HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Wendy Tombs
Applicant
-and-
1303939 Ontario Ltd. o/a Holiday Inn Express
Respondent
DECISION
Adjudicator: Dawn J. Kershaw
Date: June 24, 2015
Citation: 2015 HRTO 842
Indexed as: Tombs v. 1303939 Ontario Ltd. o/a Holiday Inn Express
APPEARANCES
Wendy Tombs, Applicant Self-represented
1303939 Ontario Ltd., 1776603 Ontario Inc., David Hornstein and Karen Hambrock. Respondents Augusto P. Palombi, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The applicant began working full-time on November 5, 2010 in guest services and as a relief auditor in a hotel owned by one of the respondents.
3The applicant went off work on May 13, 2011 for emergency surgery. She was ready to return to work on January 15, 2012, but alleges that the manager instead of facilitating her return to work wanted her to sign a document in which she was asked to agree to come in for training after which the manager would determine her competency to work. The letter also set out the conditions that would apply if the applicant had medical leaves in the future. Because the applicant refused to sign the letter, she was not returned to work. The applicant alleges the letter did not give her a legitimate return to work plan. The respondent alleges the applicant resigned.
4The applicant alleges the respondent discriminated against her by failing to return her to her pre-disability position.
5The applicant attended the hearing and gave evidence, and the respondents attended the hearing with counsel and gave evidence. Both parties made submissions.
preliminary issue – removal of parties
6Prior to the hearing in this matter, Interim Decision, 2015 HRTO 50, dated January 14, 2015 ("the Interim Decision"), was issued with respect to the respondents' Request for an Order During Proceedings ("RFOP") requesting that the respondents, Karen Hambrock, David Hornstein and 1776603 Ontario Inc. ("1776603"), be removed as parties to the Application.
7In the Interim Decision the Tribunal declined to remove any of the parties at that stage of the proceeding, indicating that the decision whether or not to do so may require evidence.
8Rule 1.7(b) of the Tribunal's Rules of Procedure provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for "any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent". Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent's deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
9The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:
Applying these principles to the Tribunal's power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent's deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
Removal of 1776603
10With respect to the removal of 1776603, the Tribunal in the Interim Decision noted that the applicant did not appear to accept that her employer was 1303939 or that 1776603 should be removed as a party. As such, the Tribunal noted the applicant should have an opportunity to question at the hearing the representations the respondents made.
11At the hearing, the applicant testified she believed it was 1303939 who paid her, but she did not know how 1776603 factored in. She testified she believed that David Hornstein was her employer, and that he was the president of both numbered companies.
12Mr. Hornstein testified the agreement of purchase and sale for the unfinished hotel originally was entered into by him personally and then was transferred on closing to 1776603. At the time, Mr. Hornstein also had 1303939, a shelf company, to which 1776603 conveyed the hotel. The licence agreement to operate the hotel also was transferred from 1776603 to 1303939. When employees were hired for the hotel, they were hired by 1303939. He testified the applicant was never an employee of anyone but 1303939, and that 1303939 paid the applicant at all relevant times. The applicant produced two pay stubs, dated April 16 and April 30, 2011, both of which were from 1303939. The applicant's Record of Employment ("ROE"), dated April 18, 2011 also shows the applicant's employer as 1303939. In addition, Mr. Hornstein produced October 18, 2010 resolutions of 1303939's Board of Directors resolving that it will purchase the hotel from 1776603; and of 1776603's Board of Directors resolving to sell the hotel to 1303939. He also included the signed October 18, 2010 Asset Purchase Agreement showing the purchaser as 1303939 and the vendor as 1776603.
13Because it appears that it was 1303939 who paid the applicant, and in light of Mr. Hornstein's evidence and documentation showing that 1303939 was at all relevant times the applicant's employer, as well as the owner of the hotel and the licensee, it is appropriate to remove 1776603 as a party to this Application, and the title of proceedings is amended accordingly.
Removal of Karen Hambrock
14Ms. Hambrock was at all relevant times the general manager employed by 1303939 to manage the hotel. There is little doubt there is a corporate respondent who is alleged to be responsible for the alleged conduct, namely 1303939.
15The applicant, Mr. Hornstein and Ms. Hambrock agree that at all material times the applicant's dealings were with Ms. Hambrock, and that some of those were less than ideal.
16In my view, however, there was no evidence to support a claim that Ms. Hambrock at any time during the alleged conduct was acting outside the scope of her employment. Other than that she reacted negatively to the applicant when she called to say she wanted to return to work, there was nothing to support that the individual conduct of this personal respondent was a central issue or that the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual. As such it is appropriate that this respondent is removed as a party to the Application, and the title of proceedings is amended accordingly.
Removal of David Hornstein
17This respondent is the director and president of 1303939, according to the Asset Purchase Agreement by which 1303939 bought the hotel from 1776603, and according to the Board of Directors' resolutions authorizing the purchase of the hotel by 1303939 and authorizing Mr. Hornstein to sign the purchase and sale on behalf of 1303939.
18Fifty percent of the hotel in question in this Application is owned by Hornstein Construction, and Mr. Hornstein is the sole owner of that company.
19Taking into consideration the factors to consider when removing a respondent, there is a corporate respondent to respond to and remedy the alleged Code infringement. This also is not a case where the individual conduct of Mr. Hornstein is a central issue. For those reasons, Mr. Hornstein is removed as a respondent.
legal principles
20The relevant sections of the Code are as follows:
5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of [...] disability.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
evidence
21On November 5, 2010, the applicant began working in guest services at the respondents' hotel ("the hotel") where she was on the night shift. She was the only employee on night shift, and her duties included answering phones, making reservations and doing security checks. She also worked at times as a relief auditor.
22In April, 2011, she told her manager at the time she would be off work because she required emergency surgery, which she underwent on May 19, 2011. She went off work on May 13, 2011 after training her own replacement. The applicant provided a letter to her then manager about her illness, dated April 13, 2011, and also completed the hotel's Sick Form on the same date, in which she specified her illness and the fact she required immediate surgery and follow up treatments and that return to work would be determined at this time.
