Further, I did not view Mr. Brown’s oral evidence (where he acknowledged that no one said they were going to quit) as consistent with his claim in his write-up after the termination that “another staff was thinking about leaving because of her (Yvette’s) behaviour” or his oral evidence about what he said to the applicant in the meeting about more than one staff person (“people were threatening to leave” and he “couldn’t have her in the store any longer”). These discrepancies undermine the credibility of the reasons being advanced. Finally, the fact that Mr. Brown could only think of the one example of negativity was telling in and of itself and another reason why I did not find the allegation of the applicant creating negativity in the workplace credible.

80Further, there were aspects to Mr. Brown’s account which I found improbable. Mr. Brown testified that the applicant stated that legally, he could not terminate her because she had a legal proceeding against the other supervisor. There is no evidence that there was any other legal proceeding against the other supervisor (the applicant denied there was) and it seems unlikely to me that such a comment would be made in the absence of such a proceeding. The applicant’s account that she said to Mr. Brown that he could not legally terminate her (after he told her that they would have part ways after she confirmed her pregnancy) seems more in harmony with what is reasonable and probable in the circumstances.

81In assessing the evidence, I have considered Ms. Lamoureux’s evidence that Mr. Brown consulted with her and discussed the issues described but did not find this evidence credible. I found that the late disclosure of the evidence in the hearing problematic, particularly given the absence of any explanation for the late disclosure. When asked in cross-examination, Ms. Lamoureux denied that she made up the conversation but stated that she did not know why it was not previously disclosed. In addition, while the respondent submitted the reasons discussed with Ms. Lamoureux were the “same reasons” given by Mr. Brown in his evidence, I did not find the evidence was consistent. For example, Mr. Brown testified to negativity in the workplace with the example being the friction comment referenced above. In comparison, Ms. Lamoureux testified that Mr. Brown told her that “employees” were complaining to him including one employee stating that she did not like the way that she was “spoken to” and a second employee saying she wanted to “quit because of how she was spoken to”. Mr. Brown did not testify about employees complaining about how they were spoken to.

82Finally, to the extent Mr. Lochhead provided any evidence about the termination, I did not find it reliable. Mr. Lochhead’s recollection was poor and in any event, I do not view a document prepared a month after the termination and after the respondent had been advised of the Application to be reliable evidence of the circumstances surrounding the termination. This is particularly the case where Mr. Lochhead himself indicated that he could not recall how he came to address the issues highlighted and “assumed” some of the claims he made.

83I therefore accept that during the meeting on September 14, 2013, Mr. Brown asked the applicant about the rumour that she was pregnant and when the applicant acknowledged that it was true, Mr. Brown stated that “I guess we are going to [have to] part ways”. I do not find that performance issues were highlighted in the meeting in the manner testified to by Mr. Brown. Further, I do not find the performance concerns advanced by Mr. Brown as the sole explanation for the applicant’s termination to be credible.

DECISION AND ANALYSIS

84The relevant provisions of the Code provide as follows:

3. Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

4. 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, age, record of offences, marital status, family status or disability.

5. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part

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.

85The issue in this case is whether or not pregnancy was a factor in the applicant’s termination and if so, what is an appropriate remedy.

86The applicant bears the onus of proving on a balance of probabilities that her pregnancy was a factor in the decision to terminate her employment. She is not required to prove that it was the sole or even main factor in her termination. Once the applicant has met her evidentiary burden to establish a prima facie case of discrimination, the evidentiary burden shifts to the respondent to refute the applicant’s evidence and/or to establish a non-discriminatory reason for its conduct. Notwithstanding, the onus of proving discrimination remains on the applicant throughout: see Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593.

87In this case, based on the findings made above, I accept that the applicant has made out a prima facie case of discrimination.

88The applicant received a positive home pregnancy test, advised other employees that she was pregnant and then was called into a meeting with her manager, at which time, the manager asked her about the pregnancy rumour and after she confirmed it was true, terminated her. In my view, the reasonable inference to be drawn from this inquiry, which I accept was made, followed by the statement of having to “part ways”, is that Mr. Brown was aware of the applicant’s “pregnancy” and that pregnancy was a consideration in the termination insofar as once the pregnancy was confirmed, the applicant was terminated. The respondent did not provide any alternative explanation as to why the comments would otherwise be made in the termination meeting.

89I further find that the respondent has not provided a credible explanation demonstrating, on a balance of probabilities, that its decision to terminate the applicant was solely because of “issues” that arose after the June performance evaluation and that pregnancy played no role in the decision to terminate.

