Knox-Heldmann v. 1818224 Ontario Limited o/a Country Style Donut, 2015 HRTO 1376

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Connie Knox-Heldmann

Applicant

-and-

1818224 Ontario Limited o/a Country Style Donut

and Arlene St. Bernard

Respondents

DECISION

Adjudicator: David Muir

Date: October 16, 2015

Citation: 2015 HRTO 1376

Indexed as: Knox-Heldmann v. 1818224 Ontario Limited o/a Country Style Donut

APPEARANCES

Connie Knox-Heldmann, Applicant

Grace Vaccarelli, Counsel

1818224 Ontario Limited o/a Country Style Donut and Arlene St. Bernard, Respondents

No one appearing

1A hearing in respect of this Application was held on October 5, 2015, in Toronto. The respondents’ did not attend the hearing although given notice of the hearing. In accordance with the Tribunal’s normal practice, when the respondents’ were not in attendance at the time and place set for the hearing, the case was held down for 30 minutes. After waiting 30 minutes, the respondents’ were not in attendance and had made no contact with the Tribunal.

2The hearing continued in the absence of the respondents’. I heard the evidence of the applicant. A number of exhibits were filed by the applicant as well.

3For the reasons that follow, I find that the applicant experienced discrimination in employment on the basis of age, family status, marital status and disability. In particular, I find that the applicant was dismissed from her employment in whole or in substantial part because she was perceived to be a person with a disability. The applicant’s age might have also been a factor in her dismissal from employment but I make no specific finding in that regard. It is clear however that the applicant experienced a poisoned work environment on the basis of her sex, age, marital and family status during the course of her employment in the form of comments made about her age, her marital and family status.

4The applicant adopted her detailed witness statement as her evidence. She was also questioned by her representative as well as the writer.

5There is no basis, having regard to the respondents’ Response, the applicant’s demeanor and the content of the applicant’s evidence to question its essential veracity of the applicant’s claims. The applicant appeared to be truthful and her evidence was an entirely plausible narration of events. I accept her evidence.

6The evidence establishes the following material facts.

7The applicant is a married woman born in 1954. She had been employed by the respondents’ for about 5 years when her employment ended in November 2013.

8The respondents’ are a franchisee and one of the co-owners of the business who operated two Coffee Time stores. The individual respondent played an important role in the day to day running of the business. She for example appeared to be responsible for hiring and firing staff including the applicant.

9The applicant was apparently a good employee. She was promoted as Manager of one of the stores operated by the respondents’ in late 2011 because, she was told, the store was struggling. The applicant kept two notes from the individual respondent commending her for her personal qualities and her hard work. She was awarded an employee of the month award on one occasion before being promoted to management.

10She reported to Kish R., the respondents’ General Manager. The applicant’s duties included supervising staff, and generally managing the day to day operation of the store. An important part of the applicant’s responsibilities included opening the store and starting the ovens at 4:00 a.m., prior to the store opening to the public. While the applicant, as manager of the store, had some responsibility for discipline she could not fire an employee and all discipline was done in consultation with Ms. St Pierre.

11Shortly after being made a manager, she was asked by the personal respondent if she could wait to be paid so that other employees could get paid. Apparently the business was having trouble meeting its payroll and the applicant had received several NSF cheques. According to the applicant, the personal respondent told her that she could afford to wait because she had a husband who would provide for her. The applicant testified that this happened at least four times from late 2011 through 2012. She testified that eventually she was paid her wages for time worked.

12The applicant described a certain level of workplace conflict with Kish R. and one other employee, P.J., who the applicant believes was hired to eventually replace her.

13The issues with Kish R. flowed from his continual borrowing of inventory from the applicant’s location for use elsewhere without replacing it. This left the applicant short on supplies and forced her to purchase supplies with her credit cards for later reimbursement. The applicant found this ongoing issue stressful.

14The applicant testified that in the first week of April 2013, she went to the other location to pick up the supplies that Kish R. had taken from her store. The applicant testified that this had been approved by Ms. St Pierre. When she attended at the other store she was challenged by P.J. When the applicant advised P.J. that she was authorized to re-stock her inventory and would be back, P.J. said that the applicant was nothing but “a dried up old prune” who she could ignore.