23Sometime in May or June, 2011 after her first surgery she visited the hotel, and her then manager told her they were looking forward to having her return to work and were glad she had come in.
24The applicant had no further conversations with anyone at the hotel until September 30, 2011, when she received an e-mail from another employee in which he asked how she was doing and when she would be able to come back to work. He asked her to contact the hotel.
25Karen Hambrock, the new general manager, testified this e-mail was sent at her request. She started working at the hotel in August, 2011. She was not aware of the applicant at first, but then asked the other employee about her because he knew her. She had him contact the applicant because she felt that because the applicant was off sick the other employee should contact her first because the applicant knew him but did not know her.
26When asked on cross-examination whether it was normal for such an e-mail to be sent by someone other than the general manager, Mr. Hornstein, testified that the employee who sent it was the applicant's direct supervisor, and he considered it appropriate because the employee and the applicant had prior communication and a personal relationship. Mr. Hornstein also testified that the applicant should have made direct contact with the general manager once she received this e-mail.
27The applicant testified that she took from the employee's e-mail that as of September 30, 2011, her job was still available to her.
28The applicant testified she sent a responding e-mail on September 30, 2011 in which she advised she was having a second surgery on October 18, 2011 and estimated her return to work at a minimum of 12 weeks after that. Despite stating in this e-mail that she would call the general manager on Monday or would drop by the hotel, she did not do so, testifying she thought it was sufficient that she had sent the responding e-mail.
29Although she testified she thought the e-mail was just from the employee and not from the employer, she said in her e-mail that she would contact the general manager rather than the employee because the general manager was his superior. She did not agree that the general manager would have been expecting to meet with her on the Monday, because in her view the e-mail was from the employee only and not from the employer. She did not know that the employee was acting on behalf of the employer.
30The applicant agreed her e-mail did not specify she would be returning to work in January. She also agreed that it was fair to say the employer would have concluded from her e-mail that she would contact the employer when she was ready to return to work.
31Between September 30, 2011 and the applicant's second surgery, she had no contact with anyone at the hotel until she attended the hotel on Sunday, January 9, 2012. She testified she did not think she should have to keep in touch with the hotel when she was off having surgery.
32By January, 2012 the applicant knew there was a new general manager, although she did not know it was Ms. Hambrock. On January 9, 2012, she left a note for Ms. Hambrock with another employee at the hotel that stated she was going to her doctor's on January 10, 2012 for paperwork to return to work. It further stated she expected to return to work on January 15, 2012 as a relief auditor and in guest services at 40 hours a week, with 2 audit and 3 desk shifts. She left the note for the general manager because she was a superior to the employee who had e-mailed her about her status.
33The applicant testified the employee with whom she left the note expressed surprise she was coming back to work because she heard the applicant had resigned. That employee asked the applicant if she intended to fight for her job.
34On cross-examination, the applicant testified she did not know if the general manager would be working on a Sunday when she left her note at the hotel. She stated she wanted to give a weeks' notice of her return to work. She agreed her note said she expected to return to work 40 hours a week, even though she had not yet seen the doctor or obtained a doctor's note, which she did on January 10, 2012. The return to work note that stated she could return to work on January 15, 2012 with restrictions of no heavy mopping and no lifting of more than 10 pounds. She agreed she never submitted the doctor's note to the employer, and stated it was because she never returned to work.
35Ms. Hambrock testified that on January 9, 2012, she received the note the applicant left for her at the front desk. She was concerned that the applicant said she was returning to work for 40 hours a week, and wanted to return the following Monday. She testified she was aware she had to reintegrate the applicant but did not expect such a short window.
36When Ms. Hambrock got the applicant's note, she e-mailed her and advised there were no openings and asked if they could meet to determine if they should put the applicant's application back into active status with the intent to re-hire her should a suitable opportunity come available. The e-mail stated:
I am in receipt of your note to me dated today. I'm very happy to hear that your health is improving and that you are looking to return to the work force.
I understand you were working at the front desk as a Guest Service Representative as well as performing duties as Night Auditor prior to your illness.
As we currently have no openings in any department I think it would be best if we could set up a time for us to meet. We can discuss your situation and determine if we should be putting your application back into active status with the intent to re-hire you should a suitable opportunity come available.
Please let me know when you are available. I look forward to meeting you.
37The applicant denied receiving this correspondence. Ms. Hambrock testified this e-mail was not returned to her. The applicant called her on January 12, 2012, which she assumed was the applicant's response to this e-mail. Ms. Hambrock testified that she did not know if perhaps there was a misunderstanding about her language in her e-mail, but that she was telling the applicant in that e-mail to come in and talk about her future at the hotel.
38The applicant testified when she called Ms. Hambrock on January 12, 2012, she explained who she was and that she would be able to return to work. She testified Ms. Hambrock told her there were no jobs available. She testified Ms. Hambrock said she did not even know the applicant and someone had just put her name on her desk. The applicant testified she sounded annoyed. The applicant explained to Ms. Hambrock that she had had emergency surgery but was returning to work. The applicant told Ms. Hambrock she left a note for her on January 8, 2012 and saw the doctor on January 10, 2012. She stated Ms. Hambrock pretty much dismissed her and said she had a business to run.
39Ms. Hambrock denied saying she did not know the applicant because she had e-mailed her three days before, in addition to which she was aware of her in October, 2011. She believed she was referring to the fact that someone had just put the applicant's January 9, 2012 note on her desk.
40Ms. Hambrock testified on cross-examination she likely did tell the applicant she had a business to run, but not in the way the applicant interpreted it. She testified on cross-examination it was not a surprise to her that the applicant called but it was a surprise to her that the applicant wanted to return to work in four days' time because Ms. Hambrock had to address job vacancies. She did not have an answer for the applicant when she called.
41The applicant testified that after Ms. Hambrock told her there were no jobs available, she told Ms. Hambrock that she would be looking into her right to return to work and that Ms. Hambrock's indication there was no job for her to return to was incorrect. She testified Ms. Hambrock responded that that was a stretch.
