HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Natalie Browning
Applicant
-and-
Northend Body Shop Ltd.
Respondent
DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Browning v. Northend Body Shop Ltd.
APPEARANCES
Natalie Browning, Applicant
Beth Walden, Counsel
Northend Body Shop, Respondent
Farid Arbi, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant alleges the respondent discriminated against her on September 16, 2015, when she attended for an interview for a co-op placement, as follows:
a. Denied her a co-op placement because of her sex; and
b. The owner of the respondent, Andy Beyti, made discriminatory comments to her in that interview.
preliminary issues
Witness Statement of one of the Respondent’s Witnesses
3The applicant’s counsel submitted the proposed evidence of one of the respondent’s witnesses amounted to character evidence and asked that it be excluded. The respondent objected. I made a ruling in advance of the evidence being heard, but shortly after, the respondent advised the Tribunal that this witness was not attending the hearing in any event. Therefore, there was no need for my ruling.
Respondent’s Witness Statements
4The applicant objected to the respondent’s witness, Mr. Beyti, giving evidence beyond the scope of what was in Schedule A of the Response because he did not file a witness statement setting out his proposed evidence.
5The respondent’s counsel submitted that the respondent’s office where the interview took place is video and audio recorded, which did not address this issue.
6I advised the parties that if applicant’s counsel had any objections with respect to Mr. Beyti’s evidence as he testified, she could object then, which did not occur.
Witness Statement for Paul Favento
7The applicant’s counsel advised she intended to call Mr. Favento as a witness. She was unable to speak with him in advance of the hearing and he appeared only under summons. She asked that she be permitted to treat him as a hostile witness if required, and respondent’s counsel did not object.
E-mail Sent from Mr. Favento to the Applicant’s Father
8An e-mail authored by Mr. Favento and sent to the applicant’s father was introduced as an Exhibit to this proceeding. At the outset of the hearing, the parties agreed the applicant’s father did not need to be a witness to testify about this e-mail and it was introduced as an Exhibit on consent.
Amendment to the Respondent’s Name
9In the Application, the applicant named the respondent incorrectly. When the respondent filed its Response, it indicated it was a corporation but did not provide its full legal name.
10Because the issue was not addressed at the hearing, prior to issuing this Decision, I issued a Case Assessment Direction, dated July 27, 2017, directing the respondent to provide to the Tribunal and to the applicant its proper legal name by no later than July 31, 2017. It failed to comply, but applicant’s counsel provided the result of its corporate name search.
11I have amended the title of proceedings to reflect the respondent’s proper legal name.
evidence
12It is not disputed by the parties that the applicant was in her high school’s co-op program (“co-op”), and that part of a co-op is to gain hands-on work experience. For that reason, the applicant was seeking an employer that would give her that work experience. The applicant’s co-op placement was to take place between mid-September 2015 and the end of January 2016.
13The applicant’s first choice for her placement was auto mechanics. Her high school did not have any auto mechanic courses, but the applicant had taken two construction courses in which she had done carpentry and some electrical work.
14Mr. Favento was a teacher at the applicant’s high school who found co-op placements for students. Mr. Favento knew his colleague had arranged a co-op placement for a student at the respondent before and therefore he arranged for the applicant to have her placement there. He testified he arranged an interview for the applicant with Mr. Beyti, who was the owner of the respondent business. He expected the main focus of the co-op placement would be auto body work, but agreed that clerical and cleaning work might form part of the co-op placement.
15The applicant testified the interview is intended to be informal and is mainly an opportunity for the student to find out the employer’s expectations.
16The applicant testified that before she went to the interview with Mr. Beyti, Mr. Favento told her two other students had done their co-op placements there, and therefore the applicant thought there would be no issue. She thought her placement would involve watching and learning, and perhaps a bit of hands-on work.
17The applicant’s interview was scheduled for September 16, 2015. Mr. Favento told the applicant her interview was with Mr. Beyti, who was the owner of the respondent.
18She prepared for the interview by being ready to answer basic questions like why she was there, what her interest in the co-op placement was and what prior courses she had done, as well as being ready to ask Mr. Beyti what his expectations of her would be. The applicant brought her curriculum vitae (“c.v.”) with her.
19When the applicant arrived, an employee went and got Mr. Beyti. The applicant testified when Mr. Beyti came in, he was very abrupt, threw her c.v. on the table and asked her what she wanted to know. She told him she did not have prior experience because her school did not offer auto body. When he repeated this, she repeated that while she did not have prior experience she had been taking all the technical courses available at her high school, and had a strong interest in auto body. She explained this would be a good opportunity for her to get experience.
