Watters v. Creative Minds Childrens Services LTO Daycare, 2015 HRTO 475

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelsey Ann Watters

Applicant

-and-

Creative Minds Childrens Services LTO Daycare

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: April 14, 2015

Citation: 2015 HRTO 475

Indexed as: Watters v. Creative Minds Childrens Services LTO Daycare

APPEARANCES

Kelsey Ann Watters, Applicant

Self-represented

Creative Minds Childrens Services LTO Daycare, Respondent

No one appearing

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex.

2A hearing was held on October 2, 2014 in Hamilton, Ontario. The applicant and her witnesses were in attendance. Neither the respondent nor a representative attended the hearing, despite a previous Interim Decision indicating that the dates were peremptory.

3For the reasons that follow, the Application is granted.

Procedural Background

4The hearing in this matter was originally scheduled for July 3 and 4, 2014 in Hamilton, Ontario. The hearing dates were set by way of a Notice of Hearing, dated February 10, 2014.

5On July 3, 2014, two hours before the hearing was scheduled to begin, the Tribunal received an email from Vicki McNabb on behalf of the respondent business, indicating that she had sent an email to the applicant explaining why the respondent business could not be at the hearing, that she had sought unsuccessfully to adjourn the hearing on two occasions in June, 2014, that she would like to “resolve this issue as soon as possible” and that she apologized for not attending the hearing despite both adjournment requests having been denied.

6The Tribunal did receive two adjournment requests from Ms. McNabb on behalf of the respondent business on May 21, 2014 and June 23, 2014. In both requests, the respondent indicated that it ran a daycare business, that an adequate staffing ratio had to be maintained and that staffing shortages on the dates in question were the reason for the adjournment requests. In one of the requests, the respondent said two staff members were going to be off work recovering from medical procedures. The Tribunal denied the first adjournment request on June 10, 2014 (2014 HRTO 860). The second request was also denied and the decision was communicated to the parties by the Registrar, with an indication that reasons would follow if requested in the final decision.

7The respondent business had been aware of the hearing dates since February 2014. Its failure to take steps at some time over the four months that it had to do so to ensure that adequate staff coverage was in place to permit it to carry on operating its business during the hearing dates did not constitute “exceptional circumstances” that would justify its requests for adjournments on the eve of the hearing.

8Despite the denials of the adjournment requests by the Tribunal, both of which were communicated to the parties well in advance of the hearing dates, the respondent business failed to attend on the first date of hearing, failed to send a representative on its behalf and, instead, sent the email described above. The applicant, her witnesses and representative were all in attendance and ready to proceed with the hearing. The applicant and her witnesses indicated that they all lost time off work and had to make childcare arrangements in order to attend the proceedings.

9In the circumstances, the Tribunal adjourned the two hearing dates. On July 24, 2014, two additional hearing dates were set for October 2 and 3, 2014, after consultation with the parties, with the dates being peremptory to the respondent business.

10Despite the peremptory nature of hearing dates, the respondent once again requested an adjournment on September 26, 2014. The reason for the request was, once again, that there were insufficient staff members for the respondent to run its business on the dates in question and also attend the hearing. Upon being notified by the Tribunal that the adjournment request was denied, that the dates were peremptory and would proceed as scheduled, the respondent sent no further communication to the Tribunal.

11On the dates scheduled, the applicant and all her witnesses were again present. The respondent failed to attend or to send a representative on its behalf, despite correspondence sent by the respondent organization indicating that counsel was involved and had been consulted.

12As a result, the hearing proceeded in the absence of the respondent.

THE LAW

13The relevant sections of the Code are reproduced below:

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.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

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. 2006, c. 30, s. 5.

45.2(2) For greater certainty, an order under paragraph 3 of subsection (1),

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

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

The evidence

14I heard from a number of witnesses on behalf of the applicant. Sandra Meggitt and Kirsten Helmer, both of whom were the applicant’s former co-workers, gave evidence, as did the applicant herself.

15The applicant was employed by the respondent daycare. She is a qualified ECE (early childhood educator) and worked in that capacity for one year and two months before the incident that gave rise to this Application occurred on November 23, 2012.

