Pierce v. 856660303 Ontario Ltd. o/a Chair Cover King Ltd., 2015 HRTO 1456

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zanesha Pierce

Applicant

-and-

856660303 Ontario Ltd. o/a Chair Cover King Ltd.

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: October 30, 2015

Citation: 2015 HRTO 1456

Indexed as: Pierce v. 856660303 Ontario Ltd. o/a Chair Cover King Ltd.

APPEARANCES

Zanesha Pierce, Applicant

Tracey Nellis, Representative

856660303 Ontario Ltd o/a Chair Cover King Ltd., Respondent

No one appearing

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of race, place of origin, citizenship, ethnic origin, marital status and reprisal. The applicant did not select disability as a ground of discrimination, but the narrative of the applicant clearly identifies allegations of discrimination because of disability and I therefore find it appropriate to deal with these allegations.

The application

2In the Application, the applicant, who describes herself as a Caucasian Canadian, stated that she worked for the respondent between June 25, 2012 and October 9, 2014. The applicant stated that she was hired as a delivery driver and customer service assistant manager. She described her duties as deliveries, re- stocking, inventory, and picking up supplies at the border.

3The applicant stated that she broke her ankle on February 21, 2014, but never missed a day of work. The applicant stated that she took taxis to work. The applicant alleged that she had to get her doctor to confirm that she could not drive because the respondent threatened to dismiss her if she could not drive.

4The applicant alleged that the owner, Scott Polley, had been absent from the business for an extended period, while out of the country and returned on August 7, 2014. The applicant alleged that Mr. Polly was authoritarian and verbally abusive towards her. Mr. Polley was in New York for the last two weeks of September 2014 and returned to the workplace on October 1, 2014. The applicant stated that she was in the process of having her husband emigrate from Jamaica to Canada. The applicant alleged that Mr. Polley advised her not to complete the process. The applicant stated on several occasions Mr. Polley stated that the applicant's husband was using her to get into Canada, that her husband cheats on her and would ruin her life.

5The applicant stated that on October 9, 2014, Mr. Polley became irate when he was dissatisfied with the applicant when she sent a list to customers and began to yell at her. When the applicant objected to the verbal abuse directed at her, Mr. Polley dismissed her. The applicant alleged that the respondent filed an inaccurate Record of Employment ("ROE") in respect of her employment and did not correct it when the error was pointed out. The applicant asserts that she was dismissed because she was the only white woman working for the respondent and Mr. Polley would not tolerate a woman talking back to him.

6The respondent filed a Response on December 29, 2014 denying the allegations.

7The applicant filed a Reply on March 25, 2015.

Background/Hearing

8By Notice of Hearing dated March 17, 2015, Tribunal scheduled this Application for hearing on August 31, 2015. By e-mail message dated August 4, 2015, Mr. Polley advised the Tribunal that the respondent had been closed since March 31, 2015 due to retirement and attached Articles of Dissolution with respect to Chair Cover King Ltd. The Ontario Corporation Number set out on the Articles of Dissolution form was, however, different than the Corporation number for the respondent. Mr. Polley advised the Tribunal that they would not participate any further in this proceeding as the respondent no longer exists. The Tribunal sought the applicant's position regarding whether the hearing should proceed. In e-mail messages dated August 12 and August 17, 2015 (which the Tribunal forwarded to the respondent) the applicant asserted that she called the respondent's telephone number and her former co-worder picked up and answered "Chair Cover King". The applicant also stated that she would attend the hearing and would seek a default judgment if the respondent did not attend. The applicant stated that the respondent remained in business was attempting to mislead the Tribunal.

9In these circumstances, the hearing proceeded as scheduled. The applicant attended; the respondent did not. Following its usual practice, the Tribunal waited until 10 a.m. to commence the hearing and then proceeded without the respondent.

The Applicant’s evidence

10The applicant was affirmed and adopted the narratives of her Application and Reply as her evidence. The applicant also gave evidence in support of her Application.