15The applicant complained to the General Manager about this comment, who said not to worry about it and consider the source. According to the applicant, he apparently told the personal respondent about it because she called the applicant a short while later and again said to her that she should get over it and consider the source. The applicant received a note from the personal respondent a short time later, which she believes was in response to this incident but she does not know if P.J. was ever spoken to about her comments.

16The issue of people removing inventory from the applicant’s store was ongoing. In July 2013, when the applicant challenged the General Manager about this, he told her to stop being a “bitch”, in the presence of the personal respondent. When the applicant challenged the personal respondent to do something about this comment, she denied hearing anything inappropriate. The applicant testified that when she told the personal respondent exactly what had been said, she laughed and said she had not heard it.

17The next day, the applicant told the General Manager that she would no longer be providing supplies to the store and would no longer accept late payment of her wages. The following day, the applicant’s hours of work were cut. When the applicant complained about her hours she was told this was done because of her complaint about being called a “bitch” the day before.

18The applicant complained about her hours of work but was told that those were her hours. If she wanted them she could have them. If she did not want them she could quit. The applicant was told on several occasions during this period that she should quit or retire and get on with her life by the General Manager and P.J.

19Although the applicant was told in July 2013 that P.J. was there to help the applicant in running the store, it appeared to the applicant that P.J. had been hired to replace her and acted accordingly. P.J. told her at one point that a Regional Manager of the Franchisor had told her (P.J.) that she would become the manager of the applicant’s store. The applicant’s responsibilities as manager were reduced and her hours of work were cut back again.

20The applicant complained to the General Manager about her hours. She was told that if she wanted more hours she would have to relinquish her managerial position. He also suggested that she work part time and find another job. The applicant complained about her hours being cut on several occasions. On more than one occasion, the general manager told her that she was his mother’s age and she should consider retiring.

21The applicant began to seek medical help for stress and anxiety that she associated with her difficulties at work.

22In early August, she saw her nurse-practitioner who recommended she take a medical leave and provided a note to that effect. The applicant asked the personal respondent for a leave but was told that the respondents’ could not accommodate her because it was holiday’s month – that is a number of other staff able to perform the necessary management functions would be away on holiday. The applicant continued to work despite her nurse-practitioner’s advice because she was afraid that she would lose her job. The applicant testified that there were others including the co-owners who could and sometimes did cover the 4:00 a.m. openings when required.

23The applicant requested another leave on September 19, 2013, for a month. This was granted. The applicant also requested a Record of Employment, this was not provided.

24During a staff meeting on September 20, 2013, everyone was told by the personal respondent that the applicant would be taking a leave but would return as manager when she returned to work. The personal respondent also mused about selling the business but said she had chosen not to do so because of the employees’ need for a job. However for some reason, the personal respondent added in front of everyone that she was not concerned about the applicant because she had a husband with a job.

25While off on leave, the applicant was told to come in to cover a shift on October 12, 2013, which was Thanksgiving Sunday. She complied with this request in order to keep the peace with her employer and out of fear of losing her job.

26The applicant returned to work on October 20, 2013. She came with a note which indicated that she should begin work between 6:00 and 8:00 a.m. and not her normal opening time as manager of 4:00 a.m. At the hearing, the applicant clarified that this was not a permanent accommodation but a form of gradual return to work.

27When the applicant spoke to the personal respondent about this she was told that if she could not start work before 6:00 a.m. she could not work there. The personal respondent asked the applicant what she was going to do. The applicant replied that she was not going to quit. She testified that she indicated to the personal respondent that after a couple of weeks she would be able to return to her regular hours of work.

28The requested graduated return to work was not accommodated. For the remainder of her employment she alternated with P.J. who had apparently covered the 4:00 a.m. openings while the applicant was on leave.