90I have found that the respondent did not raise performance issues in the termination meeting in the manner described in the testimony of Mr. Brown. Further, for the reasons summarized above, I do not find that the evidence on the alleged performance issues is credible. It may be that the respondent had some concerns about the applicant’s work performance, but based on the evidence presented, the respondent has not been able to establish that there was a non-discriminatory reason for the applicant’s termination i.e. performance issues, such that pregnancy was not at all a factor in the decision to terminate.

91In reaching this conclusion, I have considered the respondent’s argument that even if Mr. Brown raised the query about the applicant’s pregnancy, I should not find discrimination given Mr. Brown’s evidence that he believed that pregnancy is a “benefit” to the respondent because of notice of a pregnant employee’s leaving and the return of a trained employee (although he did acknowledge that a maternity leave would make someone less available). While I have some scepticism about this evidence, even assuming Mr. Brown genuinely believes this in some instances, I am not convinced that in this case, there is sufficient evidence upon which I can find that Mr. Brown viewed the applicant’s pregnancy as a benefit. Mr. Brown stated that he hired the applicant into the kitchen initially because he wanted someone who was available to work “any” time. Further, it would appear that Mr. Brown terminated one of the drivers because he was not available (see para. 53 above and the evidence regarding the driver with three jobs which made it not “beneficial” to keep him there). Notwithstanding Mr. Brown’s opinion, his actions based on the evidence presented appear to suggest otherwise.

92In reaching this conclusion, I do not find that the reference to other employees of the respondent having taken maternity leave to negate my finding of discrimination in this particular case. To the extent Mr. Brown gave evidence about other employees of the respondent, he did not explain the employees’ positions or circumstances. While Ms. Lamoureux gave evidence of two such employees who reported to Mr. Brown during his time as a district manager, the circumstances of the two employees were different to that of the applicant. The employees involved were managers of store locations and not supervisors or drivers reporting to a manager. Further and in any event, I am persuaded in this case on the strength of the evidence that Mr. Brown terminated the applicant, at least in part, because of her pregnancy.

The Liability of the Respondent

93In final submissions, the respondent raised for the first time that if the Tribunal concluded that Mr. Brown did the things complained about, then the applicant cannot bring her claim against the named respondent because there can be no vicarious liability on the part of the named respondent for the action complained about. In support of its submissions, the respondent relied on the Tribunal’s decision in Baker v. Twiggs Coffee Roasters, 2014 HRTO 460 at paras. 166 and 167, and the reference to section 46.3 (1) of the Code and the Divisional Court’s statements about the meaning of this provision in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876.

94Subsection 46.3 (1) states:

For purposes of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

95In Farris at para. 32, in commenting on the provision, the Divisional Court stated:

Thus under the Code, a corporation cannot be held vicariously liable for the acts of its employees, agents or officers when it comes to sexual harassment. Those complaints are to be brought against the individual who actually committed the harassment”.

96The Court further stated that if the individual responsible for the harassment is a directing mind of the corporate respondent, then the corporate respondent can also be held liable for the individual’s acts. See Farris at para. 33 and the cases cited in that paragraph.

97In this case, I find that the respondent is liable for the actions of Mr. Brown. I am not of the view that the action of terminating the applicant should be characterized as one of harassment, but rather one of discrimination and is therefore caught by subsection 46.3(1) of the Code.

Remedy

98Section 45.2(1) sets out the Tribunal’s remedial authority:

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.

99In final submissions, the applicant requested that the Tribunal order a number of compensatory remedies, including lost income and benefits for 16 months and $25,000 in general damages for the emotional distress; plus non-compensatory remedies including a letter of recommendation and a requirement that if contacted by third parties, the respondent would restrict its remarks about the applicant. In her opening statement the applicant had also sought reinstatement and various public interest remedies including that a copy of the Code be posted on the premises and on the respondent’s website and training for all employees and managers on human rights. In the Application, the applicant also sought a letter of apology.

100I address each of these requests below.

The Request for Reinstatement

101The applicant seeks reinstatement to the position of manager or in the alternative the position of supervisor with the respondent. This remedial request was sought by way of amendment to the Application, which amendment was granted by the Tribunal prior to the commencement of the hearing: 2014 HRTO 1438.

