Golovaneva v. Atkinson Schroeter Design Group Inc., 2015 HRTO 1471

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Natalya Golovaneva

Applicant

-and-

Atkinson Schroeter Design Group Inc.

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: November 3, 2015

Citation: 2015 HRTO 1471

Indexed as: Golovaneva v. Atkinson Schroeter Design Group Inc.

APPEARANCES

Natalya Golovaneva, Applicant

Alayna Miller, Counsel

Atkinson Schroeter Design Group Inc., Respondent

Sonja Schroeter, Representative

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of sex, specifically because of pregnancy.

2The applicant alleges that her pregnancy-related disabilities were not properly accommodated and that her pregnancy was a factor in her termination. The respondent denies these allegations and alleges that the applicant was fully accommodated with the flexibility she requested. The respondent also alleges that the applicant was on probation and her termination was based entirely on an assessment of her performance.

The Parties

3Natalya Golovaneva (the “applicant”) graduated from Algonquin College with a degree in design in May, 2014. She was employed with the respondent as a junior designer. The applicant was represented by counsel.

4Atkinson Schroeter Design Inc. (the “respondent”) is an interior design firm which has been doing business in Ottawa, Ontario for 38 years. Sonja Schroeter, the principal designer and owner of the firm, acted as the representative of the respondent and the primary witness. As a result, I have referred to Ms. Schroeter as the respondent throughout the decision.

Decision

5For the reasons that follow I find that the applicant has proven, on the balance of probabilities, that there was a failure to accommodate her pregnancy-related illnesses and that her pregnancy was a factor in her termination.

Preliminary Issues

6The hearing was confirmed by the Tribunal on March 11, 2015, for two days commencing July 21, 2015. Neither party was represented at this time.

7On July 10, 2015, the Tribunal was notified that both parties had just retained counsel. In the case of the applicant, counsel had been retained to prepare and attend the hearing. In the case of the respondent, counsel had been retained for the purpose of engaging in settlement discussions only.

8On July 15, 2015, the respondent requested an adjournment of the hearing on the basis that counsel required more time to prepare. The adjournment request was opposed by the applicant and the adjournment was denied with reasons to follow in this Decision.

9The Tribunal’s Practice Direction on Scheduling reads as follows:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

10In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at para. 4, the Tribunal stated that it is not only the interests of the parties that must be considered in deciding whether or not to grant an adjournment. The Tribunal is also obligated to ensure that public resources are used effectively. For this reason, once a hearing has been scheduled, parties have 14 days from the Notice of a Confirmation of Hearing to consult with each other on alternate dates and to advise the Tribunal if no agreement can be reached. Adjournments after this period are granted only under exceptional circumstances.

11The Tribunal has held that a party’s decision to retain counsel after the hearing has been scheduled is not an “extraordinary circumstance” justifying an adjournment simply because counsel is unavailable or unprepared: Wilson v. York (Regional Municipality), 2009 HRTO 2020, and Schenk v. OSAD, 2010 HRTO 446.

12There were no extraordinary circumstances presented to me which would explain why the respondent chose to retain counsel so close to the hearing and why counsel required more time to prepare. Both parties have had since March, 2014 to retain counsel. While the applicant also retained counsel at the last minute, she did so in a manner which is consistent with the Tribunal’s Rules and jurisprudence and was ready for hearing.

13Counsel for the respondent did attend the hearing for the purpose of engaging in settlement discussions. I deferred commencement of the hearing for a short period of time to permit the parties to meet privately without the Tribunal present. When the hearing commenced, counsel for the respondent reiterated the request for an adjournment. He argued that the respondent would prefer to be represented and needed time to prepare.

14The applicant’s counsel opposed the adjournment. She argued that a delay in the hearing would escalate the applicant’s legal costs, which could not be recovered in the proceeding, and would cause her further distress. The applicant, who was breast feeding at the time, was not producing adequate milk for her newborn. This health issue she attributed to both the stress of the hearing and the fact that she was without income of any kind.

15Following my decision to deny the respondent’s request for adjournment, the applicant’s counsel made a request to amend the Application to seek a higher amount of compensation for injury to dignity, feelings and self-respect. I did not grant the request but indicated that the parties could argue this issue in their final submissions.

Partial Resolution of Issues

16During final submissions, the respondent initiated a proposal for resolving the confusion which had arisen about the applicant’s employment status. The respondent also provided the applicant, on a without prejudice basis, compensation for some of the income loss that she was claiming, recognizing that the termination was a stressful experience for the applicant. The applicant was also offered a positive letter of reference. The respondent is to be commended for taking this initiative despite her strong view that the applicant’s pregnancy was not a factor in the termination.

17As a result of that resolution, I have not found it necessary to determine the applicant’s employment status. The parties agree that she was hired to work full-time and was hired subject to a minimum three-month probationary period.