42Ms. Hambrock testified this conversation was an emotional one. Afterward she testified she contacted her two direct reports and told them the applicant wanted to come back to work in three days' time even though they were fully staffed. The three of them decided a meeting was required with the applicant to determine her capabilities as it seemed she had been off for quite a severe illness and they felt they needed time to put together the best plan for her.
43After this call, the applicant called the Labour Board and read the Code, and then called Ms. Hambrock again on January 16, 2012. Ms. Hambrock told the applicant she had e-mailed head office but had not received a response and there was no resolution. Ms. Hambrock did not specifically remember this conversation but did not deny having it.
44On January 18, 2012, the applicant wrote to Ms. Hambrock and outlined the conversation of January 12, 2012, including the fact that Ms. Hambrock told her there were no available positions and she was fully staffed. She also set out the relevant provisions of the Code and asked again to be reinstated to her former position.
45In response to this letter, Ms. Hambrock scheduled a January 27, 2012 meeting with the applicant, at which she and the employee who had sent the first e-mail to the applicant inquiring about her status were present. Ms. Hambrock testified the applicant did not want to be contacted by e-mail but by telephone, although she had no phone, which meant Ms. Hambrock had to leave a message for the applicant with someone else.
46She testified she called the applicant three times on January 20, 2012, but only left a message on the third try because she felt uncomfortable leaving a message on a phone she knew was not the applicant's. She left another message on January 23, 2012, and the applicant called her back on January 24, 2012, at which time Ms. Hambrock told her about the meeting to discuss her return to work. She testified the applicant did not want to talk on the phone but wanted meeting information couriered to her, which she did on January 24, 2012. There was some dispute with respect to whether Mr. Hornstein was going to be involved in the meeting and whether it was cancelled once, but nothing turns on the differences in this testimony.
47The applicant testified the January 27, 2012 meeting was short and tense, and she felt very uncomfortable. In her view, it was not a typical return to work meeting because there was no discussion of salary or schedule, and no request for any medical information. She was handed a letter she was expected to sign. She testified she felt trapped because there was no room for questions or negotiations. Ms. Hambrock testified the applicant told her she was setting her up and the applicant needed her advisors to look at the letter. She told the applicant to take it and consult with whomever she wanted and then bring it back once she had done so. She was of the view the meeting ended quite quickly when the applicant told her she was setting her up. The applicant denies Ms. Hambrock gave her the opportunity to take the letter with her and consult.
48Ms. Hambrock testified she wanted to go through the letter with the applicant paragraph by paragraph to generate a discussion, but the applicant did not ask anything and simply told her she was not signing it.
49The letter stated as follows:
The purpose of this meeting is to determine Wendy's readiness to return to work and develop a plan to facilitate her re-integration into the workforce.
Because of the extended nature of Wendy's absence a retraining program will be developed to ensure she has the training and tools required to perform her responsibilities to the best of her ability. Training shifts are 4 hours in length and will concentrate on Front Desk, Night Audit and Breakfast. Management will determine at what point Wendy is competent enough to handle the workload independently.
Due to the nature of the business a typical work week cannot be determined. Adjustments to schedules can and do happen frequently as business levels increase/decrease. These adjustments can include filling in and/or taking shifts in other departments within the property as well as hours of work being shortened, shifts added or shifts cancelled. All employees are required to have a reliable method of contact in order to communicate any schedule changes in a timely manner.
All staff work cooperatively to ensure that the available hours are shared and that all employees are considered when work schedules are created. Wendy is expected to model this same behaviour.
We will require 2 letters from her physician. The first is a letter or certificate certifying that Wendy was incapable of working due to illness for a specified period of time that coincides with her absence from work. Additionally we will require a letter giving her a clean bill of health as it relates to her ability to perform her duties prior to her return to work. Upon receipt of those letters a training plan will be developed.
Going forward any medical related absences must be accompanied by a doctor's note. Absences of an extended nature requiring a leave of absence will be subject to a finite period of time and review as set out in the Canadian Labour Code. Regular communication during this absence from work is the responsibility of the employee.
50The applicant testified that to her it did not seem like a return to work letter. She testified she was already an employee and was not there looking for a job. She felt the requirement of having someone determine her competency was demeaning. She agreed that it was always within a general manager's discretion to determine competency, but she objected to it because she was not a new employee and had already gone through a probationary period. She also objected to Ms. Hambrock determining her competency because of her hostility toward the applicant prior to the January 27, 2012 meeting. In the applicant's view, the hostility dated back to January 12, 2012 when the applicant called Ms. Hambrock who told her there was no job for her.
51Ms. Hambrock admitted on cross-examination that she and the applicant had communication problems prior to January 27, 2012 but by that date, it was clear the applicant wanted written communication from her, and she wanted the applicant back to work. Ms. Hambrock testified she put the letter together in good faith to get the applicant back to work at her own pace.
52Mr. Hornstein testified he and Ms. Hambrock discussed the retraining requirement, but the letter was drafted by Ms. Hambrock to whom he left it to come up with the wording. He testified he was not sure if he saw the letter before it was given to the applicant.
53Ms. Hambrock testified the competency issue was included in the letter because she wanted to ensure the applicant was competent to work alone. She also testified she would not have trained the applicant herself. It would have been done by those at the front desk.
54The applicant testified that the training requirement was not explained to her as a reintegration to her job. She and Ms. Hambrock had no discussion about the requirement because it seemed to the applicant that it was a "take it or leave it". She did not take issue with the training itself, but took exception to it because she saw it as a prerequisite to getting her job back, as opposed to her being returned to work. The applicant testified she understood she would be trained four hours in each department, including night audit, breakfast and front desk. Before going off work, she mainly did the first two, but did fill in for breakfast if someone was ill. The applicant agreed the duties set out in the letter did not differ from the duties she was doing before she went off work.
55Ms. Hambrock testified retraining was necessary because there were always changes with hotel software, as well as procedural changes with respect to cash deposits, credit cards and reservations, and that the franchisor requires all employees to take online modules. Ms. Hambrock testified when she came to work at the hotel, things were falling through the cracks given the speed at which the employees had been trained to use the reservation system. As a result, she ensured that she trained them.
