Despres v. The Crossbar Inc., 2015 HRTO 1624

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Desiree Despres

Applicant

-and-

The Crossbar Inc.

Respondent

DECISION

Adjudicator: Leslie Reaume

Decision Date: December 1, 2015

Citation: 2015 HRTO 1624

Indexed as: Despres v. The Crossbar Inc.

APPEARANCES

Desiree Despres, Applicant

Self-represented

The Cross Bar Inc., Respondent

No one appearing

1This Decision arises from an Application alleging discrimination on the basis of pregnancy with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2Ms. Despres (the "applicant") was employed as a cook with The Cross Bar (the "respondent") in November, 2014. She alleges that when she disclosed her pregnancy her employer hired another cook to replace her. When the new cook was trained, the applicant's hours were reduced and she was terminated in late January, 2015.

3The respondents were notified of the Application on February 26, 2015. A Response was filed April 2, 2015. The respondent states that the applicant was terminated because she was seen a number of times sitting in an unsafe location near the fryers in the kitchen and texting on her cell phone without permission.

4The applicant filed a Reply to the Response. In the Reply the applicant denies the respondent's allegations.

5The Confirmation of Hearing was sent on June 8, 2015, to the address provided in the Response. The respondent did not meet the Rule 16 and 17 deadlines set out in the Confirmation of Hearing. The respondent did not attend the hearing on September 21, 2015, nor has the representative made contact with the Tribunal to explain the failure to attend. I am satisfied that the respondent had notice of the hearing and has chosen not to participate.

Decision

6For the reasons that follow, I find that the applicant has proven, on a balance of probabilities, that her pregnancy was a factor in her termination.

THE Applicant's evidence

7The applicant testified and adopted the contents of her Application and Reply as part of her testimony.

8The applicant testified that she was hired to work as one of two cooks in the restaurant in November, 2014. She was pregnant at the time but did not share this information with her new employer.

9When she disclosed her pregnancy it appeared to the applicant that the owner, Ken Ward, was supportive. The applicant had no limitations and no missed time from work. Shortly after she disclosed her pregnancy, she was told that the restaurant was looking to hire a third chef.

10The applicant testified that it took a few weeks to hire someone. The applicant and the head chef trained the new chef. The applicant testified that as soon as it became apparent that the new chef was able to manage on his own, the applicant's shifts began to be reduced.

11The applicant testified that she was assured by Ken Ward that the reduction in her work was temporary. The applicant explained that she needed the shifts because she was saving money to prepare for the birth of her baby in May, 2015.

12The applicant testified that she noticed that she was not scheduled for January 21, 22 and 23, 2015. On Friday, January 23, 2015, the applicant received a text from the head chef advising her that her shift for Saturday morning was cancelled due to the fact that the restaurant was not busy. She was then told her Sunday shift was cancelled as well.

13The applicant replied to the head chef and asked if they were going to continue to reduce her hours. The next text she received was approximately three days later from Ken Ward who advised the applicant that he would be in touch with her by mail regarding her position. Approximately two weeks later the applicant received a letter indicating that Ken Ward had exercised his right to terminate her during her probationary period. She was not provided with a Record of Employment.

14In the Response, the respondent alleges that the applicant engaged in inappropriate conduct at work by sitting close to the fryers and texting on her cell phone.

15The applicant denies that she ever sat near the fryers which would be hazardous. She testified that at times she sat in a chair with the permission of Mr. Ward, at the opposite end of the kitchen from the fryers. She also testified that she was told by the head chef who trained her that she could text occasionally when it was slow and if it did not interfere with her work. The applicant testified that on some days in the kitchen she could go hours without an order and as a result, she was able to get her prep work finished early in the shift and would "kill time" on her cell phone.

16The Response contained copies of two letters. One letter is dated January 26, 2015, signed by Mr. Ward, advising the applicant that the employer is exercising its right to terminate her within the probationary period on the basis that the "employment relationship was not a fit". The applicant did not receive this letter before she filed her Application with the Tribunal.

17The second letter is dated January 12, 2015, signed by Mr. Ward and the applicant, advising the applicant that she is being placed on probation for the following issues:

a. No use of cell phone while in kitchen;

b. Arrive 15 min prior to start of shift;

c. All kitchen procedures must be followed;

d. All prep at end of shift must be done;

e. All cleaning must be done.

18The letter concludes with the statement "in accordance with these conditions met, we will review continued employment in 90 days from this notice."

19The applicant testified that she was told once by Mr. Ward not to use her cell phone in the kitchen shortly before the January 12, 2015 letter. This contradicted the direction she had received from the cook but she had no difficulty accepting Mr. Ward's direction on this issue.

20With respect to the arrival time, the applicant was arriving at work five minutes before her shift. When the January 12, 2015 letter was discussed with her, she advised Mr. Ward that she had been arriving 30 minutes prior to her shift and was waiting on average 25 minutes until someone would arrive to open the restaurant. Mr. Ward allegedly told the applicant that he would resolve this problem by providing her with a key to the restaurant, but never did.