18I also note that this is not a case where the exact nature of the employment status has any bearing on my conclusions about why the applicant was not retained as an employee or on the issue of remedy.

Witnesses

19The following witnesses testified at the hearing: the applicant; Jessica Webster, the respondent’s office manager; and Sonja Schroeter. I determined that it would not be necessary to hear evidence from the applicant’s husband since he was not privy to any of the incidents which make up the factual context for this dispute and the applicant was able to testify to the impact of her experiences. There was no order made excluding witnesses.

Documents

20The applicant produced a book of documents for use at the hearing. I gave the respondent time to review the book prior to commencing the testimony. The respondent was able to confirm that all of the documents contained in the applicant’s book of documents had been seen by her with the exception of those related to the applicant’s post-termination job search. The respondent produced some new documents during the hearing. I gave the applicant an opportunity to review them to ensure that there was no prejudice associated with the late production.

Testimony

21Much of the factual evidence is uncontested. Where the evidence is contested I have indicated so and described both the applicant’s version and the respondent’s version of the events.

22The applicant graduated in May, 2014, with a Bachelor’s Degree in Interior Design from Algonquin College. She applied for a junior designer position with the respondent in July, 2014. She was interviewed and offered the position and received a letter of employment indicating that she would be working full-time with a minimum three-month probationary period. It was understood, given her limited experience, that the applicant would require mentoring and supervision on all tasks assigned to her.

23The applicant started work July 21, 2014. At that time there were two full-time junior designers at the firm. The first designer, Suzan, had completed her probationary period but had indicated that she did not intend to stay on with the firm. Throughout the period of the applicant’s employment, Suzan remained with the firm working work part-time. The second designer, Kyle, was hired in 2013. He had injured his shoulder but was working full-time while he awaited surgery in the summer of 2014. After surgery, Kyle would not be returning right away to full productivity. The purpose of hiring the applicant was to accommodate these temporary staffing issues and as a long-term replacement for Suzan.

24The respondent testified that with the workload in her firm, she relies on a team of junior designers. She operates an office that can accommodate 10 people and she runs a very “tight ship” with a contingent of full-time employees. There are highs and lows in the work coming into the office and contract workers are retained to deal with those periods. As far as the respondent could recall, full-time employees have never had their earnings interrupted.

25There is no dispute that the applicant was hired to work full-time and that her probationary period would be at least three months.

26The applicant worked, as expected, under the close supervision of the respondent and another senior designer named Sarah. The office was organized with various work stations all equipped with the technology the employees required to complete their work. For the most part, the applicant sat at a standard open workstation which was assigned to her.

The Applicant’s Performance Prior to Her Pregnancy and Illness

27The applicant’s first nine weeks of work appear to be unremarkable. The applicant testified that she was learning a great deal and enjoying her work. She stated that the respondent had been good to her and appeared to be happy with her work. The applicant stated that Sarah, in particular, made her feel welcome and was very good to her. She enjoyed the atmosphere at the firm and was constantly learning new things. As far as the applicant was aware, the respondent was very happy with her work. The applicant received direction and assistance but not criticism or discipline. The applicant readily admitted that she made mistakes as part of the normal learning process and that she benefited from the advice she was given by the respondent.

28The respondent also acknowledged that the applicant was performing as one would expect for a junior designer. With respect to some of the technical aspects of her work, there was a need to help her grow. The applicant was drafting and working on 3D renderings, attending site verifications and revising drawings after those visits. The respondent’s impression was that the applicant was an entry-level designer and needed a lot of coaching, which the respondent admitted was typical.

Pregnancy and Accommodation

29Approximately nine weeks into her employment, the applicant began to feel extremely unwell. She was experiencing severe headaches which appeared to be triggered by intolerance to smells. She was also experiencing nausea and vomiting so severe that on her bus commute into work she would need to get off the bus two or three times. She was also finding it hard to concentrate at work.

30The applicant soon discovered that she was pregnant. On September 18, 2014, she sent an email to the respondent advising that she was pregnant and that she was having migraines and sensitivity to smells. She also noted that she seemed to be much more functional in a controlled environment at home. The applicant described to the respondent how much she was enjoying working in a supportive environment with the rest of the team. The applicant requested accommodation for 6 to 7 weeks during which she would work part-time hours from home. In the email she also described herself as a good worker, fast, punctual, and organized, and someone who learns quickly and follows instruction. She noted that Sarah was also happy with her work.

31The applicant concluded the email with the statement: “you are a mother too as I hope you will understand me. I will also understand your decision to let me go.” The applicant stated that she was nervous about sending this email because she assumed that the news of her pregnancy would not be welcome. She assumed that most employers would find it inconvenient to accommodate a pregnant employee.

