HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
H.T. and J.T. as represented by their litigation guardian, S.T.
Applicant
-and-
ES Holdings Inc. o/a Country Herbs
Respondent
DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: H.T. v. ES Holdings Inc. o/a Country Herbs
APPEARANCES
H.T. and J.T. as represented by their litigation guardian S.T., Applicants
Zahra Binbrek, Counsel
ES Holdings Inc. o/a Country Herbs, Respondent
Michael Pass, Counsel
Introduction
1These Applications allege discrimination with respect to employment because of creed and association contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). By amendment at the outset of the hearing each of the Applications also alleges reprisal.
2The applicants, J.T. and H.T. (“J.T.” and “H.T.”), worked for the respondent full-time. The respondent is a vegetable and herb grower and importer. H.T. mainly packed herbs into smaller packages, while J.T. mainly made boxes into which the packaged herbs were placed for shipping. The applicants’ bosses were Imraan Esmile (“Mr. Esmile”) and Lalli Singh (“Ms. Singh”), who were, respectively, the president and vice-president of the respondent.
3The applicants are Christian Mennonites who celebrate a religious holiday called Himmilfaurt (“the holiday”). On May 29, 2014, when they did not attend work because of the holiday, the respondent fired them. J.T. alleges he was not scheduled to work that day and was fired solely because of his association with H.T. H.T. alleges her firing discriminated against her on the basis of creed and that it was the respondent’s reprisal against her for not attending work on the holiday.
4The respondent alleges it fired the applicants in accordance with its attendance policy (“the policy”). The respondent alleges the applicants knew of the policy and knew they could be terminated if they failed to comply with it by either coming in to work on the holiday or at midnight to make up the hours they missed for the holiday.
5The applicants, their mother, S.T., who acted as their litigation guardian, and Ms. Singh attended the hearing and gave evidence.
preliminary issue
6The respondent did not object to the applicants’ request to amend the Applications to include the ground of reprisal, and this request was granted.
the law
7The relevant provisions of the Code are as follows:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of […] creed.
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
- A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.
evidence
8Ms. Singh testified the respondent is a grower and importer of vegetables and herbs whose customers primarily are in Toronto. The respondent fills about 70 orders of various sizes a week. For one grocery store client, for example, the respondent does between 800 and 3000 “pieces”, worth between $8,000.00 and $25,000.00. The respondent has a consistent number of orders a week, which they receive between 12 and 20 hours prior to expected delivery. The maximum expected delivery time is 24 hours. Ms. Singh testified the products are perishable and time-sensitive.
9She testified the respondent employs between 28 and 35 employees a season, most of whom are German Mennonites. At the relevant time, the respondent employed 23 people.
10In order to fill its orders, the respondent needs all staff on Mondays and Thursdays because consumers shop mainly on weekends. Tuesday deliveries are to restock after the weekend, while Thursdays’ stock the stores for the weekend. Orders on the other five days can be flexed.
11On April 3, 2014 when she was 16, H.T. began working for the respondent full-time between 40 and 50 hours five days per week between Monday and Saturday. It was a good, simple, light job, and most of the approximately 20 workers were of a similar age. She did not think anyone worked on Sundays.
12She testified Thursdays were her longer day of work because the respondent had bigger orders to fill that day. Fridays were not as long because they would make packages that day for the following week so they would not have to do them on Monday, although she later testified the Friday work was to ensure they would not have as much work to do on Saturday. She acknowledged that when she asked for a Saturday off to attend a CPR course, it was permitted.
13On April 16, 2014 when he was 14, J.T. began working part-time for the respondent. By May 5, he was working three to four days a week, between 30.5 and 37 hours a week, although one week he worked 14.5 hours.
14J.T. testified he was very excited to have the job because he wanted to save for a car and help his family pay bills. He liked the work because it was full-time, he was on a farm and he was outside all day. Mainly he made boxes, but he also did some planting. He never worked Sundays or Thursdays.
15Although the work was part of the applicants’ school program, through which they do both book and work credits to achieve their Grade 12, S.T. testified they intended to continue working at the respondent’s even after they finished their schooling.
16The applicants both testified their religion was very important to them, and most of their friends share their religious beliefs. They try to go to church as often as possible. On religious holidays, they go to church and gather with friends and family.
