Marne v. Aptco Capital Corporation, 2015 HRTO 588

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aliyma Marne

Applicant

-and-

Aptco Capital Corporation

Respondent

DECISION

Adjudicator: Naomi Overend

Date: May 7, 2015

Citation: 2015 HRTO 588

Indexed as: Marne v. Aptco Capital Corporation

APPEARANCES

Aliyma Marne, Applicant ) Kelvin Forde, Representative

Aptco Capital Corporation, ) Robert Choi, Counsel

Respondent )

introduction

1The applicant, Aliyma Marne, worked as a housekeeper for the organizational respondent, Aptco Capital Corporation (“Aptco”), from October 22, 2012 until January 4, 2013. In a previous Decision on the merits, 2014 HRTO 1756, I found that the applicant’s pregnancy was a factor in the termination of her employment with Aptco.

2For reasons discussed in greater detail in the Decision, I concluded I had insufficient evidence on which to determine the appropriate remedy in the matter, and directed the applicant to file documentary evidence and witness statements in support of her request for monetary compensation.

3A further hearing date was scheduled to hear this evidence. At the outset of the hearing, counsel for the respondent objected to the Tribunal exercising its discretion to hear further evidence. I indicated that I would entertain this argument, but given the late notice, that I would hear the applicant’s evidence first. For reasons discussed below, I have determined that it would be appropriate for me to consider the evidence led.

Evidence on REmedy

4As noted in the earlier decision, the applicant was hired October 22, 2012 as a fulltime housekeeper for Aptco. She testified that she earned $12/hour and worked 40 hours per week (eight hours a day, Monday-Friday), except on the weeks when she was absent for illness or for medical appointments (three days in total). Her job was terminated on January 4, 2013. She produced pay slips which appear to cover the period she worked for Aptco, which shows she received $5,431.44 in gross pay (inclusive of regular, overtime and vacation pay).

5Immediately prior to applicant being hired by Aptco, she was at school to obtain a “housekeeping room attendant certificate,” which led to her job with Aptco. The applicant immigrated to Canada from St. Vincent in 2004. Although she had worked in St. Vincent, she did not have any Canadian work experience prior to being hired by Aptco in 2012. Her resume reflects volunteer positions she held with a community organization, a daycare and a co-op during the eight-year period preceding her employment with the respondent.

6The applicant testified that she was on social assistance during the period from 2004-2012. She wanted to obtain employment in Canada, but felt her efforts to find work were hampered by, among other things, the poor state of her teeth. After she had her teeth fixed and took the housekeeping course, she felt she was more employable.

7At the time she was fired, the applicant had only worked 11 weeks. When she enquired about obtaining employment insurance benefits, she discovered she was ineligible because she had not worked sufficient hours.

8The applicant did not keep records of her efforts to find work in the period between the termination from Aptco and the birth of her son. It is not entirely clear from the applicant’s testimony when she started looking for work, but she did testify that she sought the assistance of the Ayce Employment Centre starting in February 2013. At this point, she was five months pregnant, which she testified hampered her efforts to find work. In any event, she did not secure any work prior to the birth of her son on June 11, 2013.

9The applicant’s son was due on June 5, 2013. The applicant testified that she had intended to work until one or two weeks prior to the birth, and that in retrospect she was healthy enough to do so. The respondent challenged this evidence on cross-examination, suggesting that the applicant’s pregnancy would have made it very difficult for her to do some of the housekeeping tasks, such as lifting mattresses, but the applicant stated that with each of her pregnancies (the applicant had two other children), she only looked as if she was six-months pregnant at the end of the nine-month term. She stated that she continued to work until the end of her first pregnancy (in 2002) at the housekeeping job she held in St. Vincent.

10The respondent also suggested to the applicant that she would have continued to take days off during the period from January to May 2013 at the same rate as she had taken them off in the period during which she was actually employed (i.e., at a rate of approximately one day per month). The applicant denied this, saying she was healthy during this period.

