HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N :
Michelle Jaques
Applicant
-and-
1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar and Haley Rooney
Respondents
DECISION
Adjudicator: Daniel Randazzo
Indexed as: Jaques v. 1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar
APPEARANCES
Michelle Jaques , Applicant
Chantal Tie, Counsel
1633092 Ontario Ltd. o/a TOSH Steakhouse and Haley Rooney, Respondents
Stephany Mandin, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, CH.19 as amended (the “Code”), on May 28, 2013, alleging discrimination with respect to employment because of sex (pregnancy). In summary, the applicant alleges that the respondents discriminated against her by terminating an accommodation plan, failing to accommodate her pregnancy and failing to schedule her for any shifts following her request for accommodation.
BACKGROUND AND EVIDENCE
2The Application was filed on May 28, 2013 and was scheduled for hearing on August 12, 2014. Prior to the commencement of the hearing I issued an Interim Decision (2014 HRTO 1195) directing that the Requests for Order During Proceeding (“RFOP”), which included the request to add Ms. Haley Rooney as a personal respondent and the request to have a witness, Ms. Karen McNeilly, testify by teleconference, would be addressed and dealt with at the August 12, 2014 hearing. The RFOP to have a witness, Ms. McNeilly, testify by teleconference encompassed the admissibility of the witness’ affidavit. At the hearing of August 12, 2014, the parties were able to resolve most of the procedural issues that were in dispute. Specifically, the parties agreed to admit into evidence the affidavit of Ms. Karen McNeilly. The issue with respect to adding Ms. Rooney as a personal respondent was not resolved. However by way of an Interim Decision (2014 HRTO 1237), I added Ms. Haley Rooney as a personal respondent.
3The hearing was held on January 26 and 27, 2015 and June 15, 2015. I heard from three witnesses: Ms. Michelle Jaques, the applicant, Ms. Haley Rooney, the personal respondent and co-owner of TOSH Steakhouse (“the corporate respondent”) and Ms. Karen McNeilly, a law clerk with the Human Rights Legal Support Centre (“HRLSC”).
4The applicant testified that she worked for the corporate respondent for approximately three years. During the period of her employment, the corporate respondent operated a restaurant which was comprised of a “bar area” located on the ground or main floor and a “dining room” located on the second floor. For the first year and half of her employment the applicant worked primarily if not exclusively in the bar area. In October 2011 she was moved to the dining room, a move the applicant perceived as a promotion. In February 2013, while employed in the dining room, the applicant advised, Ms. Janet Forsyth, her General Manager at the time, that she was pregnant. At the beginning of April 2013, at the request of the applicant, the General Manager changed applicant’s shifts from the dining room to the bar area to accommodate the applicant’s pregnancy as she was having difficulty managing the stairs to the dining room throughout her shifts in the dining room. The applicant’s initial shift changes, April 5 and 6, 2013, from the dining room to the bar area, were voluntary shift changes agreed to by a co-worker with the knowledge of the General Manager and shift manager. Following the voluntary shift changes, the General Manger began to schedule the applicant in the bar area. The applicant worked in the bar area on April 5 and 6, 2013 (voluntary shift change) and was scheduled by the General Manager and worked in the bar area on April 13, 19 and 20.
5On or about April 9, 2013, the General Manager suffered an injury which restricted her mobility and prohibited her from continuing to work for the corporate respondent. As a result, Ms. Rooney, the co-owner, who at the time was on a maternity leave, resumed her role of General Manager and took over scheduling responsibilities. When the applicant arrived at work on April 19, she noticed that the schedule had been changed and that she was no longer scheduled to work downstairs in the bar area but was required to work upstairs in the dining room. She spoke to the shift manager on duty at the time and advised him that she could not work upstairs due to her pregnancy. With the agreement of the shift manager on duty she worked in the bar area (downstairs) for her shift on April 19. She requested Ms. Rooney’s cell phone number but was denied. The applicant came to understand that Ms. Rooney had changed the schedule and that on a go forward basis she would be scheduled to work upstairs in the dining room. In the days that followed the applicant attempted to contact Ms. Rooney but was unable to do so. Eventually on April 26, 2013, she spoke with Ms. Rooney and advised her that she had a doctor’s note confirming her pregnancy and her need for accommodation. She was advised at that time by Ms. Rooney that she did not need to see the doctor’s note and further advised that there were no shifts for her in the bar area but that she could work upstairs in the dining room.
6Following the conversation of April 26, 2013, the applicant contacted the HRLSC who had both verbal and written communications with Ms. Rooney. Ultimately, the applicant was not scheduled to work following the exchanges between herself and Ms. Rooney and between the HRLSC and Ms. Rooney.