17Both S.T. and Ms. Singh agreed that sometime after H.T. began working at the respondent’s, S.T. told Ms. Singh that 9:30 or 10:00 p.m. was late enough for her to work and she would not allow H.T. to work longer than that, and that Ms. Singh agreed to that. Prior to their firing, neither of the applicants had worked past 10 p.m.
18S.T. testified that about three weeks before the holiday, she told the applicants to tell the respondent they could not work on the holiday on Thursday, May 29. J.T. testified he was not scheduled to work, although Ms. Singh testified he was. J.T. stated he accompanied H.T. to see Ms. Singh so he could witness the conversation. H.T. testified Ms. Singh did not answer her when she advised she could not work, but nodded. The applicants then walked away.
19About a week later, S.T. told the applicants to speak with the respondent again about not coming to work on the holiday. The applicants both testified they spoke to Ms. Singh again because after the first conversation, they were unsure of the outcome. H.T. testified J.T. was present so he could listen to the conversation and make sure she told Ms. Singh she could not work that day, but that he was not scheduled to work that day.
20The evidence of Ms. Singh and the applicants differed with respect to why a second conversation between her and H.T. took place, but there is no dispute that there was a second conversation. Ms. Singh testified the second conversation took place a couple of days after an employee meeting and about two weeks before the holiday in which the employees were told they had to either come in on the holiday or at midnight or they could be fired. H.T. denies ever being told she could be fired for not coming in. H.T. also testified the only announcement made about the holiday was two days before it, while Ms. Singh testified this announcement was just a reminder.
21H.T. testified that during the second conversation with Ms. Singh, Mr. Esmile was present, and she advised them they could not come in on the holiday because it was a religious holiday. Ms. Singh testified H.T. told her she could not work on the holiday because her mother would not drive her there, and Ms. Singh advised her it was the respondent’s policy. H.T. testified she did not know there was an attendance policy.
22Ms. Singh testified the respondent’s attendance policy was posted on the wall, but it was not produced at the hearing. The policy stated that two weeks’ notice was required for holidays and 24 hours’ notice for a day off. If an employee wants a day off that is not a Monday or a Thursday, the employee is to try and switch with another employee. An employee is not allowed to take time off on a Monday or Thursday. She testified everyone knows that because it is in the attendance policy. Ms. Singh explained that Thursdays’ work gets put on a truck between 1 a.m. and 3 a.m. Friday morning. Orders are not done in advance.
23Ms. Singh testified that when H.T. came to speak to her and Mr. Esmile, Ms. Singh told her she had to be fair to everyone and she had at least another 10 employees with whom she would have the same issue, and therefore she had to follow the policy of no time off on a Thursday.
24Ms. Singh testified there were 11 employees in addition to the applicants who requested the holiday off. Six employees took the holiday off and worked at midnight. The rest came in on the holiday and worked for about 11 hours. Only the applicants would not work either of the options offered to them.
25Ms. Singh testified she had contacted the Labour Board to find out the respondent’s rights as an employer with respect to the holiday. The Labour Board advised the respondent it did not have to give the day off because it was not a statutory holiday. Normally the employees work on statutory holidays. There is a midnight shift only when there is a German Mennonite holiday. Ms. Singh obtained a calendar from a German Mennonite priest so they could make announcements when there was an upcoming religious holiday.
26Ms. Singh testified that the majority of the respondent’s staff is German Mennonite and when there is a religious holiday, she and Mr. Esmile ask them to come in during the day on their regular schedule or at 12:01 a.m. to get the work finished to get the trucks out. If it is not a German Mennonite holiday, the respondent is able to find replacement workers to cover shifts, but when it is a German Mennonite holiday, it is difficult to call anyone in because the bulk of the people in the community are German Mennonites.
27There is no disagreement that Mr. Esmile and Ms. Singh told H.T. the applicants either would have to come in on the holiday during the day or at midnight. J.T. testified that by “midnight” he understood Mr. Esmile meant early morning Friday. H.T. testified there was no discussion of what was expected with respect to the Friday morning shift. H.T. testified she assumed they would still have to work on the Friday after working the midnight shift because if not, they would not be making up any lost time.
28Ms. Singh, in contrast, testified no one was expected to do the midnight shift and a day shift on the Friday. The applicants were not expected to come in at midnight and then also work the day shift on the Friday because there are no orders packed on Fridays. The work done then is advance work for Saturdays.