11The applicant's evidence was that she was hired to drive as part of her duties and she also drove to work. The applicant described the respondent's business as linen rentals, including providing stanchions and red carpets for events and providing chair covers and table cloths for banquet halls. The applicant was also sometimes required to clear shipments through customs. Unfortunately, the applicant broke her right ankle in February 2014. Her doctor's advice was that she should not drive. Despite relating this advice to the respondent she was pressured to drive. Grant Polley, Scott Polley's brother, commented that the applicant would not have a job if she could not work. This prompted the applicant to call Scott Polley, who was out of the country at the time, for clarification. According to the applicant, Mr. Polley responded to the effect that she was hired as a delivery driver and could not do her job. The applicant stated that she did not drive for about two weeks after her injury, but continued to receive comments about her inability to drive including that she should look for other work if she could not drive. As a result, the applicant removed her cast (which was an air cast to the knee) and drove on two occasions. The applicant's evidence was that she brought in a note from her doctor about one month after her injury and she was not required to drive after that. The applicant stated that the respondent used a delivery service when she was not driving and she was assigned other tasks instead of driving. The applicant had no income loss, although she spent money on taxis to commute to and from work.

12The applicant testified that in the late summer/early fall 2014 she was in the final stages of arranging for her husband to emigrate to Canada from Jamaica. To facilitate this process, the applicant was allowed to have her personal computer at work, so that she could monitor her Internet account with the Department of Citizenship and Immigration Canada (“DCIC”). The applicant's evidence was that Mr. Polley counseled her to withdraw the immigration application because her husband was coming to Canada to use her and would cheat on her and abuse her. According to the applicant, Mr. Polley also stated that the applicant's husband would take her money and would go on welfare and force her to go on welfare. Mr. Polley told her that she was stupid for sponsoring a Jamaican man. The applicant stated that she told Mr. Polley to stop, but he persisted and continued to make these kinds of comments “pretty much every day” from the time he returned to the office from his New York trip on October 1, 2014 until the applicant's dismissal on October 9, 2014. The applicant's evidence was that the stress of the immigration process and Mr. Polley's harassment caused her to have a panic attack. The applicant stated that she went to work the day after the panic attack and felt extremely nauseous and was sweating profusely. The applicant eventually began to experience shortness of breath and severe chest pain and her friend took her to the emergency room. The applicant stated that she followed up with a cardiologist. The applicant stated that she informed Mr. Polley and a co-worker about the panic attack, but they did not show any emotion or compassion.

13The respondent dismissed the applicant on October 9, 2014. On that day, the applicant was required to send a generic e-mail flyer or advertisement to a list of prospective clients. The applicant stated that she was multitasking at the time, as she was responding to a request from the DCIC for her husband's passport and sending an e-mail message to her husband's family to have him have his passport stamped by the Canadian Embassy. Mr. Polley found what he considered to be an error in the flyer and became upset. The applicant stated that Mr. Polley attributed the error to inattention by the applicant because of her focus on the immigration process. According to the applicant, Mr. Polley got up from his desk and closed the applicant's personal computer. The applicant testified that she asked him why he was so upset, and Mr. Polley told her to "shut the fuck up". The applicant's evidence was that she protested and informed Mr. Polley that he could not speak to her that way. This prompted Mr. Polley to make a statement to the effect of "That's it, you're fired" and told her to pack up her belongings and leave, which she did. The applicant received no severance pay.

14The applicant stated that the respondent did not report her income correctly on her ROE. The applicant stated that she immediately contacted Mr. Polley regarding the ROE and asked him about the numbers recorded on it. The applicant accused Mr. Polley of trying to prevent her from getting Employment Insurance (“E.I.”). According to the applicant, Mr. Polley laughed and said that she could not collect E.I. because she had been fired. The applicant's evidence was that the ROE was never corrected and she was required to use pay stubs to support her EI claim.