7Ms. Rooney testified that she, along with her husband, was the owner of the corporate respondent. Ms. Rooney was initially the General Manager responsible for the bar area and dining room. In August 2012, she hired Ms. Janet Forsyth to take over the General Manager role. Ms. Rooney testified that the General Manager was responsible for the overall operations of the restaurant including the responsibility of hiring, firing and scheduling, which included the authority over any requests for scheduling accommodations. During any given shift when the General Manager was not in, the Bartender served as a shift manager. The shift manager did not have the power to hire or fire and did not have authority over scheduling.
8With respect to the applicant, Ms. Rooney testified that in October 2011, the applicant was moved from the bar area to the dinning room. This move, which Ms. Rooney describes as a lateral move, was prompted by “awkward” interactions between the applicant and patrons. It was Ms. Rooney’s belief that the applicant’s strengths and weaknesses were better suited for the dining room. The applicant was described by Ms. Rooney as a great employee.
9Ms. Rooney worked until September 2012 at which time she left on maternity leave and Ms. Forsyth took over as General Manager. Ms. Rooney had no involvement with the restaurant’s operations from September 2012 to April 8, 2013. During this time Ms. Forsyth was responsible for all hiring, firing, discipline and scheduling, which included responsibility for any requests for scheduling accommodations.
10On April 8, 2013, Ms. Rooney, due to Ms. Forsyth’s injury, returned to work. Upon her return, Ms. Rooney changed the schedule and without any knowledge of the applicant’s pregnancy, scheduled the applicant to work upstairs in the dining room. Ms. Rooney testified that she did not learn of the applicant’s pregnancy until April 26, 2013. On April 26, 2013, the applicant called her at approximately 4:50 p.m. to discuss her work schedule and accommodations. Ms. Rooney testified that she was running late and as a result the conversation with the applicant was rushed. During this conversation the applicant advised Ms. Rooney that she worked in the bar area the previous shifts due to her pregnancy and, for the same reasons, she could not work in the dining room on her April 27, 2013 shift or on any shift thereafter. The applicant requested that her April 27, 2013 shift be changed from the dining room to the the bar area and advised Ms. Rooney that she had a medical note confirming her pregnancy and restrictions. Ms. Rooney advised that it was not possible to schedule her in the bar area and that she would find someone to cover applicant’s April 27, 2013 shift in the dining room. Ms. Rooney testified that the decision to cover the applicant’s April 27, 2013 shift was a short-term accommodation with the full intention of making long-term accommodations at a later date.
11The applicant attended at the restaurant once on May 1, 2013 to retrieve her tips but did not speak to Ms. Rooney. On May 2, 2013, Ms. Rooney and the applicant had a telephone conversation in which the applicant stated that due to her pregnancy she could not work upstairs in the dining room and that she was medically unfit to use the stairs to the dining room. Ms. Rooney advised the applicant that she could not work in the bar area. Ms. Rooney testified that she needed more information with respect to the applicant’s limitations before she could determine how to accommodate the applicant. Ms. Rooney asked the applicant to come in to discuss the matter however the applicant refused.
12On May 9, 2013, Ms. Rooney received a demand letter from Ms. Karen McNeilly, of the HRLSC containing facts which Ms. Rooney believed to be inaccurate and demands which Ms. Rooney took as threatening. With respect to her discussion with Ms. McNeilly, Mr. Rooney testified that she provided reasons, which included operational concerns, the applicant’s interaction with patrons approximately one and a half years prior and company policy as for her determination that applicant could not be accommodated by scheduling her shifts in the bar area. There were email exchanges between the parties after May 9, however they did not meet nor speak directly after this date.