29The conflict with P.J. was more pronounced after she returned. The personal respondent’s spouse, apparently an owner, would not speak to her but went to P.J. P.J. felt able to direct the applicant. P.J. took over the creation of the chore list – a list of chores to be performed each day by store staff – which had been a responsibility of the applicant as manager – and assigned the applicant to clean the bathrooms. P.J. also told the applicant to stay away from the office – where she as manager would have routinely worked in the past.

30On November 6 or 7, 2013, P.J. directed the applicant to put on a hair net. The applicant texted the personal respondent to find out if she was truly required to do so as this had not been a rule in the past and to clarify who was the manager and who was not. The personal respondent did not respond to this text.

31The applicant made other attempts to contact the personal respondent but she would not respond.

32On November 11, 2013, the personal respondent called the applicant. She yelled at the applicant about the hair net and advised that everyone had to wear a hair net. She said that if she had to come to the store someone would be fired.

33On November 12, 2013, the applicant was dismissed. The written letter refers to performance issues and insubordination. The applicant testified that she was never disciplined for insubordination. She testified that in her experience with these respondents’, they engaged a policy of progressive discipline that begins with verbal warnings and written warnings leading in some cases to discipline.

34The letter also asserts that the employer could not accommodate the applicant if she was unable to start at her regular time of 4:00 a.m. The letter does not address the applicant’s evidence that she advised the respondent that this would only be for a short time. The letter also does not establish that it would have imposed undue hardship on the respondents’ to accommodate the applicant as regards to her hours whether for a short or more lengthy period of time.

35After her dismissal, employees in the store did not wear hair nets, according to the applicant.

36The applicant began a job search after a short period of time without success. She provided a list of the applications and interviews she had. She stopped looking for work in May 2014 for reasons personal to her. Her claim for lost wages is confined to the 7 month period of her job search.

37As I indicated to the applicant after hearing her evidence and submissions, I am satisfied that the applicant experienced discrimination in employment on the basis of the grounds cited by her. The disability issue is the most obvious as it is clear from the respondents’ termination letter, signed by the personal respondent which specifically references the need for accommodation in the applicant’s hours of work that a factor in the decision was a concern about this need for accommodation.

38I accept that the applicant was a person with a disability (or perceived disability), at the time. In the circumstances, the brief medical notes are sufficient to establish that in the absence of any challenge to them at the material times and/or at the hearing. I also have no evidence before me that the respondents’ could not have accommodated the applicant for whatever period of time she required.

39There is also some evidence from which an inference might be drawn that the applicant’s age may have been a factor in her termination but I make no specific finding in that regard.

40The applicant also experienced a poisoned work environment in the not infrequent comments that she should quit or retire and move on with her life. The comments were made in the same environment where she was said to be as old as the general manager’s mother and described by another employee as “a dried up old prune” who could be ignored. These issues were raised with the respondents’ and while perhaps not the most egregious of things to hear, they were never addressed by the respondents’ and were a source of significant disquiet for the applicant. I accept the applicant’s evidence that she felt demeaned and devalued by these remarks and the respondents’ failure to respond appropriately to them. These incidents constitute discrimination in employment on the basis of age.

41I also find that the applicant was treated differently because she was a married woman who in the words of the personal respondent had a husband to take care of her. These comments and her being asked to delay taking her wages on at least four occasions is discrimination on the basis of family and marital status as well as sex. I accept the applicant’s evidence that this job and her income were her “independence” after a life as a homemaker whose first husband had died not long before she began working for the respondents’. Accordingly, the repeated suggestion that she did not need the job or her wages were demeaning and discriminatory.

42I also find that being referred to as a “bitch” by the general manager in front of the owner was discriminatory. More importantly perhaps the respondents’ took no steps to respond to the incident and engaged in a reprisal, when the applicant’s hours of work were cut the following day. In the absence of any explanation otherwise, I find that the timing and circumstances are sufficient to draw the inference that the cut in hours was a reprisal for complaining about the discriminatory comment.

Remedy

43The 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:

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; and

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

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

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

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

Monetary Compensation

Injury to Dignity, Feelings and Self-Respect

44The applicant sought an award of $15,000 compensation for damages to her dignity, feelings and self-respect.

45An award of damages under this head recognizes the inherent value of the right to be free from discrimination. The Ontario Divisional Court has recognized that 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.