16The applicant was four and a half months pregnant at the material time. She generally worked in the toddler room, which had 6 to 8 children looked after by two staff members. Due to the illness of Kirsten Helmer, a fellow staff member, on November 22, 2012, the applicant was asked to fill in at the pre-school room.

17She gave evidence that it was difficult to lift the children in that room as they weighed around 40 pounds. Her evidence on this matter, corroborated by her witnesses, was that when toileting and hand washing, the children occasionally needed assistance and some lifting was required. She says she hurt her back that day performing those tasks as they were difficult to perform while at her stage of pregnancy. When asked to come in early at 8 a.m. and work in that room again the next day by the assistant supervisor, Melinda Muscat, she asked if, once other employees arrived at 9 a.m., she could be moved back to the toddler room given that she had hurt her back lifting the children on the previous day. She testified that Melinda agreed that another person would replace her in the pre-school room so she could return to her regular duties in the toddler room.

18However, at 8:45 a.m., Vicki McNabb, her supervisor, came in and told her that this was her job and if she could not do it, she should leave. She says that Vicki McNabb shouted at her during this conversation and was observed to be doing so by the children in the room and a staff member.

19That staff member, Kirsten Helmer, confirmed that Vicki “ranted and raved” at the applicant in front of the children and other staff and told her that this was her job and if she did not want to do it she should leave. When the applicant left, she was in the room with less than 8 children and when another child arrived, another staff member joined her. She said that the applicant’s departure did not result in understaffing or contrary to the guidelines governing child to ECE ratios.

20The applicant testified that she was upset after her encounter with Vicki McNabb and went immediately to her family doctor’s office at noon that same day because her obstetrician was on vacation. Her family doctor provided her with a note advising that she should not lift more than 25 pounds until she was assessed by her obstetrician because of the back injury sustained the day before.

21She called the Ministry of Labour and on the advice of someone within the Ministry, she returned to the workplace with the note at 2:30 p.m. and gave it to Vicki McNabb who in turn presented her with an “infraction letter” in which she indicated that due to numerous parent complaints and a refusal to work in the room to which she was assigned, she was being dismissed. Despite this document, a week later the respondent issued a Record of Employment indicating that the applicant had quit her job. That document was later replaced with one that said her employment had been terminated after she raised the issue with the respondent.

22The applicant says the disciplinary note dismissing her contained many inaccuracies. She was aware of only one parent complaint made because she was enforcing and communicating the employer’s health care policy and the parents were upset about the message she was delivering. She was never reprimanded for that incident. She testified that she had never been formally disciplined for any reason during the course of her employment. The infraction letter and dismissal was the first occasion that she had been disciplined by the respondent.

23With respect to the implication that there had been a serious incident involving her which concerned and impacted on the safety of children in her care, she says that she had signed a serious occurrence report on one occasion. The group had been moving from a classroom to a hallway when she and her partner noticed one child was not with them and they took immediate action. The matter was documented as required by Ministry guidelines but that it was not treated as a disciplinary matter for her or her co-worker.

24Finally, she also says that she never suggested that she could not change diapers as alleged in the disciplinary note.

25The applicant’s witnesses confirmed the applicant’s account of the amount of lifting that was required in the various settings in the respondent daycare and the necessity of lifting children in the bathroom and sink area.

26The applicant says that at the time she was dismissed by the respondent, she was visibly pregnant and it was difficult for her to find alternate employment. However, she says she found occasional contract or “supply” work in January. She saw a decrease in her earnings which then also impacted on the length of her maternity leave and the amount of benefits received during that leave.

27She gave evidence of the impact of the dismissal on her both financially and emotionally at what was an important time in her pregnancy and testified about the frustration and upset she felt at having the note from her physician ignored.

decision

28The applicant’s position is that as a result of her pregnancy and the functional limitations associated with her pregnancy, the neutral requirement that she bend down and lift children weighing about 40 pounds had a differential impact on her and caused her a disadvantage, specifically that it resulted in her experiencing back pain.