20The applicant testified that Mr. Beyti responded that his guys were very busy and did not have time to tell her what to do all the time. She said she was not sure how to respond so did not say anything. She testified Mr. Beyti then asked her if she even liked cars because he loved them. She told Mr. Beyti she did. She testified she found it condescending to be asked if she liked cars because it should have been obvious given that she wanted a co-op placement at the respondent.
21She testified Mr. Beyti then asked her if she really wanted to get her hands dirty because his shop was dirty. She told him she did. She testified she does not think a male candidate would have been asked such questions.
22The applicant testified Mr. Beyti then offered her clerical work, including filing, answering phones and cleaning the shop. She told him it was not why she was there. She testified he then offered each of these tasks to her individually. First, he offered her filing work. When she declined, he told her she could answer phones. When she declined that, he told her he could not help her.
23The applicant testified she did not think a male candidate would have been told his tasks would include filing, answering phones and doing cleaning. She testified Mr. Favento had told her that the other two co-op students who had done their placements there had worked with cars.
24The applicant testified while she would not have any problem cleaning up her own mess, she did not want to be cleaning up after others, and it was not why she went for an interview. She also testified she understood there would be some paperwork because it was part of the job, but there would have had to be a balance.
25The applicant disputed the respondent’s lawyer’s suggestion that she was denied a placement at the respondent because of her lack of experience. The respondent’s lawyer also asked if she knew there was a difference between auto body and auto mechanics, given that she was interested in auto mechanics and this was an auto body shop. She testified she did not know that, and that Mr. Favento set up the co-op placement so she could gain experience. She testified she believed Mr. Beyti knew before her interview that she did not have any prior experience.
26The applicant testified the whole discussion with Mr. Beyti took between three and five minutes. The applicant then got up and when she went to shake his hand, Mr. Beyti turned around, barely took any notice of her, shook her hand and left.
27The applicant testified she was upset and crying when she left the respondent business. She called her mother. She felt belittled, embarrassed and sad because she really wanted the placement and felt she was denied because of her gender.
28The applicant testified her interview took place on a Thursday and her placement was to begin Monday. She did not go to her co-op class on Friday because she was embarrassed by what happened, and did not want to have to face people asking her how it went and whether she got the placement. Because of what happened at the respondent, the applicant found an alternate co-op placement with her uncle, a general contractor, and did not start until Tuesday.
29As a result of this experience, the applicant no longer wants to go into the skilled trades. She testified this damaged her dignity and self-esteem. She felt perhaps this was somehow her fault, and that she should not go into this trade. She felt embarrassed that this happened to her.
30The applicant testified if a student does a co-op in Grade 11 and does well, the student can then take a 4-credit class in Grade 12 at Fanshawe College that is equal to a level 1 apprentice for free. Otherwise, a student has to apply and get in based on her marks, and it costs between $6,000 and $8,000.
31Mr. Favento testified that after the applicant’s interview, he spoke to the applicant’s mother and also briefly to the applicant. He explained the school wanted to find the applicant another placement. Instead, the applicant found the alternate placement with her uncle because she did not want to pursue another at an auto body shop. He agreed that although the applicant did not pursue another auto body placement, the placement she found showed she had a continued interest in the trades.
32Mr. Beyti for his part testified that he wanted to help the applicant with a co-op placement because he knew the applicant went to the same school as his son. He testified he knew this from the applicant’s c.v. However, on cross-examination he agreed he did not have the applicant’s c.v. until she arrived for the interview, and the only contact he had before the interview was the call from Mr. Favento.
33Mr. Beyti testified he thought perhaps the applicant misunderstood him at the interview because of his English. He testified when she came in he recalled only that she was coming from the high school. He testified she asked him about the duties at the shop and he mentioned cleaning was one of them because a car has to be cleaned before it is painted. He testified she responded she was not there to clean, and he then told her he did not have anything for her. He admitted he told the applicant she could be a secretarial co-op student. He testified he told her this because they were looking for someone for the office as well, but he guessed she was not there for that reason.
34Mr. Beyti testified he was willing to train the applicant in the garage and that job involved a lot of cleaning and paperwork, but he could not explain why his Response said he was not looking for someone for the body shop but only to do office work.
35Mr. Beyti further testified he told the applicant he had hired co-op students for his other locations, but had not had them at this location before. He could not explain why his Response said he had had two male co-op students prior to this.
