Brillinger v. Edery, 2016 HRTO 1450

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kailyn Brillinger Applicant

-and-

Ben Edery Respondent

DECISION

Adjudicator: Naomi Overend

Date: November 10, 2016

Citation: 2016 HRTO 1450

Indexed as: Brillinger v. Edery

APPEARANCES

Kailyn Brillinger, Applicant ) Jennifer Doyle, Representative

Introduction

1In the summer of 2015, the applicant, Kailyn Brillenger, suffered a concussion. Her doctor recommended she take approximately three-weeks off work, when the concussion did not resolve immediately.

2This fact was communicated to the store manager at the shop where she worked and shortly thereafter, her employment was terminated by way of text. The decision appears to have been rescinded some time after the applicant’s aunt intervened on her behalf, but by then the applicant believed that the employment relationship had been ended by the respondent’s conduct.

3The applicant filed this Application alleging 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”). The respondent filed a brief Response, but then did not participate in the hearing, which proceeded in his absence.

Decision and analysis

The Respondent

4The respondent, Ben Edery, is the owner of Menshie’s Bomanville, the shop at which the applicant was employed. He was named as an individual respondent; the corporate entity was not named.

5The Notice of Application was sent to the respondent on August 14, 2015. He was directed to file a Response (Form 2) by September 18, 2015. He did not file by that date and the Tribunal sent him a follow-up letter, entitled “No Reponse to Notice of Application” on September 22, 2015. This letter warned him of the consequences of not responding to an application (see Rule 5.5 of the Tribunal’s Rules of Procedure).

6The respondent sent an email to the Registrar on September 25, 2015 asking for the “orginal letter,” which he states he did not receive, and an extension to file the Response. He provided a new mailing address, but his email address remained the same.

7The extension request was granted and the respondent filed his Response and participated in mediation. When mediation failed to resolve matters, the Tribunal scheduled a hearing for August 8 and 9, 2016. A Notice of Hearing was sent to the parties on March 21, 2016 by email and regular mail. The respondent’s Notice was sent to the new mailing address provided by the respondent and not returned as undeliverable

8The parties were advised that they were required to disclose their arguably relevant documents to each other by April 11, 2016 and their hearing documents and witness statements were to be delivered to each other and the Tribunal by June 24, 2016. The applicant complied with her requirement to disclose her arguably relevant documents by the first date; the respondent did not.

9Neither party had complied with the June 24, 2016 deadline for filing witness statements and hearing documents, prompting the Tribunal to send out a notice by email on June 30, 2016, reminding them of their respective obligations. The applicant requested and was granted an extension to file her witness statement.

10The respondent, however, did not respond to this email, and so the Tribunal sent a Case Assessment Direction to the parties on July 26, 2016 via mail and email. The respondent was specifically warned that if he did not provide his materials by July 29, 2016, he might not be permitted to call any witnesses or documentary evidence. The respondent did not comply with this direction, nor did he appear at the hearing on August 8, 2016.

11I am satisfied that the respondent received ample notice of this hearing, but has chosen to not participate. Where a respondent has stopped participating in a matter, the Tribunal will proceed to determine the Application in the absence of the respondent, which I have done in this case.

Factual findings

12The applicant adopted her written statement and submitted her documents, as had been provided to the respondent in accordance with the Notice of Hearing. In addition, she and her aunt, Jennifer Doyle, testified at the hearing, largely in response to questions that I had arising from the written material. I have based my findings on this information, and have not relied on the Response in light of the respondent’s failure to participate at the hearing.

13The applicant started working for the Menshies in Bowmanville (“the store”) as a cashier/server in April 2015. She suffered a severe concussion on June 23, 2015, in her third month of employment. Her mother delivered a medical note to the store on June 24, 2015, saying that she would be off work for two days. However, the applicant did not feel better on June 25 and went to her doctor that day. He prescribed medication for her and provided her with a note saying that she would be unable to work until Monday, July 13, 2015. Her mother also delivered this note to the store.

14The first response from the store was a text message from the store manager, dated June 26, 2015, which said:

Hello Kailynn,

I am sorry to hear that you are not well, and I hope that you feel better soon. In the meantime, you know when we hired you, the staff was kept to a minimal [sic] so everyone could get some decent hours. Your absence has left us short-handed, and I am left with no other choice but to let you go. I have to hire someone as soon as possible. Where you are feeling better, and are able to work, please feel free to contact me, and if a position becomes available in the future, we can discuss the possibility of rehiring you.

15The applicant’s mother contacted the store manager after the applicant received this to dispute the validity of this termination. She was told by the store manager that the applicant was a bad employee and so the store manager had been told by the respondent to fire her.

16The applicant contacted her aunt, who is a human resources and employee relations consultant, who in turn attempted to phone first the store manager and then, when the store manager did not return her calls, the respondent. Ms. Doyle and the respondent spoke on June 29, 2015. She testified that the conversation was unpleasant and that the respondent was hostile. He told Ms. Doyle that he had the right to fire the applicant because she was still on probation and was a bad employee. She told him that what he was doing was illegal and that they would be instituting legal action. The conversation ended when the respondent hung up on her, after telling her to “fuck off.”

17In light of this, the applicant was surprised when she received a text message from the store manager on July 9, 2015 at 3:41 p.m., which stated:

Hello Kailynn,

I am preparing the schedule for next week and your doctor’s note states that you are ready to return to work as of Monday, July 13, 2015. Will you be available to schedule?

18The applicant did not respond to this message and so received a second message – this time an email – from the store manager on July 10, 2015 at 3:34 p.m. The subject line states “Return to work” and the content was very similar to the first message. The applicant’s aunt responded to that email at 4:56 p.m.:

Marion,

As I indicated to Ben during our brief telephone conversation and my subsequent text message on June 29^th, I am now representing Ms. Brillinger.