EVIDENCE OF KAREN MCNEILLY
13The respondents objected to the applicant’s attempt to call Ms. Karen McNeilly, who is a law clerk with the HRLSC, as a witness and objected to the admission of a client tracking document which had not been previously produced to the respondents. The objection was based upon the grounds that the witness was a law clerk with HRLSC and it was improper, contrary to the rules of practice and procedure and a miscarriage of justice to allow her to testify. Furthermore, the witness had, in December 2013 provided an affidavit stating that applicant called the HRLSC “on or about April 26, 2013”. The respondents had relied upon this information in preparing their case. The applicant was now attempting to introduce a document which would, if accepted into evidence, suggest that the applicant called the HRLSC on a date other than and later than April 26, 2013. After hearing the parties’ submissions, I allowed the witness to testify. I noted that the admissibility of the witnesses’ affidavit, and therefore her testimony with respect to the affidavit, was previously dealt with and that the respondents had, on August 12, 2014, consented to the admission of the affidavit into evidence. With respect to the client tracking document, which had not previously been produced by the applicant, I ruled that the document would not be admitted into evidence. The admission of the document at such a late date would be unfair and highly prejudicial to the respondents, particularly when the respondents had relied upon the affidavit in the preparation of their case. I noted that should the witnesses’ testimony differ from that contained in her previously sworn statement, then the parties would be free to argue the weight and reliability of the witness’ testimony
14I note at this juncture that Ms. McNeilly’s testimony did differ from the statements contained in her affidavit. The witness testified that the applicant contacted the HRLSC on April 29th while her affidavit states that the HRLSC was contacted “on or about April 26th” Furthermore, the witness testified that the affidavit, when provided to the respondent in December 2013, attached an incorrect letter as its exhibit. The letter attached to the affidavit contained errors and differed from the actual letter that was sent to the respondent on May 9, 2013. Where the evidence of Ms. McNeilly differed from the evidence of Ms. Rooney, I preferred the evidence of Ms. Rooney and have not taken the testimony of Ms. McNeilly into consideration when making my determinations.
DECISION
15For the reason that follow, the Application is granted. The respondents unilaterally and without notice withdrew the accommodation plan that had been put into place by the respondents’ General Manager, failed to accommodate the applicant’s pregnancy and then failed to schedule the applicant for any shifts following the withdrawal of the accommodation plan. These actions taken by the respondents are violations of the Code.
16The relevant provisions of the Code are:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.
(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. R.S.O. 1990, c. H.19, s. 11 (1).
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.
45.2 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 out to do to promote compliance with this Act.
17It is well established that in an application alleging a violation of the Code, the applicant bears the onus of establishing a prima facie case of discrimination: Ontario Human Rights Commission v. Simpson-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 SCR 536 (“O’Malley”) at para 28. In establishing discrimination, the ordinary civil standard of proof upon a balance of probabilities applies: Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 SCR 202.
18In the matter before me the applicant has made three allegations of discriminatory acts:
The unilateral termination of the accommodation plan.
The failure of the respondents to accommodate the applicant’s pregnancy.
The failure of the respondents to schedule the applicant for any shifts following her request for accommodation.
The unilateral termination of the accommodation plan
19I accept the applicant’s evidence that her General Manager agreed to and implemented an accommodation plan. The applicant testified that with the General Manager’s and shift manager’s knowledge, she voluntarily made a shift change with a co-worker on April 5 and 6, 2013 that allowed her to work in the bar area and that following her discussions with the General Manager with respect to her pregnancy and need for accommodation, she was scheduled by the General Manager to work in the bar area. This is supported by Ms. Rooney who acknowledged in her testimony that the General Manager was responsible for accommodating shift requests. Furthermore, the work schedules for the period of April 8 to 21, 2013 show the applicant being scheduled the bar area on the main floor. Finally, Ms. Rooney acknowledged and the documents and work schedules confirm, that upon Ms. Rooney’s return to work, she changed the work schedules and moved the applicant from the bar area to the dining room.
20The respondents argued that the respondents could not violate the Code by terminating the applicant’s accommodation without knowing that an accommodation plan was actually in place. The respondents argue that Ms. Rooney changed the work schedule on or about April 10, 2013 but did not become aware of the applicant’s pregnancy until her conversation with the applicant on April 26, 2013. The respondents rely upon Sloan v. Just Energy Corporation 2012 HRTO 127 (“Sloan”); King v. S.P. Data Capital 2012 HRTO 500 (“King”); Piri and Nestle Waters Canada 2014 HRTO 1535 (“Piri”); Retiounsky v. Roma Premium Meats Ltd. 2011 HRTO 1176 (“Retiounsky”) and Comeau v. Community Solutions 2010 HRTO 1391(“Comeau”) in support their position that I can not infer knowledge of the applicant’s pregnancy and accommodation plan and to find a violation of the Code, Ms. Rooney and the corporate respondent must have actual knowledge of applicant’s pregnancy and accommodations when Ms. Rooney changed the applicant’s shift.