29On May 27, about two days before the holiday, H.T. sent a text to Mr. Esmile, which she says was sent in response to the announcement in which he told the employees they had to text him to advise if they were coming to work during the day on the holiday or at midnight. She did not talk to her co-workers about the announcement, and she did not know if any of them planned to take the holiday off. J.T. did not recall the announcement. H.T.’s text read:
Hey this is H[..]! I am not going to come in during the day as it is our holiday and we are going to church and my parents are not dropping me off at midnight!
30There was no discussion about the May 27 text when the applicant attended work on May 28.
31Ms. Singh testified both applicants were required at work on the holiday. J.T. was required because the respondent did not have enough boxes made up for the orders. He did not always work on Thursdays because she tried to have him make the boxes up in advance, but it was not always possible because the respondent did not know how many orders they would have. Ms. Singh testified that the work the applicants did was essential. The applicants both worked between 40 and 48 hours a week.
32H.T. testified she felt the respondent was asking them to make a choice between their religion and their employment, and the options given were unrealistic. She testified that in order to be able to come to work at midnight, she would have to sleep during the holiday. She also did not know how she would get to work. In addition, she testified it would be all dark and open there at midnight and anyone could come in.
33H.T. admitted on cross-examination that she assumed Mr. Esmile or Ms. Singh would be there for the midnight shift, and no one gave them the impression they would be there on their own.
34H.T. testified that neither Mr. Esmile nor Ms. Singh told her why they picked midnight. While she denied knowing it was to ensure the delivery trucks got out on time, she testified it made sense. She admitted that generally when she arrived at work, the trucks were gone for delivery, and she packed different orders every day.
35J.T. testified it was dangerous at the respondent’s at midnight, although he agreed on cross-examination he worked in a lighted building. He testified it would not have been an option for him to come in at midnight had he been scheduled to work because it was not an option for his parents to drop him off at that time. In addition, he had to get his homework done. On cross-examination, when asked about work he has applied to since he was fired that might involve working late, he stated he has not considered how he would get there.
36On cross-examination, S.T. testified she objected to the applicants working a midnight shift because they would be out in the country in an unsecured facility alone, which was not safe. She assumed the applicants would be alone because usually there was no midnight shift. It was not an issue for the applicants to make up the time, as long as it was not on a Sunday, but the issue was when they would do so. When asked about the possibility that there was no other time to make up the shift, she testified that was fine because it was the respondent, not her, who wanted the time made up.
37H.T. testified she would have made up the time if it was in the daytime, or she could have spread the work over several days. J.T. testified he would have been willing to make the time up at another time or by staying later on other days. The applicants both testified neither Mr. Esmile nor Ms. Singh discussed these alternatives with either of them.
38Ms. Singh testified that the employees who came in at midnight on the holiday worked for about eight hours. The work was advance work for the orders that go out on Sundays in order that the Saturday hours can be shortened so people can have more of a weekend off. The only time advance work can be done is on a Friday, which is product they receive on Wednesdays. This product lasts longer than the other perishable items they pack. Receiving air freight on a Wednesday is substantially more expensive than receiving it on Sundays, which is when the rest arrives.
39Although Ms. Singh agreed work could be done ahead besides on Fridays, the respondent does not have the manpower. She and her husband already work 60 to 80 hours a week. In addition, certain items cannot be packed in and must be packed the day before shipping. Of the 23 varieties of herbs they ship, about 2 can be packed in advance.
40She testified that on the holiday she and Mr. Esmile worked the midnight shift along with four employees, and the trucks went out a couple of hours late, although she did not disclose the drivers’ log books, which she testified are only used if they have been on the road too long. In addition, the orders went out short of items because they ran out of time. She was not able to advise of the dollar amount the respondent lost, and was not able to advise if it was significant. It would have made a difference if the applicants had come in because the work is all hand labour and every person is vital. Ms. Singh testified if the customers do not get their orders the respondent potentially loses their business, although she was not able to advise if the respondent lost any business because of the trucks going out late and short of items.