102During the hearing there was limited evidence led or elicited that appeared to relate to the request for reinstatement. The applicant testified that she still wants to go back to work and would accept an offer of a manager or other job with the respondent but that she does not want to be “under the same roof” as Mr. Brown. However, the only evidence elicited about vacancies since the applicant was terminated related to the “manager” position, a position never held by the applicant. Further, when addressing the impact of being fired, the applicant expressed that she is still “away from people” in her existing job because it is what she needs at the moment because of her depression and anxiety.

103The applicant did not restate her request for reinstatement during final submissions and no party provided argument on the issue in their final submissions.

104The Tribunal clearly has the jurisdiction to order reinstatement given that the remedial objective of the Code is to make the applicant whole.

105However, in the circumstances of this case, I do not find it appropriate to order reinstatement. The evidence in respect of reinstatement was limited. As indicated above, the applicant testified that she did not want to work with her former manager again. While that in and of itself may not preclude reinstatement to employment with an employer with multiple locations, there was limited, if any evidence given about the other locations including whether or not the supervisory position exists in other locations nor did the applicant address the issue of re-location. Further, other evidence given appears to suggest that as of the date the applicant testified (which is the only evidence available to the Tribunal) she did not consider herself able to work in a customer service position. In light of this evidence and the absence of final submissions from either party on the request, I decline to order reinstatement.

The Lost Income and Benefits Claim

106The applicant seeks income for a 16-month period based on the halfway point of the range for a manager’s job (which was estimated as $36,000 per year) minus the applicant’s income received in the period and $1,000 calculated on a yearly basis as compensation for benefits. The period appears to be based on an estimate of the period from the date of termination to the conclusion of the hearing. The applicant submits that that but for the discrimination, the applicant would have been promoted to a manager position and therefore should receive lost income and benefits calculated on the basis of a manager’s salary and benefits. The respondent submits that the wage claim should be minimal given the applicant’s evidence that she was only available to work for the period September 14, 2013 until September 24, 2013, when she had to undergo surgery for medical reasons related to her pregnancy. The respondent submits that even in that period, the applicant was undergoing tests which would not be “conducive” to working. The respondent further submits that following the surgery, the applicant was then unavailable to work for medical reasons, received employment insurance benefits and once she was fit to return to work, she was re-employed immediately so no further wage payment should be ordered. The respondent estimates any wage loss as around $500.00.

107There is no basis for awarding a remedy for lost wages and/or benefits based on a manager’s compensation package. The applicant never held the manager position nor did the evidence support a finding that the applicant was offered a job as a manager. As a result, I find any compensatory order for lost wages and/or benefits should be based on the rates and terms applicable to the positions previously held by the applicant – namely supervisor and driver. Given that there was no evidence that benefits were paid to the applicant in either role, the order is limited to wages and other applicable payments.

108While the respondent did not break down its calculation of its estimate of the wage loss in final submissions to indicate whether or not it included an amount attributable to both positions held by the applicant, the respondent appeared to be taking the position in the hearing that the driver work was done as an independent contractor. The respondent cross-examined the applicant on the nature of her employment and elicited evidence from the applicant that for her driver work, the applicant signed an agreement calling her an “independent contractor” and that she was paid “cash” for her driving shifts and that the amounts for her driving shifts were excluded from insurable earning calculations for employment insurance purposes. To the extent the respondent takes the position that the work should be treated differently, I disagree. The applicant should be compensated for her wage and other losses whether she was an employee or an “independent contractor”. The Code equally prohibits discrimination against women based on pregnancy with respect to contracts (s. 3 and s. 10(2)). Further, the Tribunal has held that the Code’s prohibition against discrimination “with respect to employment” in s. 5 covers a broad range of workplace relationships, including sub-contractors and independent contractors (see Garofalo v. Cavalier Hair Stylists Shop Inc., 2013 HRTO 170 at para. 169 and the cases cited therein).

109The applicant’s evidence in the hearing was more or less consistent with the position being advanced by the respondent, although not in the amount that she believed that she was out of pocket. The applicant testified that she was able to work for a brief period following termination. While the applicant’s testimony varied slightly on the dates, in cross-examination she stated that she was available for the time period reflected in the respondent’s submissions, i.e. September 14 to 24, 2013. The applicant testified that she estimated that she lost around $1,000.00, although she did not particularize how she came up with that amount. After September 24, 2013, the applicant clearly stated that she was not able to work until the end of December because of her terminated pregnancy. Once recovered, the applicant immediately gained employment elsewhere, earning $10 per hour, which is not a significantly different rate than the supervisor rate, albeit lower. The applicant did not state in her evidence that she continued to have losses beyond her return to work in January 2014 nor did she provide any details of her losses in the period after September 24, 2013 based on the supervisor and driver positions.