21I accept that in Sloan the manager responsible for the applicant’s termination was unaware of the applicant’s pregnancy until after the decision to terminate her employment was made and as a result the applicant’s pregnancy could not be a factor in the decision. Similar findings and results are found in King, Piri, Retiounsky and Comeau. However, the case before me is different and distinguishable from the cases relied upon by the respondents. The initial allegation is not that the respondents terminated the applicant’s employment but that they terminated or withdrew an accommodation plan. Even if I were to accept that the personal respondent, Ms. Rooney, was unaware of an accommodation plan at the time she changed the applicant’s schedule, I find that the corporate respondent, the applicant’s employer, through the General Manager was aware that the shift change was in place to accommodate the applicant’s pregnancy. The evidence clearly establishes that the General Manager had the responsibility and authority to provide shift accommodations and did so after learning of the applicant’s pregnancy. The corporate respondent had actual knowledge of the applicant’s pregnancy, request for accommodation and the agreed to accommodation plan. The fact that the General Manager failed to record the accommodation plan or failed to inform Ms. Rooney of the accommodation plan does not lessen the corporate respondent’s duty or alleviate the corporate respondent of its duty to accommodate the applicant’s pregnancy and to maintain the accommodation plan. I note that accommodation plans should be flexible and responsive to changing circumstances and may, in some circumstances, be changed or altered by the employer. However, in the matter before me, the respondents did not provide sufficient cause or justification for the decision to terminate the accommodation plan. As will be analysed in greater detail below, the fact that there was an awkward interaction with patrons a year and a half prior, company policies and the desire not to disrupt or inconvenience other employees do not justify the termination of the accommodation plan. Simply put, the reasons put forth by the respondents for terminating the accommodation plan do not amount to undue hardship. I find that the respondents breached sections 5(1) and 11(2) of the Code by terminating the applicant’s accommodation plan.
The failure of the respondents to accommodate the applicant’s pregnancy
22On April 26, 2013, the applicant called Ms. Rooney and informed her that she had worked in the bar area on her previous shifts as an accommodation for her pregnancy. The applicant advised Ms. Rooney that she had obtained a doctor’s note which confirmed her pregnancy and need for accommodation. During the discussion the applicant demanded that due to her pregnancy she could not work in the dining room and wanted to continue her accommodation of being scheduled in the bar area. Ms. Rooney advised the applicant that she would not be scheduled in the bar area and that they would have someone cover the applicant’s April 27, 2013 shift in the dining room. The applicant testified that Ms. Rooney told her that she could not work in both the bar area and the dining room and that the bar area was already overstaffed. The conversation ended with Ms. Rooney instructing the applicant to come to the restaurant and talk to her.
23Following this conversation, the applicant contacted the HRLSC. There was some dispute over the exact day the applicant contacted the HRLSC. The respondents argued that based upon the affidavit of Ms. McNeilly, the applicant contacted the HRLSC on April 26, 2013 mere minutes after her conversation with Ms. Rooney. The respondents suggest that this is evidence that the applicant had no intention of working and no true desire to seek an accommodation of her pregnancy. I agree that Ms. McNeilly’s testimony contradicts her previously sworn statement and agree that her affidavit, which attached the wrong letter as an exhibit, contained inaccuracies. For these reasons I find that Ms. McNeilly’s evidence is not reliable and consequently I have not relied upon this evidence in coming to my decision. Having said this, I do not agree, even accepting that the applicant contacted the HRLSC on April 26, 2013, that the applicant had no intention of working and no true to desire to seek an accommodation of her pregnancy. The conversations and email exchanges, detailed below, clearly demonstrate a desire on the part of the applicant to return to work.
24On May 1, 2013, the applicant attended at the restaurant to retrieve her pay but did not speak to Ms. Rooney at that time despite knowing that Ms. Rooney was present at the restaurant. On May 2, 2013, Ms. Rooney called the applicant to discuss the situation. I accept Ms. Rooney’s testimony with respect to this conversation, which was, for the most part, corroborated by applicant’s testimony and find that Ms. Rooney asked the applicant if she was going to quit to which the applicant advised that had no intention of quitting her employment. Ms. Rooney informed the applicant that she could not work in the bar area and provided reasons. In her testimony Ms. Rooney confirmed that those reasons included staffing issues with other servers, an awkward interaction between the applicant and patrons one and a half years prior and company policy which prohibited servers from working in both the dining room and bar area. The applicant informed Ms. Rooney that she was medically unfit to work in the dinning room. I note that the applicant’s note from her physician states, “Michelle should avoid going up the stairs repeatedly at work due to her pregnancy” The conversation, like the April 26, 2013 conversation, was short, tense and escalated quickly and ended with Ms. Rooney asking the applicant to come in and meet with her. This was the last verbal exchange between the parties.
25I accept Ms. Rooney’s evidence with respect to the May 14, 2013 telephone conversation between herself and Ms. McNeilly. Ms. Rooney testified that during this conversation she advised Ms. McNeilly that it was not her preference to have the applicant work in the bar area and provided Ms. McNeilly with her reasons why she would not accommodate the applicant in the bar area.
