HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shanelle Richards Applicant
-and-
905950 Ontario Ltd. o/a Storybook Childcare Centre Respondent
DECISION
Adjudicator: Geneviève Debané Date: April 23, 2015 Citation: 2015 HRTO 517 Indexed as: Richards v. 905950 Ontario Ltd. o/a Storybook Childcare Centre
APPEARANCES
Shanelle Richards, Applicant Self-represented
1This Application alleges discrimination with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The Tribunal issued two separate Case Assessment Directions which directed that the respondent had to file its documents in accordance with the Tribunal's Rules of Procedure. The respondent never filed its documents nor did it confirm in writing that it would be attending the hearing. The respondent was warned that the hearing would proceed in its absence.
3The hearing was scheduled to start at 9:30 a.m. on April 7, 2015. The respondent was not present at that time. Due to exceptional reasons which were caused by serious public transit delays the Tribunal waited one hour, instead of the usual half-hour, before commencing the hearing.
4When the hearing resumed at 10:30 a.m. the respondent was still not present. I was satisfied that the Notice of Hearing and the two Case Assessment Directions were sent to the address provided by the respondent's representative and that the respondent had notice of the hearing. As such, the hearing proceeded in the respondent's absence.
The Evidence
5The applicant was the only witness who testified at the hearing.
6The applicant testified that she commenced employment with the respondent on September 17, 2013. The respondent is a small daycare centre and the applicant worked a split shift taking care of school age children before and after they attended school. In general, the applicant would work a total of five hours per day, five days a week. Some weeks she worked less than this amount and on other weeks she sometimes worked more if the children were not scheduled to be at school or to replace other employees. The applicant presented as evidence her weekly schedule which showed that she worked these hours.
7The applicant advised the respondent that she was pregnant in late December 2013. The applicant missed quite a few days of work because of her pregnancy in December 2013 and January 2014. At the hearing, the applicant advised that she had a difficult first trimester and that she was often sick, tired and therefore unable to work. She stated that after her first trimester she felt much better and was no longer sick.
8On January 10, 2014, the applicant was asked to sign an employment contract. Though the applicant did not understand why she was being asked to sign this contract she signed it anyway. This contract clearly identifies that she had started working for the respondent on September 17, 2013.
9The applicant then missed some more shifts because of her pregnancy. When she tried to return to work on January 18, 2014, her supervisor told the applicant that she had to get a medical certificate confirming that she was fit to work.
10The applicant made an appointment with her family doctor on January 27, 2014 who wrote a note confirming that the applicant was fit to return to work as of January 18, 2014. The applicant contacted the respondent to advise that she had this note and could work the next day. The applicant was told by her supervisor that she would get back to her.
11The applicant was eventually advised that she was a supply worker and that she was not necessarily entitled to work 25 hours per week. The applicant advised the supervisor that this was discrimination and that she was entitled to her hours. She retained the services of the Human Rights Legal Support Centre who intervened on her behalf. However, the respondent maintained its position and said that the contract that the applicant signed on January 10, 2014 confirmed her status as a supply worker.
12The applicant testified that during this time the respondent hired two new employees who worked the same position as her. She testified that her hours were given to these individuals. Her supervisor would call her on an irregular basis to offer her hours if these other employees were not available to work. Often these offers of work were at the last minute and she could not attend.
13However, the applicant did accept to work a three hour shift on March 10, 2014. On that day the applicant told the other person that she was working with that she was having difficulty working with the older group of children because they were aggressive and fighting. She said that no one assisted her. The applicant obtained another medical note from her family doctor advising that she could not work with aggressive children because of her pregnancy.
14March 10, 2014 was the applicant's last day of work and, for reasons known only to the respondent, she was yet again asked to sign another employment contract on that day. The respondent did not offer the applicant any hours after that date.
15Since the respondent maintained that the applicant was not terminated from her employment, it did not issue her a record of employment. The applicant testified that this caused her difficulty in obtaining employment insurance, but regardless, she was not able to qualify for her employment insurance benefits because she did not have enough qualifying hours.