I respectfully request that all correspondence related to her employment with Menchies be sent directly to my email address [address omitted].

Your email dated June 23^rd [sic] clearly stated that you had terminated Ms. Brillinger so therefore she has no obligations to respond to your email request.

Please be advised that today I filed a claim with the Human Rights Commission [sic] on Ms. Brillinger’s behalf with respect to this matter. Should either you or Ben wish to discuss options to settle this matter, you may call or email me directly. Otherwise, I look forward to vigorously pursuing this matter through the appropriate legal channels.

19I asked the applicant why she did not take the respondent’s offer at face value and indicate a willingness to be put back on the schedule. She said that when she heard that the respondent and store manager were justifying their actions by saying she was a bad employee, she no longer wanted to return. She said the respondent had periodically come in the store during the time that she worked there and the four or five times conversations they had had were unpleasant.

20The applicant’s mother returned the applicant’s keys to the store on July 10, 2015, which prompted a final email from the store manager at 5:13 p.m.:

Hello Kailynn,

Today your mother was here to return your store key. Thank you, however, we hired you, and would like to know if this is your confirmation that you will not be returning to work? Thank you.

21This concluded the communications between the parties. The Application was, in fact, filed on July 10, 2015.

Decision

22Section 5(1) of the Code prohibits discrimination on the basis of disability. Section 10(2) of the Code defines disability to include “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury…” The applicant explained that she had symptoms of the concussion for several months, and was only able to return to work in February this year. This would constitute a disability for the purposes of the Code.

23The evidence shows that the respondent, as owner of the store, was the person ultimately responsible for making the decision to terminate the applicant’s employment. He apparently believed that he could do so without repercussion because she was a probationary employee. Whether or not the applicant was still on probation is disputed by the applicant, but regardless, the protections of the Code apply to probationary employees as well as those who have passed their probation.

24It is clear on the face of the June 26, 2015 text to the applicant that the absence caused by her disability was a factor (indeed, despite the subsequent attempts to blame the termination on her employment conduct, likely the primary factor) in the respondent’s decision to terminate her employment. By not participating in the process, the respondent is precluded from availing himself of any defence he might have had under ss. 11 or 17 of the Code.

Remedy

25The applicant seeks monetary compensation pursuant to s. 45.2(1)1 of the Code, including monetary compensation (“damages”) for injury to dignity, feelings and self-respect in the amount of $10,000.00.

26Initially, in her Application, the applicant sought only $1,000.00 for emotional distress and $1,800.00 for her loss of wages, but at the hearing, sought $10,000.00 for emotional distress. Ms. Doyle stated at the hearing that she believed she had advised the respondent and Tribunal of this on April 11, 2016 (approximately four months in advance of the hearing). I advised her that there was no record of such a request in the Tribunal’s file.

27However, in reviewing the applicant’s April 11, 2016 Statement of Delivery for her arguably relevant documents, one of the documents delivered to the respondent at that time was a “timeline of events.”

28Although the Tribunal did not get a copy of this document at the time (the Tribunal’s Rules do not require the parties to provide the Tribunal with their arguably relevant documents), it was entered into evidence at the hearing. The concluding section of this timeline is entitled “Remedy Sought” and includes the following:

• $10,000.00, to be paid out as “General Damages”

• That Mr. Edery be directed to take sensitivity training, so as to prevent a similar situation from happening again

[italics in original].

29I am prepared to accept that the applicant gave notice to the respondent that she was seeking a higher level of damages on April 11, 2016. Moreover, in an email sent to the Tribunal on August 11, 2016, enclosing the applicant’s pay stubs (as directed by me at the hearing earlier that week), Ms. Doyle stated: “On April 11^th, I filed to amend the original financial remedy sought to $10,000.00. However, the form was not in the case file. I am happy to file a second request if you wish...” This was copied to the respondent and, in fact, prompted a response from him to Ms. Doyle.

30In 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.

31In this Application, the information I regard as salient is as follows:

• The applicant was young, and this was her first job following graduation from high school. She had hoped to use the money earned at it to attend a post-secondary program;

• At the time of her termination, she was experiencing the effects of a debilitating concussion that left her unable to work for several months;

• She testified that in addition to the confusion and anger resulting from her termination, she also had a lot of anxiety associated with it and wound up taking anti-anxiety medication; and

• She felt embarrassed about being “fired” and told she was a “bad” employee.

32The caselaw suggests that the amount requested by the applicant is within the range of awards for monetary compensation where an individual has lost her job as a result of disabilty-related absence. Accordingly, I find it appropriate to award $10,000.00 for the intangible losses flowing from the respondent’s discriminatory act.

33I am also satisfied that the circumstances in this case support an order for the non-monetary remedy requested by the applicant. The respondent was not present at the hearing. It is not clear to me from the materials he filed that he appreciates his responsibilities under the Code as an employer. In my view, he would benefit from learning about his obligations under the Code via the e-learning module called “Human Rights 101” available through the Ontario Human Rights Commission’s website.

Order

34The Tribunal orders the following:

1. The respondent shall pay the applicant $10,000.00 as monetary compensation for damages to her dignity, feelings and self-respect within 30 days of the date of this Decision.

2. Within 30 days of this Decision, the respondent shall complete the Human Rights 101 e-learning module provided by the Ontario Human Rights Commission and provide written confirmation to the applicant of the same; and

3. Post-judgment interest shall be paid on any amounts not paid within 30 days of the date of this decision in accordance with the Courts of Justice Act, R.S.O. 1990, c. C. 43.