11The applicant testified that it was her intention to take only a three-month maternity leave from Aptco, at which time she anticipated returning to work on a fulltime basis. Instead, she obtained a student loan to attend Everest College to take its Travel and Tourism course, which started on September 30, 2013 and concluded on May 26, 2014. During the period she was enrolled at Everest College she applied for several jobs in what might be loosely called the travel industry. She was hired on a part-time basis as a ticketing agent in June 2014. She worked that job until hired as a cleaner in a fulltime position in March 2015.

12With respect to the emotional impact of the respondent’s actions on her, the applicant testified that she went to see her doctor afterwards because she was distressed, but that her pregnancy prevented her doctor from prescribing any medication for her distress. The applicant also testified that she was very unhappy about having to return to social assistance.

decision and analysis

Authority to Hear Further Evidence

13The respondent asserted that I did not have the authority to hear further evidence from the applicant. Relying on a 1991 case from the Ontario General Division, Qit Fer & Titane Inc. v. Upper Lakes Shipping Ltd., 1991 CanLII 7297 (ON CTGD), 3 O.R. (3d) 165 (“Qit Fer”), the respondent submitted that the criteria for “re-opening” the hearing were not met.

14In Qit Fer, one of the defendants moved to re-open the trial after judgment on damages had been granted, but before it had been issued and entered. The court dismissed the motion on the basis that the test, “that the new evidence would probably have changed the result at trial,” was not met. Moreover, the moving party was not able to “satisfy the reasonable diligence test.”

15Counsel for the respondent conceded that Qit Fer is not directly applicable to the circumstances of this instant case, given that: (1) this is a proceeding before an administrative tribunal, rather than a civil proceeding; (2) the evidence was called at the invitation of the Tribunal rather than on the motion of the applicant; and (3) judgment had not been granted. Counsel acknowledged that the Tribunal’s Rules of Procedure give the Tribunal power to direct what evidence will be called and to question witnesses.

16The question about the extent to which the Tribunal may provide guidance to parties who are either not represented or, where represented, who have overlooked a key issue, is not settled. It is clear, however, that the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) gives the Tribunal considerable latitude with respect to fact-finding:

Disposition of applications

40. The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.

Interpretation of Part and rules

41. This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.

Tribunal rules

43. (1) The Tribunal may make rules governing the practice and procedure before it.

(3) Without limiting the generality of subsection (1), the Tribunal rules may,

(a) provide for and require the use of hearings or of practices and procedures that are provided for under the Statutory Powers Procedure Act or that are alternatives to traditional adjudicative or adversarial procedures;

(b) authorize the Tribunal to,

(i) define or narrow the issues required to dispose of an application and limit the evidence and submissions of the parties on such issues, and

(ii) determine the order in which the issues and evidence in a proceeding will be presented;

(c) authorize the Tribunal to conduct examinations in chief or cross-examinations of a witness;

(d) prescribe the stages of its processes at which preliminary, procedural or interlocutory matters will be determined;

(e) authorize the Tribunal to make or cause to be made such examinations of records and such other inquiries as it considers necessary in the circumstances;

(f) authorize the Tribunal to require a party to a proceeding or another person to,

(i) produce any document, information or thing and provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form,

(ii) provide a statement or oral or affidavit evidence, or

(iii) in the case of a party to the proceeding, adduce evidence or produce witnesses who are reasonably within the party’s control;

[Emphasis added.]

17The Common Rules of Procedure governing the Social Justice Tribunal of Ontario and the Human Rights Tribunal’s Rules of Procedure (in particular A3 of the former and 1.6 and 1.7 of the latter) reflect the legislative intention set out in these provisions. Specifically, Rule 1.6 provides:

The Tribunal will determine how a matter will be dealt with and may use procedures other than traditional adjudicative or adversarial procedures.

18The Rules cited above support the proposition that fairness in a given case may require an adjudicator to take an active role, including adopting procedures that are alternatives to those used in a more traditional and strictly adversarial approach.

19Counsel submitted, however, that in reopening the case on my own motion and providing direction to the applicant concerning what evidence would assist the Tribunal, that there was now a reasonable apprehension of bias. He was able to point to no specific case in support of this proposition.

20The test for reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394-5:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

21There is a strong presumption of judicial or quasi-judicial impartiality. To overcome the presumption, the party alleging a reasonable apprehension of bias must establish the presence of serious grounds: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at paras. 59, 76 and 77.