26In the parties’ email exchange of May 17, 2013 Ms. Rooney advised the applicant that accommodation in the bar area was not an option, for reasons previously provided to her and her representative and that an accommodation of the request to work in the bar area would cause undue hardship to the respondents. The applicant ended the email exchange by requesting either a copy of the work schedule for the next week indicating her hours and location of work or a copy of her Record of Employment.
27The respondents have provided several reasons why the applicant could not be scheduled to work in the bar area and have claimed that to accommodate the applicant in the bar area would have caused the respondents undue hardship.
28Ms. Rooney testified that there was a policy that prohibited employees working in both the bar area and the dining room. The applicant in her testimony confirmed that this was one of the reasons put to her by Ms. Rooney during their April 26, 2013 telephone conversation. The evidence does not establish that such a policy existed during the relevant time period. The policy, if it did exist, was unwritten and was clearly not applied by the General Manager when she permitted the applicant to work in the bar area and then scheduled her in the bar area. Furthermore, the applicant was permitted by the shift manager to change shifts with a server in the bar area on April 5 and 6, 2013. Finally, the evidence establishes that other employees were scheduled to work in both the bar area as well as the dinning room. The respondents’ assertion that the applicant could not be accommodated because of this policy is simply not supported by the evidence.
29Ms. Rooney suggested in her testimony that there was a similar policy that required employees to work a minimum of three shifts in their area. The applicant generally worked one to two shifts per week, and as suggested by the respondent, if the applicant were to be accommodated in the bar area, she may be subjected to layoff as she may not have been able to work her required three shifts. It was not clear whether this was a different policy then the policy addressed above or simply a variation of that policy. I have addressed it as if it were a different policy. Similar to the previous policy, the “three shifts per week policy” was not in writing. I have serious doubts that this was an employment policy enforced by the respondents.
30Although not specifically addressed in detail by the parties, it is important to consider the implication if in fact the “three shift per week policy” referred to above was an employment policy applied or enforced by the respondents. Under section 11, where an otherwise neutral policy exists that results in an exclusion, restriction or preference of a group of persons identified by a prohibited ground (e.g. pregnancy), then a member of that group may be entitled to some form of accommodation of that otherwise neutral requirement to ensure effective equality of treatment. It is the respondent’s onus to establish that the otherwise neutral policy is a bona fide requirement by establishing that the individual can not be accommodated to the point of undue hardship. In the matter before me, the respondents’ carry the burden to establish that the “three shift per week policy” is “reasonable and bona fide”. If accepted that the policy is reasonable and bona fide, the respondents must then establish that they couldn’t accommodate outside the policy without undue hardship. To this end, the respondents have not called sufficient evidence to establish the bona fide of the policy and furthermore, they have not called sufficient evidence to establish that they could not, to the point of undue hardship, accommodate the applicant with respect to this policy.
31Ms. Rooney testified that an awkward interaction between the applicant and patrons in October 2011, one and a half years prior to the request for accommodation, was reason not to grant the accommodation. I do not accept that this is a justifiable reason to refuse an accommodation request. The incident, in both examination and cross-examination, was described in only vague terms. Further, the incident was never specifically addressed with the applicant at the time of the occurrence and finally, it was clearly Ms. Rooney’s opinion that although the “awkward interaction” prompted the respondents to move the applicant to the dining room, the move to the dining room was not a disciplinary move. In her testimony, Ms. Rooney suggested that the applicant’s strengths and weaknesses were better suited to the dining room as opposed to the bar area. This may be an accurate observation of the applicant’s abilities, however, there is no evidence which establishes that the applicant could not perform the duties of a server in the bar area. The applicant, who was described as a “great employee” by Ms. Rooney, worked in the bar area with full knowledge and consent of the General Manager and the shift manager and did so without complaint or issue.
32Ms. Rooney also suggested that to accommodate the applicant in the bar area would have disrupted other employees or caused them inconvenience. Although I can accept that the effect of an accommodation plan on co-workers may, in some certain circumstances, be a consideration in determining whether or not the accommodation causes undue hardship, in the matter before me there is no evidence which supports this argument. If anything, the evidence establishes that co-workers may have been willing, as they did on April 5, 6, and 20, 2013, to voluntarily switch shifts with the applicant to allow her to work in the bar area to accommodate her pregnancy.