56In addition, while the applicant was off the front desk employees had taken over testing the pool, and accessibility training had become more important. The franchisor also required employees to do a hospitality course. Ms. Hambrock on cross-examination admitted she did not know the applicant had been doing pool testing before she went off work.
57Ms. Hambrock further testified the purpose of the four hour training sessions was because she did not know if the applicant could handle 8 hours and she wanted to ensure it was set up so the applicant was successful. She testified if the applicant had not been comfortable at four hours she would have kept going with the training until the applicant was comfortable.
58The applicant agreed that as of January 8, 2012, she did not know about any changes that may have taken place at the hotel. She agreed that while employed there she had seen changes to hotel membership, but usually no changes to the reservation system because it was a new hotel. She agreed she worked alone on the night shift, but stated there were cheat sheets she could use to assist her.
59Mr. Hornstein testified that being off work in the hotel business is significant because franchisors constantly are changing how employees are supposed to deal with guests, and there is ongoing health and safety training. He requires general managers to ensure that prior to an employee returning to work, he or she goes through retraining so they are brought up to speed with any changes. In this particular case, he told Ms. Hambrock to ensure the applicant knew of that requirement as well.
60In addition to objecting to the training requirement, the applicant objected to the term in the letter that her schedule could be altered, including shifts being cancelled or shortened, because this was different than it was before she went off work. She testified they did not alter her schedule; she sometimes worked fewer than 40 hours a week but always had an amount of work consistent with full-time hours; and was given extra hours at times.
61The applicant also took exception to the inclusion of the reference to any future medical related absences because it seemed designed so that if she got ill again, they could let her go, which she found discriminatory and demeaning.
62Mr. Hornstein testified that they wanted the applicant to sign this letter to acknowledge the retraining, that it would be for four hour periods, and to establish that she or anyone else who was off work in the future would have to provide a doctor's note. When asked why she had to sign this upon her return, but not when she was first hired, Mr. Hornstein testified she was returning to work from a catastrophic illness and it established what she would have to provide in the future if she had a medical event. She was asked to sign it even though she had not signed anything similar when she was first hired because they were trying to reintegrate her into the workplace, which is different from when someone first is hired.
63Mr. Hornstein further testified that because of her absence she had not been performing her job functions and because she had a catastrophic illness which could very well affect what she could and could not do on the job, if they needed to accommodate they needed a doctor's note in order to be able to do so.
64On cross-examination, Mr. Hornstein stated the letter hit the important points, which included her readiness to return to work; reintegration; retraining; and competency to handle the workload. He further stated he believes Ms. Hambrock pointed out in the letter that when the applicant was off work they could not leave the hotel without a night auditor and that when the applicant called out of the blue to say she expected to come back and get 40 hours a week with the exact hours she had had, it was not necessarily feasible right off the bat.
65On cross-examination, Mr. Hornstein said he was not aware at first of the applicant being on a medical leave because this is a general manager issue. He is not involved in daily operations until a problem arises, which in this case was the applicant's expectation that she could return to work out of the blue to a 40 hour per week position. He was made aware of this by Ms. Hambrock who contacted him about the applicant's January 9, 2012 note.
66When asked by the Tribunal what he meant by a problem, he stated it would not be expected that an employee would do what the applicant did which was come and leave a note at the hotel desk and expect she will be immediately placed in the position she was in before even though they had no contact with her and had no information with respect to her required accommodations or restrictions. In his view, all communication with her had demonstrated they intended to hire her back.
67He denied Ms. Hambrock subsequently spoke to him about her January 12, 2012 conversation with the applicant, but believes Ms. Hambrock showed him the applicant's January 18, 2012 letter. He denied knowing from the January 18, 2012 correspondence that there was tension between the applicant and Ms. Hambrock. He testified he was aware of tension on the part of the applicant; knew the applicant had an issue, whether legitimate or not; and that the goal was to get her trained and back into the workplace.
68Mr. Hornstein agreed on cross-examination that no one requested a doctor's note from the applicant prior to the January 27, 2012 meeting. He expected the applicant would provide it as soon as she had it, or bring it with her to the meeting. He further stated that frankly in October, 2011, she should have introduced herself to Ms. Hambrock, brought a medical note with her and talked to Ms. Hambrock about her medical condition. He testified he finds it disingenuous that the applicant now alleges they did not accommodate her. He disagreed with the applicant that her January 9, 2012 correspondence asking to return to work to 8 hour days was an indication she was capable of that because she is not a doctor.
69When the applicant refused to sign the letter, Ms. Hambrock left the room. The other employee apologized and told the applicant that Mr. Hornstein just wanted a clean slate. The applicant responded he could not just have a clean slate. The other employee walked the applicant to the door and she left.
70The applicant agreed no one in the meeting said she was fired. However, in addition to the items to which she objected, she noted there also were no job specifics or details of schedule provided to her in the meeting.
71The applicant testified she wanted to return to her job. While she could not accept the terms in the letter, she did not resign. She wished Ms. Hambrock would continue to negotiate with her, but she heard nothing. She had no further discussions with her after the meeting. She testified that a person could not know what it was like for her to want to return to work and yet feel she had to turn it down. Because of the tenor of the meeting and the terms included in the letter, she felt she could not sign. She felt it was not a genuine offer of employment.
72Sometime after the January 27, 2012 meeting, the applicant sent a letter to Ms. Hambrock in which she declined what Ms. Hambrock termed her integration back into the workplace. She declined what she termed Ms. Hambrock's personal determination of her competency and performance that was offered as an alternative to her rightful return to her pre-disability position. She asked Ms. Hambrock to confirm her present status by "Employment Standards, Unemployment Insurance and Ontario Works Program", and stated she did not have a follow up ROE indicating her present employment status. She went on to say she did not resign her position or her right to return to work under employment law, and provided an address for any further communication. Ms. Hambrock testified she took the applicant's letter as her resignation and did not follow up with her because she requested an ROE.
73On February 10, 2012, the hotel issued the applicant an ROE for the period from April 25 to May 13, 2011, which covered a period of time between when the applicant thought she would go off work for surgery, and when she actually did go off. The reason stated for issuing this ROE was that the applicant quit. On April 18, 2011, the hotel had issued an earlier ROE that stated the applicant went off work for illness and that her final pay period was April 16, 2011.