32On the contrary, the respondent was surprised but happy for the applicant and thought her request for accommodation was manageable. The respondent wrote back to the applicant on Friday, September 19, 2014, congratulating the applicant on her news and indicating that she was willing to explore the option of having the applicant work from home if she was able to come to the office from time to time to review ongoing work with the respondent. She asked the applicant to come into the office on Monday for approximately one hour to make some plans and discuss the applicant’s current work.

33The applicant came into work on Monday, September 22, 2014. The applicant testified that there was never a discussion about a firm schedule but rather a general discussion about her need for flexibility. She asked to come to the office at 11:00 a.m. rather than early in the morning. She also requested part-time work she could do from home.

34The respondent testified that she gave the applicant as much flexibility as possible. The applicant had the computer software she needed at home (or so the applicant and respondent initially thought). It was arranged that the applicant would receive her work by accessing a “dropbox” folder rather than dialing into her work computer from home. Although the applicant believed that Sarah had the ability to access her work computer remotely, the respondent testified that this was not the case and that no person in the firm was permitted to do so.

35During the first week the applicant began to feel that the accommodation was not ideal. She was coming into the office more often than she could manage and the first week she took the entire day off on Friday because of fatigue. The applicant was also unhappy about the fact that she could not obtain remote access to her emails. The accommodation lasted two weeks, during which she worked some hours in the office, some at home and was off completely for three days.

36As far as the respondent understood the accommodation was working. The applicant had a vague recollection of telling the respondent that she was coming into the office too often but she could not remember precisely when she raised this issue or what the response was.

37There appear to be a number of explanations for the difference in perspective between the applicant and the respondent on how the accommodation was proceeding. First, the applicant does not appear to have reported her difficulties with the arrangement to anyone in any detail. She admits that one day she simply disappeared from the office without telling anyone because she was concerned that if she stayed she would be given more work to do in the office.

38Second, during the first week of her accommodation, the applicant was carrying over work from the previous week which was being coordinated by Sarah. The respondent was not directly involved in the details of that work.

39Third, the applicant had some expectations about her accommodation which she did not communicate in detail to the respondent. For example, she testified that she expected to work about half her regular hours and mostly from home; she expected not to attend site visits; and she expected to spend one or two days maximum in the office per week and communicate by telephone the rest of the time.

40None of this would be an impediment to a successful accommodation process. In a case like this, where the accommodation is flexible and fluid for a short period of time, it can be achieved through proper communication and collaboration on the part of both parties. However, in this case, the accommodation came to an abrupt end on October 7, 2014.

Site Verification Visit

41The applicant’s version of this incident is that she was asked to come into the office on October 7, 2014, but not told that she would be going on a site visit to verify drawings. She was extremely ill that morning and had asked if she could come in at 11:00 a.m. When she arrived at the office, she learned about the site visit and asked the respondent if someone else could go in her place because of how she was feeling. She was also apprehensive about travelling to the site visit, not having access to a washroom, and what smells she might encounter at the destination. The applicant was prepared to stay behind at the office and do other work.

42The applicant testified that the respondent became very frustrated with her, yelled at her, told her that she had no other work for her and sent her home. The applicant testified that she was told she would be called when she was needed.

43The applicant testified that she felt “horrible” about what had just happened. She was unsure whether or not she had a job and she did not know if she would be called back. She cried all the way home, blaming herself and feeling ashamed about being pregnant at the wrong time.

44The respondent’s version of this incident is that she arranged the site visit the night before with the client. She thought she had mentioned the site visit to the applicant the day before. She was fair in her testimony, allowing for the possibility that she had been mistaken about advising the applicant about the site visit the night before. Jessica Webster, the office manager, testified that the respondent told her that the site visit would need to be moved because the applicant was coming in at 11:00 a.m.; however, there was nothing which would confirm the respondent’s belief that the applicant knew about the site visit before she came into the office.

45In any event, the applicant arrived at the office and was told by the respondent to prepare the drawing and the tools she would need for the site visit. The respondent acknowledged that the applicant told her that she was not well enough to attend and asked if Kyle or Suzan could take her place. The respondent testified that it did not appear to her that the applicant was that unwell. The respondent’s perspective was that she had brought the applicant into the office specifically for the purpose of attending the site visit and the follow-up drafting work. Everyone else was engaged with other work and the respondent was on a tight timeline.

46The respondent testified that she had nothing else to give the applicant and told the applicant to leave. She denied yelling at the applicant but admitted she was frustrated and may have been a bit more firm than usual. The respondent testified that in her view it was clear the applicant was able to come on the site visit but was just refusing to do so. In the end, the respondent attended the site visit on her own and gave the follow-up work to Suzan.

47The respondent testified that as a result of the applicant’s refusal to attend the site visit, the respondent began questioning the applicant’s commitment to the work and to being part of a team. She testified that the applicant’s attitude had changed and suddenly she was choosing what work she would do. The respondent testified that while she was trying to accommodate the applicant, it now appeared to her that there had been a change in the applicant’s attitude and the accommodation was one-sided. The respondent testified that when she is evaluating a person in the context of a probationary period, these kinds of things come into play.