110The applicant’s evidence reflected that while her hours varied, in general on a weekly basis, the applicant worked three (and sometimes four) days a week as a supervisor working approximately 6 hours a day at the rate of $11.25 per hour (i.e. $67.50 per day) and two days a week as a driver working 8 hours a day at the rate of $7.25 per hour (i.e. $58.00 per day) plus commissions of $0.85 per delivery. The applicant also received tips from the customers she delivered to. The applicant’s regular days off were Mondays and Tuesdays.

111The evidence presented on commissions and tips consisted of a document that the applicant prepared covering the period October 26 to December 10, 2012 where she recorded her hours, deliveries made and tips received. Using the 24 shifts as a driver since the current respondent took over the store, the applicant recorded having made 187 deliveries in 24 days (or an average of 7.79 deliveries per shift, which calculated at the rate of $0.85 per delivery is an additional $6.62 per shift) and $687.40 in tips (or $28.64 in tips per driving shift). The applicant testified that she received the hourly rate and the commissions from the respondent and tips from customers. The applicant testified that the respondent relied on this document to pay her the hours worked and testified these amounts were representational of what she made throughout her employment as a driver.

112In light of this evidence, I calculate the lost wages as $549.78. Based on the calendar for 2013 and the applicant’s evidence as to regularly scheduled days and days off, but for the termination, the applicant would have worked an additional three driving shifts (calculated on the daily or shift rate of $58.00 plus $6.62 for deliveries plus $28.64 for tips) and four shifts as a supervisor (calculated on the rate of $67.50 per shift). However, given that the applicant received $168.75 as pay in lieu following her termination, the respondent is ordered to pay $381.03.

Compensation for injury to dignity, feelings and self-respect

113In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal summarized the principles to be applied in determining compensation for injury to dignity, feelings and self-respect. At paras. 52-55, the Tribunal stated:

…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 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.

These principles are not intended to comment on how the Tribunal would deal with a case where medical evidence shows an extreme degree of suffering in comparison to the nature of the event, a situation which I leave for another day.

114The applicant seeks $25,000.00 in general damages. The applicant’s evidence on impact was largely unchallenged.

115The applicant stated that after the termination, she was very upset and cried a lot. The applicant states that she has very negative thoughts about the situation because she had high hopes about the future as she felt that someone had given her a “golden ticket” to a career and then it was gone.

116The applicant states that she was diagnosed with depression by her doctor and went on medication. The applicant states that both losses (the job and her pregnancy) made her feel useless. The applicant stated that she had lost other pregnancies previously and had felt depressed but this time there was no positive lining as she had no job and she became extremely depressed. The applicant reiterated that she had felt that she was “going somewhere” with her career and now it was not going to happen. The applicant states it was very confusing to go through that when her body rejected another baby.

117The applicant states that she returned to work the first week of January 2014 and that she now works for an employer earning $10 per hour. The applicant states that the job is not in customer service because the circumstances of her termination and the loss of the pregnancy (which she characterized as a loss “times 2”) caused depression. The applicant states that she needs to conquer her depression before she can put on a face, smile and represent a company again.

118Dr. Razvi, the applicant’s doctor, testified that the applicant underwent treatment for an ectopic pregnancy and on September 24, 2013, the applicant was feeling very depressed about her work situation as well as losing another baby. Dr. Razvi confirmed that he had diagnosed the applicant with depression and that it was a reactive depression to a stressful situation. His medical notes refer to ectopic pregnancy and adjustment disorder and specifically mention that applicant feeling very depressed about also recently being fired from her job. On September 24, 2013, Dr. Razvi referred the applicant to a mental health worker (which she did not follow up on) and on November 11, 2013, she was prescribed medication which is an anti-anxiety and an anti-depressant. The doctor acknowledged that the applicant has had a history of depression dating back to her teenage years but stated that this was the first time he had prescribed medication since becoming the applicant’s family physician in 2011 although she had lost two other pregnancies during this period. The doctor also confirmed that he continued re-filling the prescriptions for the medication for almost a year. The doctor stated that he saw the applicant a week before he testified and that at that time, the applicant reported feeling significantly better.