74The applicant states she was confused by the fact that the February 10, 2012 ROE said she had quit because she went off work sick. She did not agree that the reason this ROE said "quit" was because she would not do the training they required of her. Mr. Hornstein testified that hiring and retaining employees in the hotel business is difficult and when one has a competent employee he or she wishes to hold onto them.
75In February, 2012, an employee of the hotel brought to her attention a Kijiji ad seeking a part-time relief auditor at the hotel. When she called the hotel around that time to get a copy of her tax return, she mentioned the Kijiji ad to the other employee who had been present at the meeting. He responded that she would have to talk to Ms. Hambrock about that. She did not do so because she did not want to deal with her anymore.
findings and analysis
76The Code prohibits discrimination in employment on the basis of disability. The onus is on the applicant to establish on a balance of probabilities that what she experienced in her workplace is linked to her disability. Once the applicant has established a prima facie case of discrimination, the onus shifts to the respondent to provide a non-discriminatory explanation for the treatment the applicant received. See: Pieters v. Peel Law Association, 2013 ONCA 396 ("Pieters").
77The Court of Appeal in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 ("Tranchemontagne") found that in most human rights cases, discrimination will be established where the claimant is able to prove a "distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others) See also: Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536; Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143). If the claimant is able to prove these elements and the respondent is unable to prove a defence or statutory exemption, the Tribunal will find a breach of the Code and order an appropriate remedy.
78For the reasons that follow, I find the respondent discriminated against the applicant when she attempted to return to work after her medical leave of absence.
79In reaching my finding on liability, for the most part I have determined it is unnecessary to make findings of credibility in order to determine the issues before me. When I have had to assess credibility, I have been guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 ("Faryna"), which is often quoted by this Tribunal. The Court held:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.
80It is undisputed that the applicant went off work in May, 2011 and that her employer knew she was off on a medical leave of absence as set out in her April 13, 2011 Sick Form. It also was undisputed that the applicant had a disability as defined in the Code.
81While the applicant was off work, her general manager left, and Ms. Hambrock assumed the general manager's position in August, 2011.
82After visiting the hotel once in May or June, 2011 while her former general manager was still employed there, the applicant's first contact with anyone from the hotel was on September 30, 2011 when she received an e-mail from another employee asking how she was and when she would be able to return to work.
83The parties do not agree whether this e-mail was sent on behalf of the hotel or whether it was simply this employee reaching out to the applicant. I need not decide this factual issue as in either scenario, it set in motion the communication between the applicant and the hotel with respect to the applicant's return to work.
84Both Ms. Hambrock and Mr. Hornstein point to this e-mail as evidence they always intended to have the applicant return to work and therefore did not discriminate against her. I disagree because of the events that followed, and my reasons are set out below.
85The respondents made much of the fact that the applicant in response to the September 30, 2011 e-mail asking her to contact the hotel said she would call the hotel or drop by, which she did not. However, she testified that in her view even though she did not do so, she had provided the hotel with the information requested. I agree with the applicant because in her responding e-mail she told the respondents she was having another surgery, and she estimated for them her return to work date.
86The next contact did not occur until January 8, 2012 when the applicant left a note for Ms. Hambrock telling her she was seeing her doctor on January 10, 2012 to get return to work paperwork, and expected to return to work on January 15, 2012 to her former full-time position.
87In response to the applicant's note, Ms. Hambrock testified she sent the applicant an e-mail. Although the applicant denies receiving it, in my view it reveals the respondent's attitude toward the applicant's return to work. It also belies what the respondent's witnesses say the apparent intention of the September 30, 2011 e-mail was. This e-mail states that Ms. Hambrock and the applicant should meet to determine if they should put the applicant's application back into active status with the intent to re-hire her should a suitable opportunity come available [emphasis added].
88While Ms. Hambrock testified she understood her obligation to reintegrate the applicant and the only surprise to her was that the applicant wanted to return to work with so little notice, her January 9, 2012 e-mail belies that. She does not raise the issue of perhaps establishing a later return to work date. Instead, she tells the applicant they should meet to establish if she will be put back into active status and reintegrated if a position opens up. As such, there was no certainty with respect to the applicant's reintegration to her former position, and the respondent's focus was on whether the applicant would be rehired as opposed to being placed back into the position she held prior to her leave.
89Ms. Hambrock testified that perhaps the applicant misunderstood her language in the e-mail. In my view, the e-mail did not leave much room for misunderstanding. It very clearly told the applicant that she should come and meet with Ms. Hambrock to determine if she would be placed back on active status and re-hired if a suitable opportunity arose [emphasis added].
90Even if the applicant did not receive this e-mail, I accept the applicant's evidence that she received the same or similar information in the telephone call that was communicated in the e-mail. The applicant testified Ms. Hambrock sounded annoyed and said that someone had just put her name on her table. The applicant told Ms. Hambrock she was returning to her job, at which point Ms. Hambrock told the applicant there were no jobs available. While the applicant's testimony that Ms. Hambrock said she had no jobs available is slightly different than the information in the e-mail, Ms. Hambrock did not deny writing the e-mail, which clearly sets out the hotel has no openings in any department, and that it is best they meet to determine if they should put the applicant's application back into active status with the intent to re-hire her should a suitable opportunity arise. Because it is in writing and Ms. Hambrock does not deny writing the e-mail, I rely on it as the most reliable evidence with respect to the respondent's position on the applicant's return to work at that point. It is of little significance whether the applicant received that message by e-mail or similar information in the telephone conversation. The message from Ms. Hambrock was the same – there was no job for the applicant. Further, Ms. Hambrock's e-mail does not tell the applicant she will look into returning her to her former position or find something else for her. It states she will determine if she will put the applicant's application back into active status and re-hire her should a suitable opportunity arise. The applicant was not asking to be re-hired; she was asking to be returned to her former job.
91After the phone call the applicant investigated her rights under the Code and communicated her understanding of those rights to Ms. Hambrock.