41Ms. Singh testified that finding labour is a challenge, but she agreed that despite this the respondent fired the two applicants even though they were happy with their work. She testified it took some weeks to replace them with local kids, but since July, 2014 they hire offshore workers because otherwise they often are short staffed. After firing the applicants she, her husband and her son had to work in the packing room. They lost money because they could not fill the orders. She produced no documents to substantiate the losses.
42Ms. Singh was asked about an apparent difference between the Response and her witness statement with respect to time off. In her witness statement Ms. Singh states that if an employee wants to take a day off, the employee has the option of doing so if they make up the work on their next day off by coming in at midnight and working until the start of the morning shift. In contrast, the Response states that if an employee wishes to take a day off, the employee can do so if they make up the work by coming on their next day off at midnight and working until their orders are completed, or in other words the make-up shift must be completed prior to the start of the following shift.
43Ms. Singh testified they meant that if an employee takes a holiday off, they have to come in at midnight to make up for the work that does not get done, because there are so many holidays. She agreed it does not say either in the witness statement or in the Response that an employee does not have to work the day shift after working a midnight shift, but they do not expect that.
44The applicants did not work on the holiday. H.T. testified it was never an option for her to work that day because her religious beliefs are more important than her job. S.T. testified no one in the family ever worked on the holiday. She did not know if anyone in the wider community did so.
45While the applicants were at church on the holiday, Mr. Esmile called S.T. He asked if the applicants were coming to work, to which she replied they were not. He then asked if they were coming in at midnight and she replied he knew they were not, and he replied they did not have to bother coming in to work anymore. S.T. testified she asked if that applied to J.T. as well because the holiday was his day off in any event, and Mr. Esmile replied that it did.
46J.T. testified when he arrived home from church and found out he was fired, he was sad and disappointed because it was full-time work and he really likes working on a farm. He also was sad and disappointed that he got fired because of his religious holiday.
47H.T. testified that when she found out she was fired, she felt disappointed because she did not have a job after taking a day off for a religious holiday, and because she was saving money for a car and helping her family with the bills, and she then had to look for a new job. She stated she did not understand why she could have a day off to do a CPR course but not have the religious holiday off.
48H.T. testified the loss of her job still affects her to date because if she had not been terminated, she would have that job still. H.T. provided a list of all the places she applied to after being terminated.
Findings and Analysis
49For the most part, this case does not turn on credibility. There was some dispute about:
a. whether or not J.T. was scheduled to work on the holiday;
b. how and when the respondent told the applicants of the requirement to work on the holiday or at midnight;
c. whether or not the attendance policy was in writing; and,
d. whether the applicants were expected to work their normal day shift after working the midnight shift.
50There was no dispute that:
a. sometime after H.T. began working at the respondent’s, S.T. told Ms. Singh that 9:30 or 10:00 p.m. was late enough for her to work, and that prior to their termination, neither applicant had worked past 10 p.m.;
b. H.T. advised Ms. Singh and Mr. Esmile she could not work on the holiday or come in at midnight;
c. H.T. was not given any alternatives except to work on the holiday or come in at midnight; and,
d. the applicants were fired on the holiday.
51The main contentious issue was whether J.T. was terminated because of his association with H.T. or was directly discriminated and reprised against because he was scheduled to work, asserted his right not to work and did not work.
52In order to resolve the credibility issues, I am 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.
53J.T. asserted he was not scheduled to work and he produced a written record of his hours, which in the few weeks he worked prior to termination, show that he never worked on a Thursday. The respondent produced no record of hours to support its position he was scheduled to work that day. In addition, both applicants testified that although J.T. was present in the conversations with Ms. Singh about H.T. not working on the holiday, he was there only to listen and witness the conversations. I note that H.T. and her mother, and to a lesser extent J.T., often used the word “they”, thereby appearing to refer to both applicants when testifying. In my view, the word was used to generalize that “they” as a group of Christian Mennonites could not work on the holiday, and also hypothetically when speaking about options to working on a Thursday, for example, when J.T. testified with respect to his willingness to make up the time. I find it was not used in the sense that J.T. was supposed to work on the holiday.
54The best evidence of whether or not J.T. was supposed to work that day, in my view, is that of J.T. who was entirely credible. His evidence remained consistent throughout that he was not scheduled to work that Thursday and had never worked a Thursday, and his documented hours substantiate this. The respondent on the other hand produced no documentary evidence of J.T.’s schedule, nor did it explain why J.T. would have been scheduled to work on this Thursday when he had not worked a Thursday before this. I find it more likely than not that he was not scheduled to work.