21The applicant testified that the last three issues in the letter of January 12, 2015 arose from one incident. The applicant's shift ran later than expected. She left the restaurant at 12:15 a.m. to catch the last scheduled bus home at 12:30 a.m. The applicant was scheduled on the first shift the following morning and decided to do the cleaning and prep when she arrived. The applicant testified that this was the only time she had left the cleaning and prep to the following day.

22The applicant testified that there were no further issues brought to her attention before she was terminated.

Analysis

23The Code provides that every person has a right to equal treatment with respect to employment without discrimination on the basis of grounds such as pregnancy.

24The applicant bears the legal onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, an applicant must prove that it is more probable than not that discrimination occurred. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 ("Pieters").

25Discrimination 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: Moore v. British Columbia (Education), 2012 SCC 61 ("Moore").

26Based on the applicant's account of the events, I am satisfied on a balance of probabilities that the applicant's pregnancy was a factor in the respondent's decision to terminate her employment.

27The applicant is not required to prove that her pregnancy was the only or even the primary factor in her termination. The reduction in her hours and her termination were set in motion following a discussion with her employer about her pregnancy. As soon as the third chef was hired and trained the applicant's shifts were reduced.

28With respect to the probationary letter dated January 12, 2015 and in the absence of any testimony by the respondent, I accept the applicant's testimony that she provided an explanation for the issues raised by Mr. Ward and accepted his direction. I also accept that there were no further issues raised with the applicant. This does not foreclose the possibility that the respondent decided to terminate the applicant because of these issues. However, in this case, there was no evidence from the respondent to explain the disciplinary process, the timing of the disciplinary letter and why the applicant was terminated before the expiry of the 90 day period despite the lack of recurrence. As a result, I have found that the applicant's pregnancy was one factor in the decision to terminate her.

REMEDY

29The 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.

30The 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 ("Heintz").

Injury to Dignity, Feelings and Self-Respect

31Prior 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) OHRBID 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.

32The 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".

33In 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.

34In Wratten v. 2347656 Ontario Inc., 2015 HRTO 1041, the Tribunal reviewed a number of the Tribunal's decisions on pregnancy-related discrimination at paras. 121 - 122:

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

35Having considered these decisions and the particular facts of this case, I would award the applicant $15,000.00 for injury to dignity, feelings and self-respect. This award is substantiated by both the objective seriousness of the respondent's conduct toward her and the applicant's own evidence about the effect the experience of discrimination had, and continues to have, on her. The applicant testified that when she accepted the job with the respondent she was new to Ontario and did not have much money saved. She was unable to find another job because she was six months pregnant by the time of her termination and this had a negative effect on her self-esteem. The applicant testified that it was extremely difficult and stressful trying to prepare for the arrival of her baby with no source of income. As a result of the termination, the applicant had to ask her mother for financial assistance until her parental leave benefits took effect in April, 2015.

Lost Income

36The applicant is entitled to lost wages which are attributable to the discrimination she experienced. The applicant requested income loss for the period from January 21, 2015 when she was taken off the schedule to mid-April when she began to collect her maternity benefits. The applicant testified that she earned $14.00 per hour and worked approximately 35 hours per week. Using those figures I have determined that her lost wages total $5,880.00 representing 12 weeks wages from January 21, 2015 to April 15, 2015. Lost wages are subject to statutory deductions.

Interest

37The applicant is entitled to interest on both monetary awards. The Tribunal generally awards interest calculated in accordance with sections 127 and 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended ("CJA"). Pre-judgment interest on compensation for injury to dignity, feelings and self-respect generally runs from the date of the infringement to the date of the final decision. The CJA provides a different formula for calculating special damages like pre-hearing income loss which recognizes that lost income generally accumulates over time.

38The CJA is not binding on the Tribunal, although it is often relied upon for calculating interest. The Tribunal has broad remedial powers which include determining the appropriate approach to pre-judgment and post-judgment interest. In this case, given that the applicant is not represented, the fact that she filed her Application almost immediately after her termination and the short duration of the income loss, I have exercised my discretion to simplify the date on which pre-judgment interest begins to run. Pre-judgment interest on all monetary awards under this Decision will run at a rate of 1.3% (in accordance with the CJA) from the date the Application was completed to the date of this Decision.

39In this case, the Application was completed and ready for service on the respondents on February 26, 2015.

40Post-judgment interest on both monetary awards will begin to accumulate 30 days after the date this Decision at a rate of 2% (in accordance with the CJA).

ORDER

41The Tribunal makes the following orders:

1. The respondent shall pay the applicant $15,000 for injury to dignity, feelings and self-respect arising from the infringement of her rights under the Code;

2. The respondent shall pay to the applicant the sum of $5,880.00 for lost wages, subject to statutory deductions;

3. The respondent shall pay pre-judgment interest on all monetary awards at 1.3% calculated from February 26, 2015, to the date of this Decision;

4. The respondent shall pay the applicant post-judgment interest at a rate of 2% on any amounts outstanding commencing 30 days from the date of this Decision in accordance with the Courts of Justice Act.