92Ms. Hambrock then scheduled the January 27, 2012 meeting with the applicant in which she gave her the letter that contained several terms to which the applicant objected, and which terms in my view constitute discrimination and led to the applicant's not being returned to work.
93I have determined for the reasons that follow that the January 27, 2012 letter is discriminatory, or more specifically as stated in Tranchemontagne, above, it constitutes a "distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others)".
94In my view, the terms of the January 27, 2012 letter are discriminatory specifically because it imposed more than one burden on the applicant that created a disadvantage for her and was related to her disability.
95First, Mr. Hornstein testified the applicant had not had to sign any such document upon being hired, which was only 14 months prior to when she wanted to return to work. Second, although Mr. Hornstein attempted to paint this as a requirement for anyone who had been off work, the letter very specifically referred to what was required of the applicant. In addition, the last paragraph of the letter tells her that "[a]bsences of an extended nature requiring a leave of absence will be subject to a finite period of time and review as set out in the Canada Labour Code." The letter in advance tries to limit the amount of time the applicant will be allowed to be off work. I agree with the applicant that this was designed to address what would happen if the applicant's illness recurred.
96Another requirement set out in the letter is the retraining. I accept that after being off work for eight months, the applicant may have required some retraining. The applicant also accepted this. The difficulty is that in light of the communication the applicant had with Ms. Hambrock to that point, including that she had advised her that she would determine if the applicant would be placed back on the active list and re-hired if a suitable opportunity arose, the requirement of training with competency to be determined by management imposed a disadvantage on her. Ms. Hambrock and Mr. Hornstein attempted to paint this as a normal requirement of all employees. However, if competency can be determined by the employer at any point in one's employment, it does not explain why this was included specifically in the letter given to the applicant upon her return to work. I agree with the applicant that it seems designed to set it up so she can be terminated by management almost at will. I also accept the applicant's testimony that Ms. Hambrock did not provide to her in the January 27, 2012 meeting any explanation of why retraining was required of her.
97I also agree with the applicant that the inclusion of a term referring to competency was discriminatory given that the applicant already had been doing the job satisfactorily before she went off work. I do not accept the evidence of Mr. Hornstein that by including this term the respondents' intention was to ensure that the applicant could do the job without any restrictions (that they would accommodate), because another paragraph in the letter states that the applicant has to have a "clean bill of health" from her doctor as it relates to her ability to perform her work duties. This paragraph belies Mr. Hornstein's evidence that they needed information from the applicant so they could accommodate her. A "clean bill of health" does not appear to allow for any work restrictions.
98My findings are also supported by Mr. Hornstein's admission that at no time before the January 27, 2012 meeting had anyone from the respondents asked the applicant for medical information. Then when the respondents finally did ask for it, it did not request information about any possible restrictions, but asked solely for confirmation that she had none. Ordinarily, a request for medical documentation would be for the purpose, as Mr. Hornstein stated, of providing necessary accommodations for an employee. However, requiring the applicant in this case to provide a letter that said she had a "clean bill of health" does not demonstrate a desire to accommodate the applicant but rather a desire to ensure the applicant has no limitations.
99Mr. Hornstein's testimony also demonstrated discriminatory behaviour from the respondent. His testimony made it apparent that he put all the responsibility on the applicant for communicating with respect to her health and return to work. This also was repeated in the January 27, 2012 letter.
100Mr. Hornstein also testified the applicant should have brought a medical note with her in October, 2011 and talked to Ms. Hambrock about her medical condition. First, there was no requirement in this case that the applicant talk to her employer about her medical condition, although she would have been required to discuss her restrictions. In this case, however, the applicant told her employer exactly why she was going off work. She also told the employer about her second surgery and her estimated return to work date, in response to which, she received no response from the respondents until the negative reaction she received when she advised she was ready to return to work.
101Mr. Hornstein also testified he expected the applicant would provide a medical report as soon as she had it, or bring it with her to the January 27, 2012 meeting, and while the applicant should provide medical information, the respondents did not ask her for any despite her telling them she was seeing the doctor on January 10, 2012.
102Mr. Hornstein during his testimony demonstrated considerable frustration with the applicant's position. He referred to the applicant's position in this Application as "disingenuous", and to her request to return to work as a "problem", which is not demonstrative of his voiced intention to try and accommodate the applicant's return to work.
103The overall course of conduct by the respondent resulted in the applicant not returning to work following an extended leave of absence for disability-related reasons. In effect, the imposition of the terms in the letter on the applicant brought her employment to an end, and I find that the respondent discriminated against the applicant. While the applicant admitted no one had terminated her employment, Ms. Hambrock's statement that in her view the applicant had resigned her employment because she would not sign the letter is not credible. After the meeting at which the applicant did not sign the letter, she sent a letter to Ms. Hambrock in which she made it clear she did not resign her position or her right to return to work under employment law.
remedy
104The Tribunal's remedial powers are set out in s. 45.2 of the Code, which provides:
(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:
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.
(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.
105In the Application, the applicant requested a financial remedy in the total amount of $98,000.00, which included two years' wages, one year of pain and suffering and $8000 of rent paid by the applicant to keep her apartment while she underwent treatment out of town, in the expectation she would be re-employed by the respondents when ready to return to work. The applicant did not seek non-monetary remedies.
Monetary Compensation
106It is well established that the focus of the remedial power under the Code is restorative rather than punitive. The principle under which monetary compensation is ordered is to attempt to restore the applicant to the position she would have been in had the discrimination not occurred. In determining an appropriate and just remedy, the focus is on the applicant's experience, not on the party who infringed his or her rights. See, for e.g., Hughes v. 1308581 Ontario, 2009 HRTO 341.
107As stated in Piazza v. Airport Taxicab (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281 (C.A.), the purpose of compensation is to put complainants in the position they 'would have been in had the discriminatory [conduct] not occurred.
Injury to dignity, feelings and self-respect
108The Divisional Court has stated that an award 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 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 CanLII 39605 (ON SCDC), 91 OR (3d) 649 at para. 152.
109The Tribunal's jurisprudence has primarily applied two criteria in evaluating 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 Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at para. 52.