22As noted in the Decision on the merits, although the applicant was seeking a total of $65,000.00 in damages, the Tribunal did not have sufficient evidence before it to adjudicate this issue. I did attempt to question the applicant about her damages at the conclusion of her initial testimony, but counsel for the respondent objected. As there had been no notice to the respondent of this evidence at the time, either by way of a document production or in the applicant’s willsay, I did not pursue this line of questioning.

23In response to the direction set out in the Decision on the merits, the applicant, through her paralegal, provided documents and testimony in support of her claim for damages. This suggests that her failure to call this evidence during her case-in-chief was inadvertent rather than a deliberate strategy. In my view, having regard to the circumstances of this case, an informed person would not conclude that I would not decide the issue of remedy fairly.

24In determining whether to exercise my discretion to allow the applicant to call this evidence at this stage in the proceedings, I am mindful that the purpose of the Code is “to provide relief for the victims of discrimination.” See Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536, at para. 12.

25I also find guidance in recent comments made by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, a case dealing with summary judgment Rules under Ontario’s civil justice system. The comments of the court were made in the context of what Justice Karakatsanis, writing for a unanimous court, described as “a necessary culture shift” in the administration of the civil justice system. In a lengthy discussion of the values and goals that underlie this system, the court commented at para. 28:

The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found.

26In the circumstances of this case, and having found a breach of the Code, it would be neither fair nor just to determine an appropriate remedy in the absence of a full evidentiary record. The respondent’s motion to prevent the Tribunal from hearing further evidence from the applicant is, therefore, denied.

Remedy

27The applicant seeks monetary compensation pursuant to s. 45.2(1)1 of the Code for losses arising out of the infringements of the Code, including loss of earnings and interest ($15,000.00) and for injury to dignity, feelings and self-respect ($50,000.00). In assessing the amount of compensation, the guiding principle is to put an applicant in the position she would have been had no discrimination taken place: See Piazza v. Airport Taxicab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281 (C.A.); Ontario Human Rights Commision v. Impact Interior 1998 CanLII 17685 (ON CA); Systemgroup Consulting Inc. v.McConaghie, 2015 ONSC 2213 (Div. Ct.).

Loss of Earnings

28The applicant led evidence with respect to a period starting with her termination on January 4, 2013 and ending with her finally securing fulltime employment on March 5, 2015. It is not clear whether she is seeking compensation for this entire period, although the fact that she is only seeking $15,000.00 suggests otherwise, since that figure represents less than one-year’s wages.

29The applicant states that she intended to work for the respondent to within a week or two of her due date, and then take a three-month maternity leave. The applicant’s due date was June 5, 2013, which is a Wednesday. In the absence of any evidence to the contrary, I accept that she would have been able to work until the end of her pregnancy, and so a reasonable date for the start of the applicant’s leave would have been Monday, May 27, 2013. This represents an additional 20 weeks of work.

30The applicant would not have received any payment from the respondent for her maternity leave, and I have no information about whether she would have been eligible for maternity benefits through Employment Insurance had she been permitted to work the additional 20 weeks. In the absence of this information, I am unable to award the applicant compensation for the loss of her EI maternity leave benefits.

31The applicant testified that she intended to return to work for Aptco at the end of the three-month maternity leave, which would have been early September. However, instead of looking for work, she enrolled at Everest College to pursue her interest in the travel industry. The applicant did not testify that she attempted to look for work prior to starting with Everest and only pursued further education because she was unable to secure employment. Accordingly, the applicant is not eligible for compensation from the respondent for the time she spent at Everest College. Moreover, she is not eligible for compensation for the fact that the job she got in the field related to her studies paid less per week than the job with Aptco.

32Having determined the period of compensation (i.e., the twenty weeks following her termination from Aptco), the remaining issue to be determined is the amount of compensation. The respondent suggested that I should discount the wage to which the applicant is entitled by 5%, which it says likely represented the amount of time the applicant would have taken off, given that she had three medical-related absences (for which she was not paid) in the first 11 weeks of her employment. The applicant denied on cross-examination that she had any further illnesses, but even if that were so, she would have likely had pre-natal appointments that would have overlapped with the work day. Certainly, the applicant’s December pre-natal appointment was during the time when she was scheduled to work.