Discrimination Against H.T. on the Basis of Creed
55First, with respect to the discrimination finding, the parties agree that the Supreme Court of Canada’s decision in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees' Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), is the key to my assessment of whether the imposition of the attendance policy on the applicants was discriminatory. The Supreme Court of Canada found in Meiorin that the bona fides of the requirement in question is considered only after a prima facie case of discrimination has been made out. In other words, in this case, H.T. has the burden of establishing that the attendance policy discriminated against her because of her creed. The evidentiary burden then shifts to the respondent to show that it accommodated H.T. to the point of undue hardship. See also: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at paras. 59-69 and Peel Law Assn. v. Pieters, 2013 ONCA 396 at paras. 63-78.
56In the instant case, I find that the expectation that H.T. would work on the holiday in accordance with the attendance policy or be fired was discriminatory on the basis of her creed, because the applicant’s creed prevented her from working on the holiday. The respondent argues H.T. had the option of working at midnight, but I will discuss below, why this was not a reasonable option. In my view, because the policy meant H.T. had to work on the holiday or risk being fired (and was in fact fired from her position with the respondent), she has established a prima facie case of adverse treatment.
57The burden shifts now to the respondent to show that it can justify the adoption of an attendance policy that required H.T. to work on the holiday or to make up the lost shift by working at midnight. For the purposes of this case, and in accordance with the three part test established in Meiorin at para. 54, I am satisfied that the respondent adopted the standard set out in the attendance policy for a purpose rationally connected to the performance of the job and it was adopted in an honest and good faith belief that it was necessary to the fulfillment of the legitimate work-related purpose given the nature of the business and the demands of its customers.
58My analysis therefore focuses on the third factor considered in Meiorin, namely that the policy was reasonably necessary to the accomplishment of the legitimate work-related purpose. To show that the standard is reasonably necessary, the respondent must demonstrate that it was impossible to accommodate the applicants without imposing undue hardship on the respondent. See, Meiorin, at para. 54 and 72. The Supreme Court of Canada similarly stated in Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 that the respondent must show it took reasonable steps to accommodate the applicants, short of undue hardship, or in other words without undue interference in the operation of its business and without undue expense to it (paras. 23 and 28).
59The respondent must meet both procedural and substantive obligations of the duty to accommodate. With respect to the procedural duty, it must show it has obtained all relevant information about the applicant’s situation and then seriously consider how it can accommodate the applicant. If it fails to engage in a meaningful process or discussion with applicant or fails to give any or insufficient thought to what steps could be taken to accommodate the applicant, then it fails to satisfy the procedural obligation. To satisfy the substantive obligation, it has to show it accommodated the applicant’s creed-related needs short of undue hardship.
60While the parties argue that the undue hardship analysis is the key to this case, I find at the outset that the respondent has not demonstrated that it even turned its mind to the first requirement, the procedural duty to accommodate.
61The uncontroverted evidence is that the respondent has an attendance policy that required H.T. to work on the holiday; it expected H.T. to comply with it; and there was no evidence to establish that it engaged in any discussion after H.T. twice raised the issue of taking a day off for religious observance about how it might accommodate her in some other fashion. Ms. Singh’s evidence was that when H.T. told her she could not work on the holiday, she responded that it was the respondent’s policy and then walked away. This lends credence to my finding that the respondent did not give any serious thought to alternatives to accommodate H.T.
62With respect to the substantive duty to accommodate, the only alternative offered was for H.T. to work at midnight. Given her particular circumstances and the agreement of the respondent with S.T. that H.T. would not work past 10 p.m. because of her age, this was not a reasonable attempt to accommodate her. She had concerns about working late at night in a rural setting. In addition, she did not have a means of transportation to get to work at midnight. While the applicants were clear that they were not claiming discrimination on the basis of age, H.T.’s age certainly is an appropriate factor to consider when assessing the accommodation offered. In my view, the alternative offered, particularly in light of the uncontroverted evidence that Ms. Singh agreed with S.T. that H.T. would not work past 10 p.m., was not a reasonable alternative, and no other options were available to H.T. Whether or not she was expected to work the following day shift, the expectation that a 16 year old would work at midnight was an unreasonable one.