110Because the respondent discriminated against the applicant when she tried to return to work, she had no employment for six months during which she received Employment Insurance ("EI"). Since then, she has been employed part-time.
111The applicant testified she could not believe she did not have a job. She had come through a very difficult time with her diagnosis and unpleasant surgeries, and getting her health back so she could return to work kept her going. It was a shock to find out she did not have work. She faced eviction because she had no money to pay her rent. She found the events alarming and disturbing. She felt how she was treated by the respondents was disrespectful.
112The applicant enjoyed her work and expected she would work there for a long time. Not being able to return to work was stressful, and in her view this was compounded by the fact that she felt she was being terminated but without paperwork that confirmed that. It seemed to the applicant that the respondents took advantage of her health situation to dismiss her.
113While the applicant considered leaving the town, it is not feasible for her to do so because her 84 year old mother lives there and is ill and she assists her. Losing her employment was a very unexpected and a turning point in her life. She noted she would not treat someone the way the respondents treated her. At the time of the hearing, she was about to move for the fifth time since she lost her employment. Each move was for the purpose of reducing her rent.
114In reaching my decision on remedy for injury to dignity, feelings and self-respect, I have considered the applicant's uncontroverted evidence about the impact on her of her job no longer being available to her. I have also considered her evidence that although she considered leaving the town, she has family obligations that make it very difficult to do so. The impact on her of losing her employment has been particularly difficult for her.
115In addition, I have considered that the respondent did not in good faith make the applicant's employment available to her when she was ready to return to work. The applicant enjoyed her work, wanted to return to work and had seen her return to work as a bright spot while she was off work coping with her illness. She then was met with the respondent's resistance to her doing exactly that, which was emotionally very difficult for the applicant, particularly in her vulnerable situation.
116The applicant in effect requested an award of $30,000 for injury to dignity, feelings and self-respect (she characterized it as one year's pay). The applicant was shocked when she found her job was not available to her, and it had a profound effect on her. The applicant however did not provide any medical documentation to substantiate any health issues resulting from the situation.
117I have considered the Tribunal's statement in Vallee v. Fairweather, 2012 HRTO 325 as follows:
Recent Tribunal decisions that have considered disability-related discrimination in the context of the termination of an applicant's employment have generally made awards ranging from $10,000 to $45,000. See, for example, Lane v. ADGA Group Consultants Inc., 2007 HRTO 34 ($45,000); Krieger v. Toronto Police Services Board, 2010 HRTO 1361 ($35,000); Lopetegui v. 680247 Ontario, 2009 HRTO 1248 ($20,000); Mirashrafi v. Circuit Centre, 2010 HRTO 512 ($15,000) ("Mirashrafi"); Vetricek v. 642518 Canada, 2010 HRTO 757 ($15,000) ("Vetricek"); Duliunas v. York-Med Systems, 2010 HRTO 1404 ($15,000); LeBlanc v. Syncreon, 2010 HRTO 2336 ($10,000); and Coscina v. Halton School of Equitation, 2011 HRTO 1949 ($10,000).
In the cases where awards less than $10,000 have been made, the Tribunal found the applicant had work performance issues that contributed to the termination, only worked for the respondent for a short period of time, and/or failed to present evidence of the impact of discriminatory termination on him or her. See, for example, Quattroci v. Boz Electric Supply, 2009 HRTO 1082 ("Quattroci"); Garcia v. Tri-Krete, 2009 HRTO 2181; and Buckingham-Vanderlei v. Walker, 2010 HRTO 1338.
118In this case, I have found no work performance issues. While it is true that the applicant had worked for the respondents for only a short period of time, there was every indication that before the new general manager began her employment there that the applicant would return to work when she was ready. In addition, the applicant gave convincing and uncontroverted evidence about the great impact of these events on her.
119Considering the cases and the applicant's evidence, I find this to be somewhat analogous to the Mirashrafia case but without any performance issues. As such, I find it appropriate in this case to award the applicant $20,000.00 for injury to dignity, feelings and self-respect.
Lost Wages
120In Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 CHRR D/6347 (Ont. C.A.) the Ontario Court of Appeal stated:
The purpose of compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred.
121In addition, the applicant has a duty to mitigate her losses by making reasonable efforts to obtain suitable employment. See Adams v. Knoll, 2010 HRTO 376 ("Adams") at para. 16. The applicant is entitled to be compensated only for those losses that could not have been avoided, and the respondent has the onus of proving the applicant's failure to mitigate. See Heintz v. Christian Horizons, 2008 HRTO 22.
122In this case the loss arising out of the infringement potentially would include the full-time wages the applicant would have earned commencing on January 27, 2012, less any income and non-repayable benefits she received. There are numerous human rights cases awarding full compensation for the entire period of unemployment or underemployment resulting from a discriminatory termination.
123I have chosen January 27, 2012 as the date upon which the applicant's wage loss began because this is when the meeting took place between Ms. Hambrock and the applicant, which was just about three months before the applicant turned 58 years old. I agree with the respondents that they are entitled to some lead time to arrange the applicant's return to work, which they received on January 9, 2012. It is not unreasonable that the respondents would have required the two and a half weeks between January 9 and 27, 2012 to organize the return to work.
124The applicant while employed with the respondents was earning $11.25 per hour in guest services and $11.75 per hour as night auditor. She mostly worked 40 hours per week, with some overtime. While she did not testify specifically how many hours a week she worked in each of the positions, her January 9, 2012 letter states she expected to return to work to 2 audit and 3 desk shifts, which was her usual job prior to her medical leave.
125The applicant provided her 2011 to 2014 tax returns. Before she went off on her sick leave in 2011, the applicant made $8542.37 in employment income and $5333.00 in EI; in 2012, she made $9694.73 in employment income and $6561.00 in EI; in 2013, she made $19,872.75 in employment income and $1254.00 in EI; and in 2014, she made $10,487.17 and $4827.00 EI.
126To calculate the applicant's wage loss, I have used $11.25 per hour for three shifts a week totalling 24 hours a week or $270.00 per week and $11.75 per hour for two shifts a week totalling 16 hours a week or $188 per week. The applicant would have made $458.00 per week or $22,900.00 per year based on 50 working weeks in a year.