33It is necessary for me to address the conduct of the applicant throughout the accommodation process and in her interactions with Ms. Rooney. The respondents have argued that the applicant’s conduct was such that she failed to cooperate in the accommodation process and, by her actions, exacerbated the situation and frustrated the efforts of the respondents to find work suitable to accommodate the applicant’s pregnancy. The respondents point to the fact that the applicant did not meet with Ms. Rooney after being invited to do so during the telephone conversations of April 26, 2013 and May 2, 2016. The respondents also direct my attention to the fact that the applicant did not take the opportunity to speak with Ms. Rooney on May 1, 2013 when the applicant attended at the respondents’ establishment and did not, as requested to do so, meet with Ms. Rooney following their May 17, 2013 email exchange. The respondents argued that had the applicant met with the respondents, Ms. Rooney would have been able to propose alternative accommodation plans such as using a junior server in the dining room to assist the applicant, scheduling the applicant to work as a server at BBQ’s or scheduling the applicant as a hostess. The respondents argue that the applicant demanded to work in the bar area and would not listen to nor accept any other option. The respondents argue that the applicant, as an employee, is not entitled to dictate the terms of the accommodation.
34It is well established that the duty to accommodate has both a procedural and a substantive component. To meet the procedural aspect of the duty to accommodate, a respondent must take adequate steps to explore what accommodation is needed, and to assess accommodation options. The substantive component of the analysis considers whether the accommodation offered was reasonable or whether a respondent was justified in not providing accommodation. The respondent bears the onus of demonstrating the considerations, assessments, and steps it undertook to accommodate the employee to the point of undue hardship. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 SCR 3 (“Meoirin)
35The Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud 1992 CanLII 81 (SCC), [1992] 2 SCR 970 (“Renaud’) described the accommodation process as a multi-party inquiry and that an employee seeking accommodation is responsible for requesting accommodation and must facilitate the search for accommodation, which includes accepting reasonable proposals that would meet his or her needs. Jurisprudence regarding the duty to accommodate clearly establishes that all parties to the accommodation process have obligations. An individual seeking accommodation, for example, is responsible for initiating the process by stating the need for accommodation. The duty to accommodate is a cooperative duty and requires the applicant, who is seeking accommodation, to provide sufficient information to allow the respondents to understand the nature of the disability. The duty to accommodate would require, at the least, the party seeking accommodation to act in a reasonable and cooperative manner. See for example, Matthews v. Chrysler Canada Inc., 2011 HRTO 1939 and Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362.
36In Renaud, the Supreme Court of Canada also noted that the employer is in the best position to determine how to provide accommodation without undue interference to its operations and is responsible for initiating proposals to provide reasonable accommodation to the point of undue hardship. Further, the term “undue hardship” infers that some hardship is acceptable and that an employer must show actual and substantial interference with its operations to establish undue hardship. Minor inconvenience or interference does not suffice.
37I will first address the applicant’s conduct. The applicant advised her employer in February 2013 of her pregnancy. In April 2013, she again discussed her pregnancy and need for accommodation with her General Manager and accepted the accommodation of working in the bar area. This accommodation plan was terminated by the respondents within days of its implementation. The applicant then initiated the accommodation process with Ms. Rooney. She informed Ms. Rooney of her pregnancy and her need for accommodation and advised that she had medical confirmation of this. The applicant advised that she could not work in the dining room and demanded that she be rescheduled in the bar area in accordance with the accommodation put in place by the General Manager. The applicant’s conduct as described above meets her overall obligations and did not amount to frustration of the accommodation process.
38With respect to the failure or refusal of the applicant to meet with her employer on those occasions when she had the opportunity to do so or was invited to do so by her employer, I find that the failure to meet was not ideal, however, in the circumstances of this matter, the applicant’s failure to meet with Ms. Rooney did not frustrate the accommodation process. There were other communications taking place at the time and other opportunities for the respondent to signal its willingness to consider some form of accommodation. The overall context was also that the respondents had cancelled the existing accommodation put in place and appeared to be insisting the applicant return to work unaccommodated. Considering all of this I do not find that the decision not to meet in person amounted to frustration of the respondents’ own procedural and substantive duty to accommodate the applicant’s pregnancy.
39The respondents’ argued that there were alternatives to the applicant being scheduled in the bar area and the applicant’s conduct frustrated the opportunities to explore any alternatives. It is the respondents’ responsibility to initiate proposals for accommodation and they bear the onus to establish that they took the necessary procedural and substantive steps to accommodate the applicant to the point of undue hardship. Ms. Rooney, despite opportunities to do so during their telephone conversations or by way of email, chose not to communicate those alternatives to the applicant. I find that the respondents failed in their duty to accommodate the applicant’s pregnancy by not communicating alternative accommodations to the applicant. The respondents’ communication to the applicant was effectively to choose between working in the dining room, unaccommodated, a position she was not medically fit to perform or not work at all. Although the applicant does share responsibility for participating in the accommodation process, the respondents have the burden of establishing that they met their duty to accommodate the applicant to the point of undue hardship. I find that the respondents did not meet this burden.
