Cenanovic v. 2332489 Ontario Inc., 2015 HRTO 833

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adnan Cenanovic

Applicant

-and-

2332489 Ontario Inc. operating as the Bourbon St. Grill and Weiwei Zhu

Respondents

DECISION ON REMEDY

Adjudicator: Jennifer Scott

Date: June 22, 2015

Citation: 2015 HRTO 833

Indexed as: Cenanovic v. 2332489 Ontario Inc.

APPEARANCES

Adnan Cenanovic, Applicant

Sanja Mavrak, Counsel

2332489 Ontario Inc. operating as Bourbon St. Grill and Weiwei Zhu, Respondents

C.P. Goldson, Counsel

Introduction

1The issue in this case is whether a job advertisement seeking a female server for the respondents’ fast food restaurant contravenes the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The hearing of this Application was divided into two stages. The first stage dealt with the issue of liability and the second stage addressed the issue of remedy.

3By Decision 2014 HRTO 1811, I held the respondents contravened sections 5 and 23(1) of the Code when they posted a job ad on Kijiji for a server that stated “female only”. Although I found the job ad contravened the Code, I held the applicant failed to establish that he was denied the opportunity to be considered for the job because of his gender. As a result of this finding, the only issue to be determined in this decision is the remedy that flows from the posting of the job ad.

ANALYSIS

4The Code’s remedial powers are set out in section 45.2 as follows:

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.

(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.

5The applicant testified that he wanted the server position. When he did not receive a response to his job application, he called the individual respondent who confirmed the job was for females only. The applicant testified that the individual respondent did not give his application a chance and spoke to him in a rude way. The applicant stated he felt rejected and put on the side lines. The applicant testified further that he was depressed, stressed, beaten to the bone and humiliated.

6The applicant requests $25,000.00 in monetary compensation. The applicant requests an order requiring the respondents to retain an expert in human rights law to assist them in revising policies and procedures and provide human rights training. He also requests an order requiring the respondents to post a copy of the Code beside the food permit in the restaurant.

7The respondents submit no remedy should be awarded because the applicant was not a bona fide job applicant. They state the applicant had no qualifications to work in a fast food restaurant, had never worked at a fast food restaurant, and applied for the job not because he wanted it, but because he wanted to find a lawyer with the intention of creating an “incident”. The respondents state it would be contrary to the Code and the principles behind the Code to award damages to the applicant when his job application was not bona fide.

8In my decision on liability, I found the respondents violated the applicant’s rights when they posted a job ad that stated females only should apply. I held that to communicate to individuals that they cannot apply for a job because of their gender constitutes adverse treatment on the basis of a prohibited ground of discrimination and contravenes sections 5 and 23(1) of the Code. The issue is what remedy flows from this infringement.

9In the hearing on remedy, the applicant testified about the impact of being rejected for the server position, both professionally and personally. The difficulty with this evidence is that it does not relate to the violation of the Code that I have found, namely that the job ad itself is discriminatory. In my decision on liability, I expressly found the applicant had failed to establish liability regarding his failure to be considered for the job. This finding was made for several reasons, the main one being that no one who responded to the Kijiji ad was hired by the respondents due to the fact that shortly before posting the ad, they filled the position.

10The applicant relies on Thompson v. Selective Personnel, 2009 HRTO 1224 in support of his request for monetary compensation. In that case, the Tribunal ordered $3,000.00 in compensation for a question asked on a job application form given to the job applicant during an interview. The question related to whether the applicant had ever been under psychiatric care. In my view, this case is not particularly helpful because seeing a job ad on Kijiji (that was likely seen by hundreds of other people) is very different from being asked a discriminatory question during a job interview process.

11Further, one might assume that applicants in a job interview are genuinely interested in the job for which they are applying. In this case, there is a real question as to whether the applicant wanted the server job. The applicant has never worked at a fast food restaurant nor has he ever worked in a food court. He has worked as a server and bartender in restaurants and has performed management duties in restaurants for many years. To this day, the applicant has still not worked in a fast food restaurant. If the applicant did not want the server job, seeing the job ad would have minimal impact on him.

12The timing of the applicant’s job application for the server position raises further questions about whether he really wanted the job. The applicant applied for the job on November 16, 2013. The very next day, the applicant conducted an internet search for human rights lawyers. The day after, the applicant met with legal counsel who was retained to file the Application. While the applicant has every right to seek legal advice concerning the job ad, the fact that he sought advice before determining the outcome of his application to work at the fast food restaurant, raises a question as to whether he really wanted the job.

13The real difficulty with respect to the applicant’s request for compensation is that he failed to give any evidence on the impact of seeing the job ad. The applicant’s evidence dealt mainly with the impact of being rejected for the job. Because the applicant did not give any evidence about the impact of the ad itself, I can only conclude its effect was minimal or non-existent.

14In the absence of sufficient evidence from the applicant concerning the impact of the job ad coupled with the fact that it is questionable as to whether the applicant was a bona fide job applicant, I am making no award for monetary compensation. The purpose of monetary compensation under section 45.2 of the Code is to remedy the loss arising from the infringement. In this case, there is no evidence that the applicant experienced a loss relating to the posting of the Kijiji ad alone.

15The applicant has requested systemic orders relating to human rights training, human rights policies and the posting of the Code at the restaurant. The applicant submits systemic orders are required because in the spring and summer of 2014, the respondents hired three more female employees. The applicant suggests the respondents continue to discriminate against prospective employees on the basis of prohibited grounds of discrimination.

16During the first stage of the hearing, the individual respondent testified that in June or July 2014, he hired a female server to replace the male server that was hired shortly before the Kijiji ad was posted. He testified further that the new female server subsequently left the restaurant and was replaced by another female server. The individual respondent testified that for the last hiring, he received six applications from three males and three females. He hired a female server with experience at McDonalds.

17The fact that the respondents replaced the male server hired shortly before the posting of the Kijiji ad with a female server, who in turn was replaced by another female server, is not enough to establish the respondents are hiring on the basis of gender. Without knowing the qualifications of the job applicants, it is impossible to make this connection. The mere fact that the respondents have hired two female servers does not provide the necessary foundation for making the systemic orders requested by the applicant.

18In any event, the systemic orders requested by the applicant have already been implemented by the respondents. The individual respondent testified that after this incident, he printed off the Code and met with staff. He also developed a policy on human rights principles which prohibits discrimination in hiring on the basis of prohibited grounds of discrimination. This policy was given to staff and posted at the restaurant. The policy is in English and Chinese, the individual respondent’s first language. Because the respondents have developed a policy, posted the policy and met with staff, there is no need for any further remedial orders.

19When this Application was filed, the respondents took steps to educate themselves and their staff on the Code and to develop a policy prohibiting discrimination in their hiring practices. In many ways, the human rights system worked as it should have. The discrimination was identified and corrected in very short order. The remedial provisions under the Code are discretionary. I am satisfied that the respondents will not place ads in the future that indicate only women should apply for specific positions. This would be contrary to the respondents’ human rights policy. The discrimination found, namely the job ad, has been corrected. There is no need for any further orders.