29She says she tried to speak to her employer and sought to remedy the situation and provided a note from her physician to back up her request. Not only was her request not considered or granted, she says as a result of that request, her employment was terminated.

30The applicant alleges that despite seeking a return to her normal duties in the toddler room for reasons relating to her pregnancy and the back pain that resulted from working one day in a setting that placed additional physical demands on her, rather than continuing to fill in for a co-worker in the pre-school room, her request was denied and she was told that she was required to remain in the pre-school room and that if she did not wish to do so, she should leave the workplace.

31I have uncontroverted evidence from a credible witness, Kirsten Helmer, that on the date of her dismissal, the applicant was denied the opportunity to return to her regular duties and told to leave if she did not want to remain in the pre-school room. Kirsten Helmer has also confirmed that when the applicant left, the required staff to children ratios were still within Ministry guidelines (one of the reasons offered for the termination of the applicant’s employment in the Response filed by the respondent). I also have a clear and cogent account from the applicant about the steps she took to persuade the respondent to reconsider and take her request seriously.

32I have no difficulty in concluding that the applicant has made out an infringement of her rights under the Code. For reasons relating to additional physical demands placed on her by the alternate work setting in the pre-school room to which she was temporarily assigned, and due to the functional limitations the applicant was experiencing related to her pregnancy, the applicant experienced back pain. When she sought to be returned to her regular work setting, which she described as within her capabilities even with the back pain, she was refused. Despite her providing a medical note later the same day supporting her request that she limit lifting to 25 pounds until assessed further by her obstetrician, the applicant’s request was not considered or granted and her employment was, in fact, terminated.

33The respondent’s failure to address the applicant’s request in any meaningful way and the termination of her employment on the same date constitute an infringement of the applicant’s rights under the Code.

remedy

34The applicant sought by way of remedy amounts for loss of wages and monthly bonuses totalling $8189.00 and $1000.00 for injury to her dignity, feelings and self-respect.

Lost Wages

35The applicant gave evidence that substantiated her loss of income leading up to her receipt of EI benefits and the birth of her child. She indicated that she sought and obtained occasional and temporary alternate employment during that time but was unable to secure full time work.

36The applicant testified that when she worked at the respondent business, she earned $13.30 per hour and usually worked a 40 hour week. Between the termination and her receipt of EI benefits, she obtained casual work totalling 129 hours at a wage of $12.00 per hour for gross earnings of $1,548.00.

37The applicant testified that she had intended to work 14 weeks more leading up to her maternity leave. She would have worked 560 hours at 13.30 per hour for a total of $7,448.00. She would also have been entitled to the monthly bonus of $290.00 per month for three more months. Her earnings for that period, had she not been terminated, would have been $8,318.00 gross. Taking into account her earnings of $1,548.00, the applicant is entitled to lost wages in the amount of $6,770.00, which amount is subject to statutory withholdings, to be paid within 30 days of the date of this Decision.

38The applicant is entitled to prejudgment interest on this amount in accordance with s. 128 of the Courts of Justice Act (“CJA”). The Ontario Court of Appeal has held that prejudgment interest on damages for lost salary should not be awarded prior to the date such payments were due: see Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 14 (ON CA), [2006] O.J. No. 13 at para. 27 (C.A.). In this case, the applicant’s lost wages would have run from November 23, 2012 for a period of 14 weeks. Prejudgment interest shall run on the compensation for lost wages from January 11, 2013, which is an approximate mid-point in the period for which compensation for wages is being ordered, to the date of this decision. The applicable prejudgment interest rate under the CJA is 1.3%.

39Although the applicant gave evidence that the amount of her EI maternity leave benefits were lower than they would have been had she not been terminated and that she had to cut short her maternity leave, she did not provide me with any specific amounts, calculations or documents to quantify or support an additional award to compensate for that period of time. As such, I have made no additional award relating to the reduction in maternity leave benefits.

Injury to Dignity, Feelings and Self-Respect

40In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paragraphs 52-54, the Tribunal canvassed the history of awards for injury to dignity, feelings and self-respect, stating:

(…)The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940, at para. 16.