63In light of my findings that the respondent failed to establish that it fulfilled the procedural and substantive duties to accommodate H.T., I am of the view that I need not consider whether the respondent accommodated H.T. to the point of undue hardship.
64However, if my analysis is incorrect with respect to the respondent’s failure to fulfill the procedural and substantive aspects of the duty to accommodate, I also find that given the almost complete lack of evidence with respect to undue hardship on the respondent that it fails to establish that to accommodate H.T. would have constituted undue hardship on it.
65The respondent provided no evidence of any cost associated with any attempt to accommodate H.T. It provided no documentary or oral evidence of economic losses, and no documentary or oral evidence that even if the trucks left late that there was any economic impact on the respondent. Given the size of the respondent’s business, the respondent would be in a position to provide some documentary evidence that may have included monthly statements, balance sheets or even e-mails from customers who complained.
66I am sympathetic to the respondent’s oral evidence that it could not absorb the loss of 11 of its 23 employees on a Thursday, particularly because of the fact that it handles products that must be packaged within a short period of time, but I am left with only the respondent’s oral evidence that no alternative was available that would not create undue hardship. The respondent produced no documentary or oral evidence of financial hardship to support its undue hardship argument.
67In addition, while Ms. Singh testified it could not afford to have 11 of its 23 employees off work on the holiday, in fact the respondent testified the applicants were the only ones who did not either work at midnight or on the holiday, which meant the respondent was short two employees, not 11 (and in fact they were short one, given my finding that only H.T. was scheduled to work), a fact that also lends no support to the respondent’s undue hardship argument.
68The respondent also adduced no evidence of any efforts it made to find replacement workers for H.T. for the holiday. In addition, terminating H.T. for missing one day of work belies the respondent’s evidence that accommodating her constituted undue hardship because after terminating the applicants, the respondent then was short staffed for weeks, a situation that would have been reasonably foreseeable to the respondent in the circumstances given Ms. Singh’s evidence that it was hard to find labour in the area.
69I find that the respondent discriminated against H.T. and has not satisfied me that it accommodated her to the point of undue hardship.
Discrimination Against J.T. on the Basis of Association
70With respect to J.T., I find that while he was not scheduled to work, he was in any event fired because of his association with his sister who had asserted her right not to work on the holiday, and with whom he shares the same religion. I find the respondent’s act of terminating J.T. because of his association with H.T. on the basis of creed is a breach of the Code.
71I turn now to the issue of reprisal.
Reprisal
72The prohibition against reprisal protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their Code rights. A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
In addition, the following principles are relevant:
a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
73In this case, H.T. has proved she asserted her right not to work on the holiday and was terminated for asserting that right. It is clear that the respondent intended to punish her for asserting her Code right not to work on the holiday given that she was terminated on the day of the holiday.
74My finding that the respondent reprised against H.T. is supported by Ms. Singh’s evidence that she discussed with the employees, including the applicants, that if they did not come in on the holiday, they could be fired. In addition, the respondent’s evidence was that the applicants were terminated because if they were not, others would feel they did not have to follow the attendance policy in the future. It is clear that H.T.’s termination was a reprisal.
75I find no reprisal against J.T. Because he was not scheduled to work, he did not assert his right not to work on his religious holiday, and his firing was not a reprisal for doing so. While the undisputed evidence shows that J.T. was present when H.T. asserted her right not to work on the holiday, J.T.’s evidence also demonstrates he was not there to assert his right not to work on the holiday. He therefore has not satisfied the second part of the test for reprisal as set out in Noble.
remedy
76The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provides:
(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:
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.
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.
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.
77The applicants each seek:
a. $10,000 for injury to dignity, feelings and self-respect;
b. an order that the respondent within 30 days of the date of the Decision prepare an internal Human Rights policy in accordance with Human Rights Commission, to include a prohibition on discrimination on the bases of creed and association, and to give a copy of that policy to all its employees to the applicants’ counsel;
c. an order that the respondent amend its absence policy to accord with the Code; and,
d. an order that the respondent’s manager and owners undertake Human Rights training, including with respect to the duty to accommodate with special emphasis on creed and association.