16The applicant, who was single at the time, became financially dependent on her mother, and found herself without money at a time when she had an increase in expenses to prepare for the birth of her child. She also testified that she could not find employment because she was pregnant. This caused her much stress and anxiety because she was unsure as to her financial situation.
17Eventually, the respondent ceased operation on August 1, 2014, for reasons unrelated to this Application. The applicant does not dispute that the respondent is no longer in operation since that date.
Analysis
18The Code prohibits discrimination in employment on the basis of sex. This includes a prohibition on discrimination because of pregnancy. Sections 5(1), 9 and 10(2) read:
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.
- 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.
19The issues I need to determine are whether the applicant was discriminated against because of her pregnancy and, if so, what an appropriate remedy is in the circumstances of this case.
20I accept the applicant's evidence in its entirety. I note that there was no evidence presented by the respondent to contradict or cast any doubt on the evidence presented by the applicant.
21Further, the applicant's testimony was supported by documentary evidence. The hours presented by the applicant clearly show a pattern of the applicant working a consistent amount of hours. These hours cease in January 2014 after the applicant had a number of pregnancy-related absences. Further, I find the motives behind the respondent's request that the applicant sign an employment agreement on January 10, 2014 confirming that she was a supply employee to be highly suspicious. Regardless, of whether or not the applicant was a supply worker, I find that her reduction in hours is directly linked to the fact that she was pregnant and/or had pregnancy-related absences.
22I find therefore that the applicant has established on a balance of probabilities that the respondent ceased offering her hours of work because of her pregnancy. As such, the respondent discriminated against the applicant on the basis of sex contrary to section 5(1) of the Code.
Remedy
23The Code grants the Tribunal with a broad remedial authority once it has determined that a breach of the Code has been established. Section 45.2 of the Code states:
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:
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.
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.
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.
24In addressing relevant factors in determining damages for injury to dignity, feelings and self-respect, in particular cases, the Tribunal provided the following comments in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paras. 52-54:
(...) The Tribunal's jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant's particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
25The first issue that I will address is the loss of the applicant's employment income which was caused by the fact that the respondent failed to schedule her for work. I have considered the applicant's evidence and in my view, in light of the applicant's significant absences from work, the respondent had the right to ask the applicant to confirm that she was fit to return to work on January 18, 2014. The applicant obtained a medical certificate from her family doctor on January 27, 2014 and the respondent should have permitted her to return to work on January 28, 2014. I find therefore that the applicant is entitled to lost wages commencing from that date.
26Though at the hearing the applicant sought lost wages until late August 2014, the date on which she gave birth to her child, I find that the applicant's employment with the respondent would have ended on August 1, 2014. Since the respondent ceased its operation on that date, any loss of income which is attributed to the respondent's discriminatory conduct also ceases on that day. Therefore, I find that the applicant is entitled to lost wages commencing from January 28, 2014 to August 1, 2014, less the wages earned on the March 10, 2014 the only day that she worked for the respondent during this time period.
27Having reviewed the hours presented by the applicant, which did fluctuate, I accepted the applicant's evidence that she would at least on average work 25 hours per week based on a five day week. Though the applicant stated that she could have worked more hours on days that students did not have school, she had no evidence to support how many days or hours this would have been. Further, I also note that the applicant may have had an increased number of absences from January 28, 2014 to August 1, 2014 for pregnancy-related absences. I therefore find that a fair assessment is to deem that the applicant would have worked at least 25 hours per week.
28The applicant is entitled to lost wages from January 28, 2014 to August 1, 2014, calculated on the basis of 25 hours per week (based on a five day work week) at her hourly rate of 13 dollars per hour, less the wages earned on March 10, 2014. I have calculated this amount as being $8,671.00 in wages. This amount is subject to any required statutory deductions and withholdings.
29I accept the applicant's evidence that she was unable to find work during this time period and that she did not earn any income which should be deducted from this amount.
30The applicant is entitled to prejudgment interest on this amount in accordance with s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA"). The Ontario Court of Appeal has held that pre-judgment 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 January 28, 2014 to August 1, 2014. Pre-judgment interest shall run on the compensation for lost wages from April 28, 2014, which is an approximate mid-point in the period for which compensation for wages is being ordered, to the date of this decision.