Analysis and decision

15The relevant Code provisions are as follows:

5. (1) 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, gender identity, gender expression, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

8. 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.

9. (1) In Part I and in this Part,

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome

“marital status” means the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage

11. (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.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

16The respondent did not participate in the hearing and, as a result, the applicant's evidence is unchallenged. Nonetheless, applicant bears the onus of proving, on a balance of probabilities, that the respondent's actions amount to a violation of her Code rights.

17The applicant bears the legal onus of establishing discrimination on a balance of probabilities, i.e., that it is more probable than not that discrimination occurred. See Peel Law Association v. Pieters, 2013 ONCA 396 at paragraph 83 (“Pieters”). In Pieters, the Court of Appeal stated that an applicant has the onus of establishing the following three elements to make out discrimination under the Code:

a. That he or she is a member of a group protected by the Code;

b. That he or she was subjected to adverse treatment; and

c. That the Code ground was a factor in the alleged adverse treatment.

Broken Ankle

18I accept the applicant's evidence that she broke her ankle in February 2014 and this injury prevented her from driving for a period of time. The Tribunal has found that a temporary injury or condition can come within the definition of disability under the Code where there is some inability to do something others can normally do and substantial ongoing limits in one's activities, particularly where the employer perceives that the injury interferes with business operations. See Hill v. Spectrum Telecom Group Ltd., 2012 HRTO 133 and Kalam v. Brick Warehouse, 2011 HRTO 1037. The applicant's injury, although temporary, imposed significant restrictions on her, as she could not commute independently and she could not perform some of her key job duties for a significant period of time. In other words the applicant’s bodily injury caused a physical injury. In these circumstances, I find that the applicant's broken ankle amounted to a disability for purposes of Code.

19The applicant's claim is essentially the respondent did not accommodate her disability related restrictions. As the Tribunal noted in Baber v. York Region District School Board, 2011 HRTO 213, the duty to accommodate is not a stand-alone obligation under the Code. In fact, it arises only under sections 11, 17 or 24 of the Code where a person is disadvantaged by a requirement or qualification because of a prohibited ground of discrimination. The Supreme Court of Canada noted in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3 (“Meoirin”) that the inquiry moves to the bona fides of the requirement in question only if a prima facie case has been made out that the requirement is discriminatory. Accordingly, the duty to accommodate arises only where an applicant has been subject to direct or adverse effect discrimination. The applicant bears the onus of establishing a prima facie case of discrimination, which, if established, shifts the evidentiary burden to the respondent to show that it accommodated the applicant to the point of undue hardship.

20In Meoirin, the Supreme Court of Canada also established that the duty to accommodate has both a procedural and a substantive component. To meet the procedural aspect of the duty to accommodate, a respondent must take adequate steps to explore what accommodation is needed, and to assess accommodation options. The substantive component of the analysis considers whether the accommodation offered was reasonable or whether a respondent was justified in not providing accommodation. The respondent bears the onus of demonstrating the considerations, assessments, and steps it undertook to accommodate the employee to the point of undue hardship.