78In addition, H.T. seeks lost wages for the period she was unemployed from May 29 to June 29 in the total sum of $1927.00, based on an average of 41 hours of work per week at her regular wage of $10.25 per hour, plus 4 overtime hours a week for a total of an additional $246.00.
79J.T. seeks lost wages for his 22 week period of unemployment, between May 29 and October 30, 2014, based on his average working week of 31 hours, for a total of $6690.00.
80The Tribunal primarily has applied two criteria in evaluating appropriate compensation 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, and Sanford v. Koop, 2005 HRTO 53.
Monetary Compensation
81It is well established that the focus of the remedial power under the Code is restorative rather than punitive. The principle under which monetary compensation is ordered is to attempt to restore the applicant to the position she would have been in had the discrimination not occurred. In determining an appropriate and just remedy, the focus is on the applicant’s experience, not on the party who infringed his or her rights. See, for e.g., Hughes v. 1308581 Ontario, 2009 HRTO 341.
82In Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 CHRR D/6347 (Ont. C.A.) the Ontario Court of Appeal stated:
The purpose of compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred.
Injury to Dignity, Feelings and Self-Respect
83The 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.
84The 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.
85It was H.T.’s uncontroverted evidence that she still feels disappointed that she was fired for not working on a religious holiday, thereby losing work that she said she liked and that was light and simple. J.T.’s uncontroverted evidence was that he was sad and disappointed because he lost full-time work, and he really liked working outdoors and on a farm.
86The applicants submit their cases are comparable to cases in which employees have been terminated on the basis of disability or pregnancy, given there are not as many decisions with respect to creed. They rely on the cases of Pritchard v. Commissionaires Great Lakes, 2012 HRTO 1466; Davis v. Nordock Inc., 2012 HRTO 2218; and Osvald v. Videocomm Technologies, 2010 HRTO 770 in which $10,000.00 was awarded and Ong v. Poya Organics & Spa Ltd., 2012 HRTO 2058 in which $12,000.00 was awarded for injury to dignity, feelings and self-respect.
87The respondent submitted these cases are more comparable to Smith v. Network Technical Services Inc., 2013 HRTO 1880 (“Smith”) in which $5000.00 was awarded to an employee who was terminated for refusing to work on Sundays.
88After considering all of these cases, as well as the objective seriousness of the respondent’s conduct in firing H.T. for not working on the religious holiday and J.T. because of his association with J.T., and the applicants’ testimony that they both felt disappointed that they lost work they enjoyed, I find it appropriate to award H.T. the sum of $10,000.00 given my finding of discrimination and reprisal.. I find it appropriate to award J.T. the sum of $7,500.00 in the absence of a reprisal finding. I note that in the Smith case, there was evidence that the applicant was disillusioned with his employer even before his termination, and there is no similar evidence in this case. In this case, the applicants’ evidence was that they enjoyed their work and intended to stay on. They were disappointed when they were fired. J.T. added that this was farm work, which he really liked and which meant he could be outside. With respect to the financial impact of their termination, they had been helping their family with bills and H.T. was saving for a car.
Wage Loss
89The applicants have a duty to mitigate their losses by making reasonable efforts to obtain suitable employment. See Adams v. Knoll, 2010 HRTO 376 (“Adams”) at para. 16. The applicants are entitled to be compensated only for those losses that could not have been avoided, and the respondent has the onus of proving the applicants’ failure to mitigate. See Heintz v. Christian Horizons, 2008 HRTO 22.
90In this case, the applicants’ evidence with respect to their wage loss was uncontroverted. They both sought work after their termination. There was no evidence that the applicants failed to mitigate their wage loss.
91H.T. was out of work for only one month. She applied at 20 places after being terminated. She began working for her grandfather on June 29, 2014 within a month after termination, and then found alternate employment, which she began on September 24, 2014.
92J.T. was out of work until October 30, 2014. Between his termination date and October 30, 2014, he applied to 14 places of employment. He had one interview but was not hired because the employer found out he was 15 and it does not hire anyone under 16.
93On the basis that the applicants’ wage loss evidence was uncontroverted and there was no evidence of any failure to mitigate, I accept the applicants’ wage loss calculations and award H.T. the sum of $1927.00 and J.T. the sum of $6690.00.