The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53, at paras. 34-38.

41I accept that the applicant wanted to remain employed while pregnant and to maximize her maternity leave benefits. I also accept her uncontroverted evidence that she had to cut short her maternity leave by several months as a result of losing her job at the respondent business at the time that she did and that the events that brought her to this Tribunal frustrated her and negatively affected her life and her ability to remain with her child for the full maternity leave period.

42The loss of the right to be free from discrimination and the often corresponding injury to dignity, feelings and self-respect are intangible losses and difficult to quantify (McDonald v. Mid-Huron Roofing, 2009 HRTO 1306 at para. 52).

43In this case, the applicant, who is self-represented, originally sought $1000.00 in monetary compensation for the injury to her dignity, feelings and self-respect in her self-drafted Application. During the hearing that the respondent did not attend despite the peremptory nature of the date set, I raised the issue of the Tribunal’s jurisdiction in remedial matters and the ability of the Tribunal to award a higher amount than that requested, in appropriate circumstances. See Vipond v. Ben Wicks Pub and Bistro, 2013 HRTO 685, paras 48 – 57. The applicant indicated she was content to leave the issue of the quantum of the monetary compensation in the hands of the Tribunal.

44An award of monetary compensation for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, since doing so would trivialize the social importance of the Code by effectively creating a “licence fee” to discriminate. See ADGA Group Consultants Inc. v. Lane (2008) 2008 CanLII 39605 (ON SCDC), O.R. (3d) 649 (Div. Ct.) at para. 152.

45In my view, having regard to the objective and subjective considerations, an award in the amount originally requested by this unrepresented applicant would not be appropriate in the circumstances of this case. I am mindful of the fact that the hearing proceeded in the absence of the respondent. However, it cannot be the case that the considerations that lead to a higher award of monetary compensation to an applicant whose rights have been infringed can be thwarted and avoided by a respondent who elects, after numerous reminders and warnings, to not participate in the Tribunal’s proceedings.

46I have considered the matter carefully, and taken into account the factors outlined above, such as the applicant’s goal of continuing in a job she had held for almost a year and a half and the impact of the respondent’s refusal to consider the medical note obtained to substantiate her temporary inability to lift heavier children. I have also considered the impact of the abrupt termination of her employment on her both financially and emotionally and the fact that it took place when she was focused on her pregnancy, the impending birth of her child and when she had difficulty finding alternate employment.

47Finally, I have reviewed Tribunal caselaw involving similar situations in arriving at my decision as to the appropriate award in the Application at hand. I award the applicant the sum of $15,000 as monetary compensation for the infringement of her right to be free from discrimination to be paid within 30 days of the date of this Decision. (See Maciel v. Fashion Coiffeurs, 2009 HRTO 1804, Guay v.1481979 Ontario, 2010 HRTO 1563, Osvald v. Videocomm Technologies, 2010 HRTO 770, Charbonneau v. Atelier Salon & Spa, 2010 HRTO 1736, Bickell v. The Country Grill, 2011 HRTO 1333 and Graham v.3022366 Canada Inc., 2011 HRTO 1470).

48The applicant is entitled to prejudgment interest on this amount from the time the cause of action arose, which is the date of her termination on November 23, 2012, to the date of this decision. The applicable prejudgment interest rate under the CJA is 1.3%.

ORDER

49In the result, I order:

a. Within 30 days of the date of this Decision, the respondent will pay the applicant the amount of $6,770.00.00 as lost wages, subject to statutory withholdings, plus prejudgment interest on this amount at the rate of 1.3% in accordance with para. 38, above;

b. Within 30 days of the date of this Decision, the respondent will pay the applicant $15,000.00 as monetary compensation, together with prejudgment interest on this amount at the rate of 1.3% from November 23, 2012 to the date of this Decision;

c. Any amounts unpaid will be subject to postjudgment interest at the applicable rate under s. 129 of the Courts of Justice Act, R.S.O. c. C.43 to run starting 30 days from the date of this decision.