21In this case, the job requirement that the applicant drive conflicted with the temporary restriction caused by her broken ankle and therefore resulted in a restriction or adverse effect on the applicant. In my view, this adverse effect amounted to prima facie discrimination. Accordingly, the duty to accommodate arises under section 11 of the Code in this case and the evidentiary burden shifts to the respondent to establish that it accommodated the applicant to the point of undue hardship. In Vanegas v. Liverton Hotels International, 2011 HRTO 715, the Tribunal stated that when dealing with temporary disabilities employers may be required to provide modified duties that may not be permanently sustainable. This is largely what the respondent did because, on the applicant's evidence, the applicant was given other duties while she recovered from her injuries and only drove twice. However, the applicant's evidence also was that she removed her cast and drove on two occasions because Mr. Polley and his brother made comments that caused the applicant to fear for her job if she did not. The applicant confirmed that she did not have to drive after she produced a doctor's note about a month after her injury. In my view, the respondent did not meet its duty to accommodate the applicant. While, for the most part, the respondent did not require the applicant to drive, the evidence was that Mr. Polley and his brother repeatedly made comments threatening her job security. These comments created an atmosphere in which the applicant concluded that the respondent did not truly support her need for accommodation. This conclusion led to the applicant’s decision to work outside of her disability-related restrictions to avoid losing her job. In my view, the respondent’s unsupportive approach to the applicant’s need for accommodation amounted to a breach of its procedural obligations. This procedural breach led directly to the applicant deciding to forego the accommodation she required by driving, which is in my view is a breach of the respondents substantive obligations. The applicant's evidence was that she performed other duties and respondent used a delivery service when she could not drive. Accordingly, I find that the respondent suffered no undue hardship in allowing the applicant not to drive until her ankle recovered. I note, however, that the applicant’s evidence was that her need for accommodation was respected after she provided a doctor’s note supporting her inability to drive. Accordingly, the respondent’s breach of its duty to accommodate the applicant was limited.

Comments about the Applicant's Husband

22In B. v. Ontario (Human Rights Commission), 2002 SCC 66, the Supreme Court of Canada confirmed that the ground of marital status includes not only the status of being in a relationship, but also the identity of an applicant's spouse. In this case, the applicant presented evidence that Mr. Polley repeatedly advised the applicant that she should not proceed with her attempts to sponsor her husband's immigration application because he was Jamaican and would be unfaithful to her and abuse her, and would become a burden on Canadian society. In my view, these comments were directly related to whom the applicant is married, i.e., a Jamaican man. Consequently, I find the applicant's marital status was a factor in Mr. Polley's comments. The applicant's evidence was that Mr. Polley's comments were persistent over a period of several days and she told him to stop making the comments. Consequently, Mr. Polley knew that his comments were unwelcome. Mr. Polley was of course her employer. Consequently, I find that Mr. Polley's comments meet criteria for establishing workplace harassment set out in the Tribunal's jurisprudence. See for example Dunn v. Edgewater Manor Restaurant, 2011 HRTO 1795 at paragraph 29 and Gubrenko v. T.O.J. Empire Auto 2014 HRTO 1232 at paragraph 33. Consequently, I find the respondent violated the applicant's right to be free from harassment in the workplace because of marital status.

Dismissal

23The applicant testified that Mr. Polley dismissed her after overreacting to an error in an e-mail flyer the applicant was directed to send to potential customers. The applicant's evidence was that, consistent with his behavior generally, Mr. Polley's conduct was highly abusive. I agree that, on the applicant's evidence, Mr. Polley's behaviour was seriously inappropriate and unfair. The Tribunal, however, does not have jurisdiction to deal with general allegations of unfairness. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389. To establish that the termination of her employment was discriminatory, the applicant was required to present evidence that one or more of the Code grounds on which he relies was a factor in the decision to dismiss her. In my view, the applicant's evidence did not establish such a connection. The same is true regarding the ROE issued by the respondent in respect of the applicant. While receiving an inaccurate ROE was undoubtedly unpleasant and unhelpful for the applicant, the evidence simply does not support the inference that any of the grounds relied upon was a factor in the manner in which the respondent produced her ROE. Consequently, the applicant's allegations regarding the termination of employment and the production of her ROE are dismissed.

24A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant for attempting to enforce his or her Code rights or for refusing to violation another person’s human rights. See Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34. The applicant’s evidence did not establish a connection between her objection to the marital status based discrimination she experienced and either her dismissal or the production of an inaccurate ROE. The applicant also protested the abusive treatment she received on October 9, 2014 and this protest did lead Mr. Polley to dismiss her. However, the evidence did not establish that Mr. Polley’s abusive behaviour had any connection to any prohibited ground of discrimination. Consequently, the termination of the applicant’s employment does amount to a reprisal under the Code. Similarly, the evidence did not establish that the respondent intended to retaliate against the applicant for claiming her human rights by producing an inaccurate ROE. The applicant’s reprisal claim is dismissed.