48The respondent acknowledged that she could have given the follow-up work to the applicant, but she chose to give it to another junior designer. She also acknowledged that she would not have responded the same way if another junior designer had suddenly become ill and could not attend a site visit. The respondent’s view of the applicant at that time was that the applicant was able to attend the site visit but preferred not to, which she distinguished from a person who had a good faith reason for not doing the work.

October 7, 2014 to the Applicant’s Return to Work October 29, 2014

49After the site visit incident, the applicant did not hear from the respondent. On October 17, 2014, the applicant initiated contact with the respondent advising that she had not heard from the respondent since October 7, 2014. The applicant stated that she would soon be 12 weeks pregnant and based on her previous pregnancy, expected to be feeling well that week and able to return to work full-time without accommodation.

50On Monday, October 20, 2014, the respondent emailed the applicant advising her that she was looking at the current workload for that week and would let her know if she required any assistance. The applicant replied to the email that evening, advising that she was available that week and the following week apart from an appointment one afternoon.

51On the afternoon of Friday, October 24, 2014, the applicant received an email from her professor and mentor at Algonquin College inquiring about the applicant’s health and work and advising that an email had been received from the respondent asking for assistance in finding another junior designer. On October 6, 2014, the day before the site visit, the respondent had emailed her contact at Algonquin College with the following message:

I am wondering if you have knowledge of junior designers with 1-2 years of corporate design experience.

We are looking for creative, hard working, quicker learner, punctual, driven designers who are comfortable working in a dynamic interior design environment.

I look forward to hearing from you shortly…

52When the applicant saw the email she was certain the respondent was looking for a replacement for her. The respondent denied this and testified that the firm is always looking for talented junior designers and often reached out to Algonquin College. Jessica Webster testified that the advertisement to Algonquin had to do with replacing Suzan.

53Following receipt of the email from Algonquin, the applicant sent an email to the respondent the evening of Friday, October 24, 2014, reiterating that she was ready to return to work full-time.

54On Monday, October 27, 2014, the respondent wrote to the applicant advising that at this point, the respondent could offer only contract work and that the respondent would give the applicant a call if she needed her.

55On the same day, the applicant’s contact from Algonquin sent her a copy of another email from the respondent regarding the job posting. It states:

We are always looking for dynamic, creative junior designers who work well in a team environment, are able to take constructive criticism and instruction. They will be supporting our design team on a multitude of tasks from site verifications and measuring, planning, research of products and selections, maintenance of design library, preparation of working drawings etc.

56On the morning of Tuesday, October 28, 2014, the applicant responded to the respondent’s email of October 27, 2014. The applicant requested an explanation for the change in her employment status. The applicant had never had a situation prior to her pregnancy where there was insufficient work to give her and now she was aware that the respondent was reaching out to Algonquin for new candidates.

57On the afternoon of Tuesday, October 28, 2014, the respondent emailed the applicant. She did not respond directly to the applicant’s question, but rather, asked if the applicant would be available for work the following day because she required assistance with a project in progress.

58The applicant emailed back immediately advising that she would be in the office at 8:15 AM the next day. The applicant commenced full-time hours once again on October 29, 2014.

59The respondent testified that the applicant was not returned to work sooner because she had no work for the applicant to do. The respondent testified that she had recently “rebranded” her firm and as a result, she had spent less time cultivating new contracts.

60Jessica Webster testified that during the period before the site visit the firm was very busy. The firm was planning an open house for September 25, 2014 to launch its new brand. Ms. Webster testified that after the firm experienced “a bit of a dip” in work. Ms. Webster testified that there was less work to give staff although she could not recall precisely when the reduction in work occurred and she did confirm that both Kyle and Suzan were working at that time.

Return to Work October 29, 2014 to Termination November 10, 2014

61The applicant states that when she returned to work she was asked to sit at the reception desk. She understood this to be a sign that she was unwelcome. She had not been hired to do reception work and the computer at the reception desk would not accommodate her work. In the end, she was not at the reception desk for long because her work required her to move to another station.

62This situation was explained by both the respondent and Ms. Webster, who testified that the junior designers are asked to fill in when Ms. Webster is on vacation. She had not taken vacation during the period of the applicant’s employment and as a result, the applicant likely would not have known that she was expected to help out. The applicant was also not in the office the week before Ms. Webster went on holiday when she gave the junior designers instructions on how to manage the reception area in her absence.