40With respect to the reasons put forth by the respondents to justify their decision not to accommodate the applicant’s pregnancy by scheduling her in the bar area, I find that these reasons were not true impediments to accommodation and do not constitute undue hardship. I therefore find that the respondents violated sections 5(1) and 11(2) by failing to accommodate the applicant’s pregnancy.
The failure of the respondents to schedule the applicant for any shifts following her request for accommodation
41The law does not require that I find that the applicant’s pregnancy and request for accommodation was the sole or dominant reason for the respondents not scheduling her for any shifts. I simply need to decide whether her pregnancy and request for accommodation was a factor in that decision (See: Velenosi v. Dominion Management, (1997), 1997 CanLII 14482, 148 DLR (4th) 575 (Ont. C.A.); Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605, 16 OR (3d) 290 (Div. Ct.)).
42Prior to the applicant’s request for accommodation she was scheduled for one to two shifts per week. Following her conversation with Ms. Rooney on April 26, 2013 and May 2, 2013 and following their email exchange of May 16 and 17, 2013, the applicant was effectively removed from the work schedule. Given my findings above with respect to the respondents’ failure to accommodate the applicant’s pregnancy, it is not necessary to review the evidence again. However, it is instructive to point out that in the last communication between the applicant and Ms. Rooney, a communication that was predicated upon and discussed the applicant’s accommodation request, the applicant ended the communication with a request that she either be provided with shifts or a Record of Employment. There is no dispute that following this email exchange the applicant was not scheduled for work. I find that the evidence, described in greater detail above, demonstrates that the applicant’s pregnancy and request for accommodation were significant or dominant reasons for the respondents not scheduling the applicant for work.
43The respondents by failing to schedule the applicant for any shifts following her request for accommodation effectively dismissed the applicant from employment and violated sections 5(1) and 10(2) of the Code.
REMEDY
44Having found that the respondents violated the Code by terminating the applicant’s accommodation plan, failing to accommodate the applicant’s pregnancy and constructively dismissing her in failing to scheduling the applicant for work following her request for accommodation, I must now fashion a remedy. The applicant claimed lost wages of $2,682.14 which represents lost wages for 48 shifts. This is based upon three shifts per week for sixteen weeks. The applicant had testified that she would have continued to work until the end of July. The applicant also claimed lost tips of $4,800.00 which represents $100.00 per shift for 48 shifts over sixteen weeks. The applicant’s total claim for lost wages and tips was $7,662.14. The respondents did not dispute that had the applicant continued to work she would have worked until July 31, 2013. The respondents evidence was that the average tips per shift was $60.00 per month. This was based upon an Employee Cash Out Report for the period of January 1, 2013 to April 20, 2013. The respondents dispute that the applicant worked three shifts per week and that any damages with respect to lost wages should be based upon one to two shifts per week. The applicant’s evidence that the $60.00 in tips per shift was based solely on tips recorded on credit cards and did not include cash tips.
45The applicant’s evidence that she would have worked three shifts per week for sixteen weeks (the dates for which she claimed lost wages) from mid-April to the end of July 2013 is speculative. The applicant testified, and the respondents do not dispute, that she would have stopped working by July 31, 2012. The period of loss is therefore from April 27, 2013 to July 31, 2013. Over this 14 week period the applicant would have worked twenty-eight shifts which is equivalent to two shifts per week. The evidence with respect to the length of shift is not precise. However, the evidence before me establishes that the average shift is approximately 5.5 hours. The applicant’s loss is therefore 154 hours (28 x 5.5 hours) at the rate of $8.90 per hour for a wage loss, not including tips, of $1,370.60. With respect to lost tips, I accept the applicant’s evidence that she earned on average $100.00 per shift in tips. The respondents’ estimate of tips, as reported by the Employee Cash Out Report, does not include cash tips. It is reasonable to conclude that a server’s tips would consist of both cash tips as well as those recorded on the Employee Cash Out Report. Other than the Employee Cash Out Report, the respondents did not provide any evidence or submissions that would provide me with a basis to question the applicant’s estimate of her tips, once cash tips were factored in. Applying the $100.00 per shift over the same representational period of April to July 2013 the applicant has lost $2,800.00 in tips bringing her total wage loss including tips to $4,170.60.