127There was no evidence that the applicant failed to mitigate her wage loss. In fact, her uncontroverted evidence was that she not only searched for work beginning immediately after finding out she was not returning to the hotel, but she found a job at which she worked from about May, 2012 through November, 2012, while simultaneously working part-time at another job that continued when the other ended in November, 2012. She also found another part-time job to add to that job in August, 2013 where she remained until December, 2013. The applicant said she left those jobs because in January, 2014 she got a job as a cashier. She works only between 15 and 20 hours per week, and sometimes as many as 25 hours per week, which is all that is available.
128The applicant pointed out that she lives in a small town where there is little employment. When she got the job with the respondents, she was one of about 350 people who applied for the fewer than 10 jobs available.
129While the applicant has managed to find some part-time employment, she has at times been unemployed and continues to be under-employed. The applicant is now 61 years of age, which well may make it more difficult for her to find employment that will replace the full-time employment she had in her small town. Her circumstances make it difficult, if not impossible, to leave that town. As such, given these circumstances, I find it appropriate to order wage loss from January 27, 2012 to the end of 2013. I have chosen the end of 2013 based on the fact that the applicant's evidence indicated she left the jobs she had in 2013 in order to take the job as a cashier at which she usually works only between 15 and 20 hours. Her tax returns show that in 2013 she made substantially more money than she did in 2012. As such, her decision to leave the jobs she had in 2013 appears to have impacted her negatively financially, a situation for which the respondents should not be responsible. Her wage loss for 2012 and 2013, based on an annual income of $22,500.00 is calculated as follows:
Year Wage loss less employment income
2012 $22,900.00 - 9694.73 = $13,205.27 – less $1800 (representing the four weeks from January 1 to 27, 2012) = $11,405.27
2013 $22,900.00 - $19872.75 = $3027.25
TOTAL $11,405.27 + $3027.25 = $14,432.52
130The 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 from January 27, 2012 to December 31, 2013. The midpoint of this is January 13, 2013. My review of the paystubs submitted shows they were issued biweekly, and that payment up to this midpoint would have been due on January 25, 2013. Prejudgment interest shall run on the compensation for lost wages from this date. While entitlement to prejudgment interest runs from January 25, 2013, the rate itself is based on when the application was commenced, in this case, December 12, 2012. The applicable prejudgment interest rate under the CJA is 1.3%.
Non-Monetary Remedies
131While the applicant did not request non-monetary remedies, the Tribunal's remedial powers are broad, and pursuant to s. 45.2.1(3) the Tribunal has the power to direct any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code.
132In this case, the Human Rights Policy for the hotel contained in the respondent's disclosure consisted of one page and the only reference to human rights is as follows:
[We] support the protection of human rights, particularly those of our employees, the parties we do business with and the community where we operate.
133The respondent, 1303939, appears to have no policy related to the type of discrimination suffered by the applicant, or any type of discrimination (other than a statement that the hotel respects its employees' rights to voluntary freedom of association), and no complaint process to deal with discrimination. The respondent gave no other evidence with respect to their human rights policies or training.
134In the absence of any adequate policy with respect to discrimination and any complaint procedure, I find it appropriate that all employees and managers of 1303939 take the Ontario Human Rights Commission's on-line training "Human Rights 101" (available at www.ohrc.on.ca/hr101) within 60 days of this Decision. 1303939 "will provide the applicant with written confirmation from the managers and employees that they have done so upon completion of the course, and the respondent will provide the applicant with written confirmation that the employees and managers have done so upon their completion of the course.
135I also find it appropriate for 1303939 within 30 days of the date of this Decision to post Code cards in central locations throughout the hotel, particularly in the lobby and in any place the staff gather for breaks or meetings, to promote future compliance with the Code. These can be found at: http://www.ohrc.on.ca/en/human-rights-code-cards.
1361303939 also shall retain the services of a consultant with expertise in human rights to assist in the development of an internal human rights policy for the hotel that conforms to the Guidelines on Developing Human Rights Policies and Procedures published by the Ontario Human Rights Commission. Within six months of the date of this Decision, 1303939 shall finalize the policy and provide a copy of the policy to all of its employees, and provide the applicant with written confirmation that it has done so.
Order
137Karen Hambrock, 1776603 and David Hornstein are removed as parties to this Application, and the title of proceedings is amended accordingly.
138The respondent shall:
Pay to the applicant $20,000.00 for injury to dignity, feelings and self-respect;
Pay to the applicant the sum of $14,432.52 for wage loss from January 27, 2012 to December 31, 2013;
Pay to the applicant pre-judgment interest of 1.3% on the amounts awarded for injury to dignity, feelings and self-respect from January 27, 2012 to the date of this Decision, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.
Pay to the applicant pre-judgment interest of 1.3% on the amounts awarded for wage loss from January 25, 2013 to the date of this Decision, in accordance with the Courts of Justice Act, R.S.O 1990, c. C. 43.
Pay to the applicant post-judgment interest of 2% on the amounts awarded for injury to dignity, feelings and self-respect and wage loss, commencing 30 days after the date of this Decision in accordance with the Courts of Justice Act, R.S.O. 1990, c. C. 43;
Retain the services of a consultant with expertise in human rights to assist in the development of an internal human rights policy that conforms to the Guidelines on Developing Human Rights Policies and Procedures published by the Ontario Human Rights Commission, and shall finalize the policy and provide a copy of it to all employees within six months of the date of this Decision.
Ensure all employees and managers at the hotel take the Ontario Human Rights Commission's on-line training "Human Rights 101" (available at www.ohrc.on.ca/hr101) within 60 days of this Decision, and shall provide to the applicant written confirmation from those individuals that they have done so upon completion of the course; and
Within 30 days of the date of this Decision post Code cards in central locations throughout the respondent's place of business, particularly in the lobby and in areas where the staff takes breaks or has meetings.
Dated at Toronto, this 24th day of June, 2015.
"Signed By"
Dawn J. Kershaw
Vice-chair