63The applicant testified that she also felt unwelcome when she returned because Suzan was working at her station. This was not explained by the respondent. I accept that there were a number of pods in the office with similar equipment, but I accept the applicant’s testimony that prior to her pregnancy she worked repeatedly at a station that she regarded as her own, with a computer set to her preferences and a telephone which matched her extension number. As a result, the applicant encountered some difficulties working at other stations that were not necessarily set up for her to do her work as efficiently as her own, although she did agree that for the most part, each work station had the same equipment. For example, the applicant had no access to her email until Ms. Webster returned from her vacation and set up the applicant’s log-in on one of the “touch down” stations. Ms. Webster also fixed some minor software issues.

64Ms. Webster testified that as soon as she returned to work after one week of vacation, the office was very busy. The applicant was working full-time hours along with Kyle. Suzan was also working part-time. Ms. Webster was aware that this new work had come in during her vacation because she was required to enter the new files into the log when she returned.

Termination meeting

65The respondent testified that during the short period from October 29, 2014 to the date of termination, November 10, 2014, there were gaps in the applicant’s work, her demeanour had changed and her attention to detail was not the same. The respondent testified that she was concerned about the applicant’s abilities and her desire to do the work.

66On November 10, 2015, the applicant requested a meeting with the respondent to discuss her performance and her employment status. The respondent indicated that she would be available at the end of the day and asked the applicant to send her the request for a meeting by email.

67During the meeting the respondent advised the applicant that she was not improving and that the respondent was letting her go. There was no letter of termination. The applicant did not recall the respondent providing her with any specific examples of performance issues.

68The respondent testified that she had taken time to think about the applicant’s overall performance, including her capacity to keep pace with the work in a very dynamic environment. The respondent testified that she is often rushing and managing a number of different things at the same time. She found that the applicant was having difficulty keeping up with the pace, and she had concerns about the applicant’s capabilities. The respondent testified that she advised the applicant that there were errors in her drawings which needed to be corrected by others and that she did not think that her capacity and capabilities were meeting the requirements of the firm.

69The respondent testified that she was thinking about terminating the applicant the week before November 10, 2014, but she wanted to see how the applicant would perform. The respondent testified that by the week of November 3, 2014, the applicant was headed toward termination because there was a decline in her performance. The applicant had worked three days the previous week, having returned to work on October 29, 2014.

70The respondent testified that terminating the applicant was not an easy thing to do, however, with the complex work that needed to be done on pressing deadlines it was important to the respondent to find junior designers who had the right qualities.

71The parties agreed that there had been no formal performance evaluation conducted prior to this meeting. They also agreed that the applicant had never been advised prior to this meeting that her job was in jeopardy because of her performance.

72The parties also agreed that the applicant was emotional and upset and accused the respondent of terminating her employment because of her pregnancy. The respondent told the applicant this was not true – that she had made every accommodation for the applicant but the environment was fast-paced and errors in drawings and other mistakes affected the firm’s relationship with its clients.

Performance Issues

73The respondent testified in a general sense about her opinion of the applicant’s capabilities. She also testified about three specific examples of mistakes which she states were factors in the decision to terminate the applicant.

74The first issue occurred while the applicant was working from home during her accommodation. When she provided the respondent with drafting work, there was a watermark on the document which indicated that the applicant’s version of the drafting software was an educational version. No one in the office could remove the watermark so the drawing was redone. The problem was avoided going forward by providing the applicant will a full version of the software for her home computer. Time was lost in re-drafting and the respondent testified that the applicant should have anticipated this problem. The designer who did the drafting did not testify so I do not know how labour intensive this was, but it appears clear that no one anticipated that this would be a problem, and when it was discovered it was corrected. It was not treated as a disciplinary issue at the time and the applicant was not advised that the respondent considered her responsible for this problem. For those reasons I do not consider this a legitimate performance issue.

75The second performance issue was the site visit on October 7, 2014. For the reasons that I have set out below, I do not consider this a performance issue on the applicant’s part but rather a failure to accommodate on the respondent’s part.

76The third incident arose during the period from just before the termination. The applicant was given a space planning assignment. In her draft she neglected to include a series of columns. The drawing was given to another designer to add the columns and then the drawing was returned to the applicant to complete. As was the case with all of the work produced by the firm, the final document was reviewed and approved by the respondent before it was sent to the client. However, the respondent testified that this contributed to her concerns about the applicant’s capabilities. On this issue I am prepared to give the respondent the benefit of the doubt that an error of this kind would need to be drawn to an employee’s attention and corrected.

77The respondent stated that the evaluation process was ongoing throughout her employment. The applicant was tested on a variety of tasks to see how she would perform, how she reacted to various project deadlines and obligations, and how she interacted with design team members. The respondent concluded that the applicant was not integrated well with other team members, she was not a strong enough designer, and she did not appear to be a good fit for the firm.

78The respondent stated that she did not see the need to sit down with the applicant and ask how she was doing or review her performance with her prior to termination. She had an overall impression of how the applicant was doing from close mentoring and supervision and she did not feel that the applicant was living up to expectations.