25The applicant did not present evidence that that there was any connection between the respondent’s actions and her race, place of origin, citizenship or ethnic origin. With the exception of race, the applicant did not in fact make any specific allegations based on these grounds. Consequently, there is no proper basis for finding that the respondent discriminated against the applicant on these Code grounds.

Remedy

26The Tribunal's remedial authority is set out in section 45.2 of the Code as follows:

45.2 (1) On an Application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the Application has infringed a right under Part I of another party to the Application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

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

27An award of compensation for injury to dignity, feelings and self-respect recognizes the inherent value of the right to be free from discrimination and the experience of victimization. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON SCDC), the Divisional Court confirmed that the factors to be considered in setting the amount of damages include: 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.

28In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated as follows regarding the jurisprudence dealing with awards for injury to dignity, feelings and self-respect, at paragraphs 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 , 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.

29The applicant's ankle injury did not cause her to lose any wages. The applicant felt pressured to drive, despite her injury, on two occasions. She did not describe how this affected her in her testimony, but I accept that comments to the effect that her job was in danger or unwelcome and would have caused distress. Despite these comments, the respondent provided the applicant with alternative work while she recovered. Accordingly, the failure to accommodate was relatively minor. In circumstances where the failure to accommodate a disability was for a limited duration and/or later there was little evidence of the impact of the failure to accommodate on the applicant, the Tribunal has awarded modest damages for injury to feelings, dignity and self-respect. See Piechocinski v. Toronto Standard Condominium Corporation No. 1519, 2011 HRTO 143 ($1,000) and Goad v. 1681078 Ontario, 2010 HRTO 817 ($1,500). In the circumstances of this case, I find that $1000 is an appropriate award for the injury to the applicant's feelings, dignity and self-respect caused by respondent's failure to accommodate her disability.

30The applicant also experienced workplace harassment on the basis of her marital status persistently from the day Mr. Polley returned to the office on October 1, 2014 until the day of her dismissal on October 9, 2014. As an employee, the applicant was in a vulnerable position and Mr. Polley's comments were unwelcome and particularly personal as they questioned the applicant’s relationship with her husband. Mr. Polley persisted despite the applicant's request to stop. The applicant's un-contradicted evidence was that this harassment caused her significant distress and precipitated a panic attack for which she was hospitalized. The applicant has also pursued some follow-up treatment for stress and anxiety, but there was no evidence of any diagnosis or of the severity of ongoing symptoms, if any.

31It does not appear that the Tribunal has awarded damages for harassment based on marital status, but there are some analogous cases. In Arunachalam, the Tribunal awarded damages of $4,000 to an applicant who had suffered harassment over a period of several weeks because of her pregnancy. In Van Adrichem v. Lopes 2010 HRTO 1092, the Tribunal awarded damages of $5,000 to an applicant whose landlord harassed her because of her learning disability and mental health over period of several weeks. In Michelin v. Johnson, 2014 HRTO 321, the Tribunal awarded $1,000 in damages for a single incident of family status-based harassment. I note that the Michelin award reflected the lack of evidence regarding the effect the harassment had on the applicant. In the circumstances of this case, I find that damages a $4,000 are appropriate for the injury to the applicant's feelings, dignity and self-respect caused by the workplace harassment she experienced based on her marital status.

Order

32The Tribunal orders as follows:

1. Within 45 days of the date of this Decision, the respondent shall pay to the applicant $5,000.00 as compensation for injury to dignity, feelings and self-respect; and,

2. In the event that the respondent fails to make the payment described above within 45 days of the date of this Decision, the respondent shall pay post-judgment interest in accordance with section 129 of the Courts of Justice Act, R.S.O 1990, c. C.43;