119I find that the applicant was significantly impacted by the respondent’s conduct. The applicant had worked with this employer (or its predecessor) for about 18 months. By objective measures, it did appear that the applicant was on a definite career path as she had gone from being a pizza delivery driver to a supervisor in a kitchen. The respondent’s actions in terminating the applicant brought this to an end at least with respect to this employer.

120The respondent’s discriminatory conduct was deliberate and occurred at a very vulnerable time for the applicant. While I acknowledge that after her termination, the applicant was also dealing with the fact of and recovery from the termination of an ectopic pregnancy, I accept that the impact was severe such that the applicant went on medication for the first time in recent years to address her depression notwithstanding that she had had other miscarriages during those recent years. I also accept that the impact was a significant duration stretching near to the time the applicant testified. While the applicant testified that she was continued to be depressed, the doctor’s evidence that she had reported feeling significantly better and that she did not appear to be suffering from depression suggests that the applicant’s mental health had improved as of October 2014.

121In reviewing the other decisions of the Tribunal where pregnancy was found to be a factor in an applicant’s termination, the awards for injury to dignity, feelings and self-respect have generally ranged from $10,000 to $20,000. See, for example, Bickell v. The Country Grill, 2011 HRTO 1333 ($15,000), Graham v 3022366 Canada Ltd., 2011 HRTO 1470 ($20,000), Maciel v. Fashion Coiffures, 2009 HRTO 1804 ($15,000), Purres v. London Athletic Club (South) Inc., 2012 HRTO 1758 ($10,000), Guay v. 1481979 Ontario, 2010 HRTO 1563 ($10,000), Peart v. Distinct HealthCare Services Inc., 2013 HRTO 305 ($12,500), and Korkola v. Maid Day! Maid Day! Inc., 2013 HRTO 525 ($13,000).

122While I have been mindful of these and other awards, I also accept that every case turns on the particular evidence and findings of the Tribunal. In this particular case, having regard to my findings and in particular, the importance of the job to the applicant and the impact of the job termination on the applicant that I have accepted, I award $20,000.00 as monetary compensation for injury to the applicant’s dignity, feelings and self-respect. This amount should be paid to the applicant within 30 days of the date of this Decision.

Remedies for Future Compliance

123During opening statement, the applicant requested certain “public interest” remedies, namely that training be provided to the employees and managers of the respondent in human rights (without defining what locations would be encompassed in her request) and that the Code be posted on the respondent’s website and in its premises. Neither party made any submissions on these requests at the conclusion of the case.

124In the circumstances of this case, I find that the respondent’s manager at the Georgetown location would benefit from training on his/her obligations under the Code. Accordingly, I order that the manager of the Georgetown location complete the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at http://ohrc.on.ca/en/learning/human-rights-101-2014-ed) or equivalent training on basic principles of human rights, and confirm to the applicant’s counsel within 60 days of this Decision that the manager has done so. Based on the limited evidence and absence of any submissions, I decline to extend training to all managers and employees.

125I also decline to make the additional order of a posting of a copy of the Code.

Other Remedies Sought

126As indicated above, the applicant also requested a letter of apology in the Application. In addition, the applicant sought a letter of reference (along with a restriction of what would be stated about her) for the first time in her final submissions.

127I am not persuaded that it would appropriate to order a letter of apology. In general, the Tribunal has been reluctant to order apologies pursuant to the remedial powers under the Code for the reason that such orders are viewed as inappropriate or an ineffective remedy and raise potential freedom of expression concerns. See, for example, Abdallah v. Thames Valley District School Board, 2008 HRTO 230.

128As for the letter of reference, even assuming the Tribunal would be inclined to entertain such a remedial request, given the lateness of the request and the limited submissions, I am not inclined to make this order in the circumstances of this case.

ORDER

129The Tribunal orders as follows:

1. Within 30 days of the date of this Decision the respondent 2347656 Ontario Inc. o/a Toppers Pizza Georgetown shall pay to the applicant $381.03 as monetary compensation for her wage loss, less any required statutory deductions and applicable taxes.

2. Within 30 days of the date of this Decision the respondent 2347656 Ontario Inc. o/a Toppers Pizza Georgetown shall pay to the applicant $20,000.00 as monetary compensation for damages to her dignity, feelings and self–respect.

3. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision calculated in accordance with section 129 of Courts of Justice Act, R.S.O. 1990, c. C.43.

4. Within 60 days of the date of this Decision, the respondent shall have its manager at the Georgetown location complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at http://ohrc.on.ca/en/learning/human-rights-101-2014-ed) and confirm to the applicant’s counsel that the manager has done so.