Impact

79The applicant testified that she was very upset and tearful. She went to the office to pick up her things and then went home. She felt that she had been treated unfairly and that she had been dismissed because of her pregnancy. She was extremely stressed about how she would manage without income.

80The applicant did not receive any payments in connection with her dismissal and no Record of Employment. She did not qualify for parental benefits because of the confusion about her employment status and the actions of the respondent in sending her home on October 7, 2014.

81The applicant testified that she looked for another job, but by the time of her termination she was visibly pregnant. She also testified that jobs for junior designers in Ottawa are very difficult to find because of the limited number of companies that do interior design. The applicant did not have a reference letter and could not explain her termination to a prospective employer

82The applicant’s due date was May 4, 2015. It was her plan take her leave one month before her due date, commencing April 3, 2015, and take a full year off.

83The applicant testified that she remains very stressed about the termination. She was a new graduate and could not afford to be without income. It will now take her significantly longer to acquire the hours she needs for her certification. She also testified that she had lost all confidence in herself and her self-esteem and that it will take her some time to find a new position when she is ready to return to work.

Analysis

84The Code protects against discrimination with respect to employment on the basis of sex, including pregnancy in sections 5(1) and 10(2).

85It is well established that human rights legislation is to be given a broad, liberal and purposive interpretation. In addition to the specific provisions related to discrimination, the Code contains a preamble which reflects the kinds of experiences the legislation is directed at remedying. It speaks not just to equality in relation to the law, but also to the values of understanding, mutual respect and dignity and the necessity to ensure that every citizen has the opportunity to contribute fully to the community. The analysis of a claim of discrimination under the Code must be animated by these important principles.

86Discrimination is not defined in the Code, however, it is found where a protected characteristic, in this case, disability, is connected to some form of adverse treatment experienced by the applicant. Where the applicant proves this connection and the respondent is unable to provide an appropriate justification, discrimination will be found to have occurred. See Moore v. British Columbia (Education), 2012 SCC 61.

87The Supreme Court of Canada has accepted that the duty to accommodate has both a substantive and procedural component; see British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 at paras. 22 and 42-45. The respondent must take adequate steps to explore what accommodation is needed, including obtaining the relevant information needed to effectively assess the accommodation options. The applicant’s role is to cooperate in the accommodation process, which most often involves responding in a timely fashion to the respondent’s requests for information about the applicant’s limitations. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649 (ON S.C.D.C.).

88In considering issues of credibility I was guided by the well-established principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

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 carries 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 as reasonable in that place and in those conditions. [emphasis added]

89I am also mindful of the Ontario Court of Appeal’s comments on credibility and reliability in R. v. Morrissey (1995), 97 C.C.C. (3d) 193, 1995 CanLII 3498 (C.A.) at p. 205:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

90In Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, the Tribunal stated, at paragraph 54:

Evaluating the reliability and veracity of a witness’s evidence is a multi-faceted exercise, where a conclusion of credibility develops from various interrelated findings, such as whether, on a balance of probabilities, the evidence was sufficiently probable, logically connected to other points, and/or buttressed by independent evidence; as well as findings with respect to the state of the witness, such as candour or evasiveness, capacity to perceive and remember, and attitude towards the parties. A finding of lack of credibility or reliability with respect to one aspect of a witness’s testimony does not automatically render the entirety of the witness’s evidence as incredible or unreliable. As such, a tribunal is entitled to accept or reject some, all or none of a witness’s evidence: see Loomba v. Home Depot Canada, 2010 HRTO 1434.

Conclusions

91There is sufficient evidence to find, on the balance of probabilities, that the applicant was not properly accommodated and that her pregnancy was a factor in her termination. In coming to these conclusions I have relied largely on the uncontested evidence and the respondent’s own description about the events leading to the applicant’s termination.

92The applicant’s pre-pregnancy performance was unremarkable and the respondent testified that the applicant was performing as she would expect a new graduate to perform.

93The commencement of the accommodation process was promising. Both parties did their part to create a flexible and fluid process. Before long, the applicant realized that the accommodation process needed some adjustment. However, I am prepared to accept that the respondent was unaware of the applicant’s views on this issue and I would not conclude that at this point there was a failure to accommodate.

94However, the accommodation came to an abrupt end when the respondent sent the applicant home on October 7, 2014. There is no dispute that the applicant told the respondent she was not well enough to attend a site visit but was willing to remain in the office and do other work. The respondent interpreted this as a change in attitude and an effort on the applicant’s part to pick and choose her work. The respondent concluded that the applicant was becoming uncooperative and lacking in commitment to the job.