94The applicants are entitled to prejudgment interest on these amounts in accordance with ss. 17(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 that allows a tribunal to order interest. The Ontario Court of Appeal has held that prejudgment interest on damages for lost salary should not be awarded prior to the date such payments were due: see Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 14 (ON CA), [2006] O.J. No. 13 (ONCA) at para. 27 (C.A.).
95In this case, H.T. is entitled to lost wages for the period from May 29, 2014 to June 29, 2014. The midpoint of this is June 14, 2014. My review of the paystubs submitted shows they were issued weekly, and that payment up to this midpoint would have been due on June 20, 2013. Prejudgment interest shall run on the compensation for lost wages from this date. While entitlement to prejudgment interest runs from June 20, 2014, the rate itself is based on when the application was commenced, in this case, August 19, 2014. The applicable prejudgment interest rate under the Courts of Justice Act is 1.3%.
96J.T. is entitled to lost wages for the period from May 29, 2014 to October 30, 2014. The midpoint of this is August 14, 2014. My review of the paystubs submitted shows they were issued biweekly, and that payment up to this midpoint would have been due on August 20, 2014. Prejudgment interest shall run on the compensation for lost wages from this date. While entitlement to prejudgment interest runs from August 20, 2014, the rate itself is based on when the application was commenced, in this case, December 12, 2012. The applicable prejudgment interest rate under the Courts of Justice Act is 1.3%.
Non-Monetary Remedies
97The Tribunal’s remedial powers are broad, and pursuant to s. 45.2.1(3) the Tribunal has the power to direct any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code.
98In this case, Ms. Singh testified the respondent does not have an internal Human Rights policy. In my view, it is appropriate that the respondent therefore within six months of the date of the Decision prepare an internal Human Rights policy that conforms to the Guidelines on Developing Human Rights Policies and Procedures published by the Ontario Human Rights Commission, and that specifically includes a prohibition on discrimination on the bases of creed and association, and the respondent shall provide the applicant with written confirmation that it has done so and shall include a copy of the policy.
99The respondent testified it has an attendance policy, but the policy was not produced at the hearing. In the absence of my being able to review the policy, I make no order with respect to it.
100In the absence of any adequate policy with respect to discrimination and any complaint procedure, I find it appropriate that Ms. Singh and Mr. Esmile 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. The respondent shall provide the applicant with written confirmation from Ms. Singh and Mr. Esmile that they have done so upon completion of the course.
101I also find it appropriate for the respondent, within 30 days of the date of this Decision, to post Code cards in central locations throughout their place of business, including in any place the staff gather for breaks or meetings, to promote future compliance with the Code. These can be found at: http://www.ohrc.on.ca/en/human-rights-code-cards.
Order
102The respondent shall pay to H.T.:
a. $10,000.00 for injury to dignity, feelings and self-respect and reprisal;
b. the sum of $1927.00 for wage loss from May 29 to June 29, 2014;
c. pre-judgment interest of 1.3% on the amounts awarded for injury to dignity, feelings and self-respect from June 14, 2014 to the date of this Decision;
d. pre-judgment interest of 1.3% on the amounts awarded for wage loss from June 14, 2014 to the date of this Decision; and,
e. Pay to the applicant post-judgment interest of 2% on the amounts awarded for injury to dignity, feelings and self-respect and wage loss, commencing 30 days after the date of this Decision.
103The respondent shall pay to J.T.:
a. $7,500.00 for injury to dignity, feelings and self-respect;
b. the sum of $6690.00 for wage loss from May 29 to October 30, 2014;
c. pre-judgment interest of 1.3% on the amounts awarded for injury to dignity, feelings and self-respect from August 14, 2014 to the date of this Decision;
d. pre-judgment interest of 1.3% on the amounts awarded for wage loss from August 14, 2014 to the date of this Decision; and,
e. post-judgment interest of 2% on the amounts awarded for injury to dignity, feelings and self-respect and wage loss, commencing 30 days after the date of this Decision.
104The respondent shall:
a. Ensure that Ms. Singh and Mr. Esmile 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 provide the applicant with written confirmation that they have done so upon completion of the course; and,
b. Within 30 days of the date of this Decision post Code cards in central locations throughout the respondent’s place of business, particularly in the lobby and in areas where the staff takes breaks or has meetings.
Dated at Toronto, this 11th day of August, 2015.
“Signed by”
Dawn J. Kershaw
Vice-chair