Damages for injury to dignity, feelings and self-respect
31The applicant requests that the Tribunal award her $15,000 dollars in general damages. In reviewing decisions of the Tribunal where pregnancy was either a factor or the sole reason to terminate employment, I note that to date, awards for injury to dignity, feelings and self-respect have generally ranged between $10,000.00 and $20,000.00. See for example: Bickell v. The Country Grill, 2011 HRTO 1333 ($15,000.00), Graham v 3022366 Canada Ltd., 2011 HRTO 1470 ($20,000.00), Maciel v. Fashion Coiffures, 2009 HRTO 1804 ($15,000.00), Purres v. London Athletic Club (South) Inc., 2012 HRTO 1758 ($10,000.00), Guay v. 1481979 Ontario, 2010 HRTO 1563 ($10,000), Peart v. Distinct HealthCare Services Inc., 2013 HRTO 305 ($12,500.00), and Korkola v Maid Day! Maid Day! Inc., 2013 HRTO 525 ($13,000.00).
32In this case, I find that though the respondent maintained that the applicant's employment was not terminated, I find that in fact there was a de facto termination from employment. I find that the respondent's conduct in this case, in ceasing to offer the applicant steady and consistent hours after January 28, 2014, struck at the very essence of the employment relationship. Thereafter the applicant was basically treated as a last minute replacement when employees who were more junior than her could not work a scheduled shift. I note further, that these offers of work were infrequent and completely ceased after March 10, 2014. In these circumstances, I find that the respondent in fact terminated the applicant's employment when it ceased to schedule her for work after January 28, 2014.
33That said however, there is no dispute that the applicant's employment would have ended on August 1, 2014 when the respondent's business was closed. From an objective perspective the applicant was denied employment for a period of six months. She was a short term employee and given the nature of the respondent's business, in that it was a small enterprise and that there were issues involving the Ministry, she could not have had a reasonable expectation that she would have a long employment relationship with the respondent.
34I accept however that the respondent's conduct had a strong impact on the applicant at a time in her life during which she was particularly vulnerable. The applicant testified that she was single and became financially reliant on her mother for support during her pregnancy. Single pregnant women are particularly vulnerable, as they face increased financial burdens and are often alone in dealing with difficult health issues. In this case, the applicant had the additional hardship of losing her only source of employment income, and because of her pregnancy she could not find alternate employment. I accept that this caused the applicant increased anxiety and stress during a particularly vulnerable period of the applicant's life. All of this flows from the respondent's discriminatory conduct.
35Having considered this matter and in balancing the fact that the applicant's employment would have been terminated on August 1, 2014 and the impact that that the respondent's discriminatory conduct had on the applicant, I find that it is appropriate to award the applicant $10,000 dollars for injury to dignity, feelings and self-respect, which is at the lower range of the damages usually awarded by the Tribunal.
36The applicant is entitled to pre-judgment interest on this amount from the time the cause of action arose, which is the January 28, 2014, the date on which the respondent ceased scheduling her for her hours of work, to the date of this decision.
Public Interest Remedies
37In light of the fact that the respondent is no longer operating a business in Ontario, I decline to order any public interest remedies.
Order
38The Tribunal orders as follows:
a. Within 30 days of the date of this Decision the respondent 905950 Ontario Ltd. o/a Storybook Childcare Centre shall pay to the applicant the sum of $8,671.00 dollars, less any required statutory deductions and withholdings which represents lost wages from January 28, 2014 to August 1, 2014. Prejudgement interest shall be payable calculated in accordance with section 128 of the CJA as of April 28, 2014;
b. Within 30 days of the date of this Decision the respondent 905950 Ontario Ltd. o/a Storybook Childcare Centre shall pay to the applicant the sum of $10,000 dollars as compensation for injury to her dignity, feelings and self-respect for subjecting the applicant to discrimination based on her sex contrary to the Code. Pre-judgement interest shall be payable calculated in accordance with section 128 of the CJA as of January 28, 2014; and
c. Post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the CJA shall be payable from any amounts remaining unpaid as of 30 days after the date of this Decision.
Dated at Toronto, this 23rd day of April, 2015.
"Signed by"
Geneviève Debané Vice-chair