95The act of immediately sending the applicant home without exploring her explanation, which connects her pregnancy to her inability to attend the site visit, and telling the applicant, a full-time worker, that she would be called in when she was needed, is discriminatory. The evidence establishes that this was a turning point in the relationship between the parties and that it animates the subsequent actions of the respondent in failing to contact the applicant, telling the applicant that the firm had only contract work available for her, conducting a search for another junior designer and then bringing the applicant back to work for a short period before she was terminated.

96The respondent was unable to explain why the applicant was not contacted after the site visit and why there was no work to give her when the firm was providing work to Suzan during the same period and reaching out to Algonquin for a new designer. The respondent also did not explain why she gave the follow-up work from the site visit to Suzan rather than to the applicant.

97The respondent was unable to explain the relationship between what Ms. Webster described as a “dip” in work and the necessity to effectively lay-off a full-time worker. I accept that there may have been some reduction in business as a result of preparations for re-branding the firm, but I have also taken into consideration the respondent’s testimony that in the past there had been ebbs and flows in the business and no full-time worker ever had their hours cut.

98In addition, the day before the site visit, the respondent reached out to Algonquin College indicating that the firm was looking for a junior designer. While I accept that the firm is always looking for talented designers, this was a very specific request for a candidate at a very specific time and it does not assist the respondent’s argument that there was a lack of work for the applicant.

99Following the site visit, the applicant had to initiate contact with the respondent. The applicant was only returned to work because she was direct with the respondent about her belief that the terms and conditions of her work had been changed. The evidence also establishes that the applicant returned for three days from October 29 to October 31, 2014, and that by the following week she was headed for termination. The termination occurred as soon as the issue about the missing columns arose. The evidence clearly establishes that the respondent was reluctant to bring the applicant back to work and that when she was returned to work she was terminated at the first opportunity.

100The evidence establishes, on the balance of probabilities, that there was a failure to accommodate the applicant’s pregnancy-related disabilities, and that the applicant’s pregnancy is linked to the termination. This is sufficient to satisfy the applicant’s burden of proof.

101The reasons given for the applicant’s termination are not clear, cogent or convincing. The respondent failed to establish that the educational stamp issue and the site visit were legitimate performance issues. There was insufficient evidence to establish that the incident with the missing columns was a mistake of such magnitude that it would lead to termination. There was also insufficient evidence to establish that any “dip” in work the firm was experiencing prevented the respondent from bringing the applicant back to work before October 29, 2014.

102There was also ample evidence that the respondent’s impression of the applicant changed following the announcement of her pregnancy and short period of accommodation. The respondent perceived the applicant as someone who was not progressing and not committed to the work. The respondent formed the impression that the applicant had an attitude problem and that the accommodation process was one-sided because the applicant was unable to attend the site visit. All of these impressions are related to the applicant’s pregnancy and her search for accommodation.

103For all of those reasons I find that applicant was not properly accommodated and that her pregnancy was a factor in her termination. I turn now to the question of the appropriate remedy.

Remedy

104The Tribunal’s remedial powers are set out in section 45.2(1) of the Code, which provides the Tribunal with the discretion to order monetary compensation for injury to dignity, feelings and self-respect, to order restitution other than through monetary compensation and to direct any party to do anything to promote compliance with the Code.

105The Code is remedial and not punitive. Orders of the Tribunal should provide individuals who have been discriminated against with access to fair and effective remedies tailored to the facts of the case in order to achieve this remedial purpose. See Heintz v. Christian Horizons, 2008 HRTO 22.

106The outstanding remedial issues which have not previously been resolved by the parties include the following:

• loss of wages from the date of termination, November 10, 2014, to the date of the applicant’s projected pregnancy leave, April 3, 2015 ($14,268.10);
• a contingency plan in the event that the applicant is denied the leave benefits;
• loss of income for a three-month period while the applicant looks for work following her parental leave; and
• compensation for injury to dignity, feelings and self-respect.

Injury to Dignity, Feelings and Self-Respect

107Prior to the coming into force of section 45.2, the Tribunal had developed relevant criteria for assessing damages to compensate for an applicant’s inherent right to be free from discrimination and for mental anguish. See, for example Ketola v. Value Propane Inc., (2000) O.H.R.B.I.D. No. 14, and Sanford v. Koop, 2005 HRTO 53. Since the coming into force of section 45.2, the Tribunal has found the criteria developed in those previous cases helpful in determining the appropriate damages for injury to dignity, feelings and self-respect. See Hughes v. 1308581 Ontario, 2009 HRTO 341.

108The Divisional Court, in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), at paragraph 153, held that the following are among the factors that the Tribunal should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment. The Court also recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee”.

109In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed the principles on which compensation for injury to dignity, feelings and self-respect are awarded, and noted the importance of fairness to both applicants and respondents.

110The applicant initially requested $3,500.00 for injury to dignity, feelings and self-respect. This is below the range of similar cases, which generally fall between $10,000.00 and $20,000.00. At the commencement of the hearing the applicant made a request to amend her Application to increase the compensation for injury to dignity, feelings and self-respect.