46The 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] OJ No. 13 at para. 27 (C.A.). In this case, the applicant is entitled to lost wages for a fourteen week period commencing in approximately mid-April 2013. The midpoint of the fourteen week period is approximately June 15, 2013. Prejudgment interest shall run on the compensation for lost wages from this date. While entitlement to prejudgment interest runs from June 15, 2013, the rate itself is based on when the application was commenced, in this case, May 28, 2013. The applicable prejudgment interest rate under the CJA is 1.3%.
47The applicant has also claimed $20,000.00 in general damages. The applicant testified that the discharge caused her anxiety and stress at a very vulnerable time. As a consequence of losing her employment with the respondents, she was forced to leave her apartment and move into her sister-in-law’s basement.
48In reviewing decisions of the Tribunal where pregnancy was either a factor or the sole reason to terminate employment, I note that to date awards for injury to dignity, feelings and self-respect have generally ranged between $10,000.00 and $20,000.00. See for example: Bickell v. The Country Grill, 2011 HRTO 1333 ($15,000.00), Graham v 3022366 Canada Ltd., 2011 HRTO 1470 ($20,000.00), Maciel v. Fashion Coiffures, 2009 HRTO 1804 ($15,000.00), Purres v. London Athletic Club (South) Inc., 2012 HRTO 1758 ($10,000.00), Guay v. 1481979 Ontario, 2010 HRTO 1563 ($10,000), Peart v. Distinct HealthCare Services Inc., 2013 HRTO 305 ($12,500.00), and Korkola v Maid Day! Maid Day! Inc., 2013 HRTO 525 ($13,000.00).
49In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal noted at paragraphs 53-54 that:
… injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
…Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
50In the matter before me, I have found that the respondents violated the Code by terminating the applicant’s accommodation plan, failing to accommodate the applicant’s pregnancy and by constructively dismissing her by failing to schedule the applicant following her request for accommodation. I have found that the applicant’s pregnancy was a significant factor in the respondents’ decision not to schedule the applicant for work. The applicant testified that the events leading up to her constructive dismissal and her eventual dismissal were extremely stressful. As a result of the loss of income, she lost her home and was required to live with family members. I am mindful that the impact of these events, assessed subjectively, the stress and anxiety experienced by the applicant, and objectively, the loss of her job and home and the necessity of having to move in with family members, occurred at a time when the applicant was in a very vulnerable position in her life. In the circumstances of this case, I find it appropriate to award the applicant $15,000.00 in general damages for injury to dignity, feelings and self-respect.
51The applicant is entitled to prejudgment interest of 1.3% on this amount from the time the cause of action arose, which is the date of her termination, to the date of this Decision. I find the date of her termination to be April 20, 2013, the date following the applicant’s last shift.
52I also find that it is appropriate given the nature of the business, the central role played by the individual respondent in the incidents of discrimination that I have found occurred that the respondents’ are jointly and severally liable to satisfy the remedial awards I have made.
53The manner in which Ms. Rooney approached the accommodation process leads me to conclude that the respondents would benefit from training on their obligations under the Code. I order that, within 30 days of the date of this Decision, the personal respondent and all directors and any managerial staff of 1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar are to complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101). The respondents are also directed to confirm in writing to the applicant within 60 days of this Decision that they have complied with this Order regarding training.
ORDER
54The Application is granted and I make the following Orders:
The respondents, on a joint and several basis, are to pay the applicant $4,170.60 as compensation for lost income, plus prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c.43 at a rate of 1.3% from June 15, 2013, the date following the applicant’s last shift, to the date of this Decision. The respondents are to pay this within 30 days of the date of this Decision. If they fail to do so, then post-judgment interest at the rate of 3% shall be payable in accordance with the Courts of Justice Act on any amounts not paid by that date.
The respondents, on a joint and several basis, are to pay the applicant $15,000.00 as compensation for injury to dignity, feelings, and self-respect, plus prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c.43 at a rate of 1.3% from April 20, 2013, the date following the applicant’s last shift, to the date of this Decision. The respondents are to pay this within 30 days of the date of this Decision. If they fail to do so, then post-judgment interest at the rate of 3% shall be payable in accordance with the Courts of Justice Act on any amounts not paid by that date;
The personal respondent and directors and any managerial staff of the 1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar are to complete the Ontario Human Rights Commission’s basic on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 30 days of the date of this Decision. The respondents are also directed to confirm in writing to the applicant within 60 days of this Decision that they have complied with this Order regarding training.
Dated at Toronto, this 31st day of March, 2016.
“Signed by”
Daniel Randazzo
Member
CORRECTION
The Decision released on March 31, 2016 incorrectly spelt the applicant’s name in the appearances page. This error has been corrected.
Dated at Toronto, this 1st day of April, 2016.
“Signed by”
Daniel Randazzo
Member