33The pay stubs submitted by the applicant suggest that she had money deducted for absences, but also money added for vacation pay and overtime payments. Rather than using an arbitrary percentage to inflate or discount the $480/week in wages the applicant was entitled to for fulltime attendance at work (40 hours multiplied by $12/hour), I have simply taken the applicant’s gross pay for the period ($5,431.44) and divided it by the 11 weeks she worked for a gross weekly pay of $493.77. Multiplied by the 20 weeks she was able to work (but unable to secure employment), the total comes to $9,857.34. This is her gross pay and is, of course, subject to statutory deductions and applicable taxes.

34The applicant is entitled to prejudgment interest on this amount in accordance with ss. 127 and 128 of the Courts of Justice Act, R.S.O. c. C. 43, (“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 is entitled to lost wages for the period January 4, 2013 to May 27, 2013, the midpoint of which is March 15, 2013. My review of the paystubs submitted, which appear to have been issued biweekly, indicates that payment up to this midpoint would have been due on March 22, 2013. Prejudgment interest shall run on the compensation for lost wages from this date. While entitlement to prejudgment interest runs from March 22, 2013, the rate itself is based on when the application was commenced, in this case, July 3, 2013. The applicable prejudgment interest rate under the CJA is 1.3%.

35The respondent will have 30 days to pay the monetary award, failing which postjudgment interest will be applied to the outstanding award. The expiry of the 30-day period falls in the second quarter of 2015. The interest rate in effect for this period is 2%.

Compensation for injury to dignity, feelings and self-respect

36In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal discussed at paras. 51-54 the factors to consider in making awards for injury to dignity, feelings and self-respect:

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious…

The Tribunal’s jurisprudence … 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…

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 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.

37In this Application, the information that I regard as salient is as follows:

• The applicant was upset and crying at the time of the termination;
• This was her first paid job following her immigration to Canada in 2004;
• The applicant had been on social assistance for eight years and testified that it distressed her to have to go back on social assistance following the loss of her job;
• She attended her doctor’s office to discuss how upset she was, but her doctor was unable to prescribe medication to assist her during this period because she was pregnant.

38The applicant did not embellish the trauma she experienced as a result of this setback. Her lack of Canadian work experience and her pregnancy made her somewhat more vulnerable to termination. However, after hearing her testimony, I was left with the impression that, while initially upset, within a relatively short period of time the applicant made efforts to minimize the setback that this job loss represented.

39I would note that the applicant submitted no cases in support of the requested $50,000.00 for this head of damages, which is outside the range of awards in similar cases.

40The respondent submitted three cases, all of which involved loss of employment due to pregnancy (in one case, the applicant was not hired; in the other two, the applicants’ employment was terminated), in which the applicants were each awarded $10,000.00. I would note that, although they are all pregnancy cases, there are factual findings that distinguish these cases from this Application. In all of the cases, the Tribunal found that there were other factors (namely problematic work behaviour) that also led to the respondents’ respective decisions not to hire/continue to employ the applicants. In this case, the applicant’s job performance was exemplary.

41In light of all the circumstances, it would be appropriate to award $15,000.00 for the intangible losses flowing from the respondent’s discriminatory act.

42The applicant is entitled to prejudgment interest of 1.3% on this amount from the time the cause of action arose, which is the date of her termination on January 4, 2013, to the date of this decision.

order

43The Tribunal orders the following:

1. The respondent shall pay the applicant $9,857.34 as monetary compensation for her wage loss less applicable statutory deductions and applicable taxes within 30 days of the date of this Decision.

2. The respondent shall pay pre-judgment interest on the $9,857.34 at the rate of 1.3% from March 22, 2013 until the date of the Decision.

3. The respondent shall pay the applicant $15,000 as monetary compensation for damages to her dignity, feelings and self-respect within 30 days of the date of this Decision.

4. The respondent shall pay pre-judgment interest on the $15,000 at the rate of 1.3% from January 4, 2013 until the date of the Decision.

5. Post-judgment interest shall be at the rate of 2.0% if the above amounts are not paid within 30 days of the date of the Decision.