111I have determined that the request to increase compensation for injury to dignity, feelings and self-respect should not be granted and that the applicant should be awarded the $3,500.00 she initially requested. My reasons for determining that this award is appropriate in the circumstances are based entirely on the discrete facts of this case.

112In considering requests to amend applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent(s). See, for example, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

113The applicant retained counsel and on July 10, 2015, notified the respondent that the Tribunal routinely awards more than $3,500.00 in compensation. The applicant indicated that she would be seeking a higher sum in compensation at the hearing if the matter was not resolved.

114The respondent retained her counsel for settlement discussions and to seek an adjournment of the hearing. The adjournment was denied at the commencement of the hearing and counsel for the respondent excused himself. It was at that point that the applicant made her request to amend the request for compensation.

115Despite the fact that the applicant retained counsel almost two weeks prior to the hearing, the applicant did not initiate a request to the Tribunal to amend the Application which would have been relevant to determining the respondent’s adjournment request.

116In my view it would be unfair to deny the adjournment on the basis of the respondent’s decision to retain counsel late in the process and not apply that same reasoning to the applicant, whose late request for increased compensation is also based on when she retained counsel. The applicant argued that the respondent made a strategic decision not to retain counsel to conduct the hearing. That is also true of the applicant who did not initiate a request for an order from the Tribunal prior to hearing despite putting the respondent on notice of her intentions.

117In balancing the Tribunal’s mandate for fair, just and expeditious resolutions against the circumstances of this case, particularly given the timing of the request and the prejudice to the respondent, I have concluded that it would not be appropriate to grant the applicant’s request.

Lost Income

118Subsection 45.2 (1)1 of the Code directs the Tribunal to consider what loss arose “out of the infringement” of the Code when considering the proper amount of monetary compensation. In Airport Taxicab (Malton) Assn. v. Piazza, (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.), the Court of Appeal for Ontario stated at para. 45017:

The purpose of the 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”. I find nothing in the language of the foregoing section which would import into it the limit on compensation which is imposed by the common law with respect to claims for wrongful dismissal.

119This is not to suggest that the claim for compensation for lost wages is unlimited. The Tribunal in Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, affirmed a limit which involves an evaluation of the impact of the respondent’s conduct on the complainant’s ability to earn a living. Compensation under the Code is the subject of a different analysis than the calculation of common law damages for wrongful dismissal. As a result, the period of compensation awarded under the Code may at times exceed, reflect or fall below the standard of reasonable notice. See: Osvald v. Videocomm Technologies, 2010 HRTO 770; Keele North Recycling v. Human Rights Tribunal of Ontario, 2013 ONSC 268 (Div. Ct.).

120To put the applicant in the position she would have been but for the discrimination is to put her back at the point at which she was working full-time with a short period of accommodation for the pregnancy-related disabilities she was experiencing at the outset of her pregnancy.

121The applicant’s request to be compensated for lost wages from the date of her termination to the date of her parental leave and an additional three months wages for a post-parental leave job search is within the range of loss that I would find attributable to the discrimination she experienced. The applicant’s job search will be difficult given the evidence that interior design jobs are in short supply in Ottawa.

122For those reasons, I grant the applicant’s request for loss of wages from the date of termination, November 10, 2014, to the date of the applicant’s projected pregnancy leave, April 3, 2015 ($14,268.10); and for a three-month period while the applicant looks for work following her leave ($8,442.99), which were calculated by the applicant on the basis of her earnings while she was employed and not disputed by the respondent. The request for three months wages following her parental leave was contained in the Application. A request at the hearing for four months wages was denied on the same basis as the request for increased compensation for injury to dignity, feelings and self-respect.

Interest

123The applicant is entitled to interest on both monetary awards to be calculated in accordance with sections 127 and 128 of the Courts of Justice Act, R.S.O. c. C.43, as amended.

Order

124The Tribunal orders the following:

1. The respondent shall pay the applicant $3,500.00 for injury to dignity, feelings and self-respect;
2. The respondent shall pay to the applicant the sum of $14,268.10 subject to statutory deductions for loss of wages from the date of termination, November 10, 2014, to the date of the applicant’s projected pregnancy leave April 3, 2015;
3. The respondent shall pay to the applicant the sum of $8,442.99 for loss of wages for a three-month period while the applicant looks for work following her parental leave;
4. The respondent shall pay pre-judgment and post-judgment interest in accordance with sections 127 and 128 of the Courts of Justice Act.

125I will remain seized of any issues arising from the applicant’s application for parental leave benefits. If the applicant is denied benefits, the hearing will be reconvened by conference call and the parties will be given an opportunity to make submissions on the implications of that denial. If the applicant obtains benefits, the parties are to advise the Tribunal within 30 days of that decision.