46The Divisional Court has also recognized that humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment are among the factors to be considered in setting the amount of damages. See ADGA Group Consultants Inc., supra, at para. 153.

47In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent awards under this heading of damages, and stated at paras. 52-54:

(…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 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.

48A number of Tribunal decisions that have considered disability-related discrimination in the context of the termination of the applicant’s employment have generally made awards ranging from $10,000 to $45,000 – with the preponderance of them begin between $10,000 and $20,000. See, for example, Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 ($45,000); Krieger v. Toronto Police Services Board, 2010 HRTO 1361 ($35,000); Lopetegui v. 680247 Ontario, 2009 HRTO 1248 ($20,000); Mirashrafi v. Circuit Centre, 2010 HRTO 512 ($15,000); Vetricek v. 642518 Canada, 2010 HRTO 757 ($15,000); Duliunas v. York-Med Systems, 2010 HRTO 1404 ($15,000); LeBlanc v. Syncreon, 2010 HRTO 2336 ($10,000); and Coscina v. Halton School of Equitation, 2011 HRTO 1949 ($10,000).

49As indicated above the applicant was dismissed from her employment in large part because of her disability related need for accommodation for a period of time. I accept her testimony that she became upset, sad and depressed as a consequence. I also accept her evidence that this was her first job after the loss of her first husband in 2007. Being her first real job outside of the home, it was as she put it, “her independence”. I accept her evidence that the loss of this job, in these circumstances, was significantly damaging to her feelings of self-worth and independence.

50I have also considered the other issues arising in this case including the poisoned work environment described above. I find after considering the facts, as I have found them above, that $15,000 is an appropriate award of compensation for injury to dignity, feelings and self-respect.

Lost Income

51The applicant seeks an award of monetary compensation for lost income for a period of 7 months while she sought other employment without success. The purpose of compensation for loss of income is to restore the applicant as far as is reasonably possible to the position that the applicant would have been had the discriminatory acts not occurred. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 CHRR D/477 (Ont. C.A.) and Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 CHRR D/6347 (Ont. C.A.).

52The applicant is under a duty to mitigate her losses by making reasonable efforts to obtain suitable employment, and is only entitled to be compensated for those losses that could not have been avoided. I have found that the applicant met her duty to mitigate.

53The applicant provided un-contradicted evidence that her weekly wage was $736.90. She also provided documents which supported this claim. Assuming that there are approximately 4.3 weeks in a month the applicant is entitled to an award of $22,180 in lost wages for the seven month period she was actively looking for work.

54The applicant filed a claim under the Employment Standards Act and an Order to Pay was made in her favour. My award above includes any amount ordered to be paid as termination pay only in the Order to Pay.

Interest

55Under s. 128(1) of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended, prejudgment interest runs from the date the cause of action arose to the date of the order. Accordingly, I find that the respondents’ should pay the applicant pre-judgment interest on her total award of lost income from February 1, 2014, roughly the mid-point of the period for which wages are owing to the date of this Decision.

56Post-judgment interest is payable on any amount of the award of monetary compensation for injury to dignity, feelings and self-respect and lost income not paid within 30 days of the date of this Decision.

57The applicable interest rates may be found on the website of the Ministry of the Attorney General of Ontario at: http://www.attorneygeneral.jus.gov.on.ca /english/courts/ interestrates.asp.

58I also find that it is appropriate given the nature of the business, the central role played by the individual respondent in the incidents of discrimination that I have found occurred that the respondents’ are joint and severally liable to satisfy them.

ORDERS

59Accordingly, the Tribunal orders as follows:

1) Within 30 days of the date of this Decision, the respondents’ shall pay the applicant $15,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect;

2) Within 30 days of the date of this Decision, the respondents’ shall pay the applicant $22,180 as monetary compensation for lost income. Pre-judgment interest is payable on her lost income from February 1, 2014 to the date of this Decision; and

3) Post-judgment interest is payable on any amount of the awards of monetary compensation for injury to dignity, feelings and self-respect and lost income not paid within 30 days of the date of this Decision.