36Mr. Beyti also testified he had female co-op students in the past, but agreed he did not mention this in his Response, although his Response specifically mentioned having male co-op students in the past. He explained he did not mention this in the Response because it was not important as this was not about sexism. He testified he had had many co-op students in the past, both male and female. To prove his point, Mr. Beyti disclosed as part of his disclosure obligations in this proceeding a photograph of five people that included two males, two females and a person he testified was an instructor. He testified one of the females in the photo was a co-op student. He further testified he prefers to hire female co-op students because they have more patience and are more detailed.
37Mr. Beyti stated that all five of the people in the photo clean and that office and garage work are one and the same. However, when asked which of the people in the photo do the clerical work, he advised it was the two females, and that they also clean the shop, and the three males do the body work. When he was pressed further, he then testified that the female co-op student is his painter.
legal principles
38Sections 5 and 9 of the Code state in part:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of […] sex […]
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
decision and analysis
39The Code prohibits discrimination in employment on the basis of sex. The onus is on the applicant to establish on a balance of probabilities that what she experienced when she went for her interview is linked to her sex. 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.
40The Court of Appeal in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 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.
41For the reasons that follow, because of the comments Mr. Beyti made to the applicant and because he denied her a co-op placement in the trades by offering her only clerical work, I find the respondent discriminated against the applicant when she attended for her interview in anticipation of obtaining a co-op placement.
42When 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, [1952] 2 D.L.R. 353 (“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.
43I did not find Mr. Beyti credible. His evidence differed from what was in the Response, and also shifted when he was pressed. For example, the first time Mr. Beyti said anything about having a female co-op student was during his testimony. In addition, although he tried to paint his shop as one in which everyone had to clean and do paperwork, the fact is that when asked which of his employees did the clerical work and which did the body work, he admitted the women did the clerical work while the men did the body work. The only exception to this was that for the first time at the hearing Mr. Beyti said he had a female co-op student who was his painter.
44Mr. Beyti’s testimony also differed from his Response because he testified he was willing to train the applicant in his garage but the job involved a lot of cleaning and paperwork, yet his Response said he was not looking for someone for the body shop but was looking for someone to do office work.
45The applicant’s evidence on the other hand was forthright and credible. She was not shaken on cross-examination. I accept her evidence, and I find that the applicant’s sex was at least part of the reason that Mr. Beyti did not offer her a co-op placement in his body shop.
46First, Mr. Beyti did not deny that one of the first things he asked the applicant was if she loved cars and whether she wanted to get her hands dirty. These statements are indicative of a discriminatory attitude toward the applicant. It is unlikely Mr. Beyti would have asked a male co-op student these questions, particularly the question about getting his hands dirty.
47Mr. Beyti then offered the applicant administrative work, which traditionally has been considered women’s work. In fact, this work is performed by the two females who work at the respondent’s body shop. When the applicant said that is not why she was there, he told her he had nothing for her.
48Even if Mr. Beyti knew the applicant’s name before the interview, the evidence was clear that Mr. Beyti conducted the interview with her with the sole intention of offering her only clerical work, despite the fact that he knew from Mr. Favento that she was looking for a placement because she had an interest in the trades. As such, I find the respondent discriminated against the applicant because of the comments Mr. Beyti made to the applicant and because he denied her a co-op placement in the trades by offering her only clerical work.
49Section 46.3 (1) of the Code states:
For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
50As a result of section 46.3(1), the corporation is vicariously liable for Mr. Beyti’s acts and the resulting monetary remedy, below.
remedy
51Section 45.2(1) of the Code sets out the Tribunal’s remedial authority:
45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
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.
45.2(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.
Monetary Compensation
52The applicant testified she was upset, shaken up, caught off guard and embarrassed. She had been excited about the co-op, but then decided not to pursue this trade. The applicant’s lawyer submitted the applicant had requested a remedy of $15,000 for injury to dignity, feelings and self-respect, as well as a remedy equivalent to the tuition for the apprenticeship program she otherwise would have been able to do for free. Because she no longer intends to do the program, the applicant’s lawyer submitted that her request for an award for injury to dignity, feelings and self-respect be increased to $25,000 because of the profound impact this had on the applicant.
53The respondent’s lawyer submitted this Application was engineered by the applicant’s mother and never would have happened if she had attended the interview with the applicant. He submitted it seemed the applicant’s mother was waiting for this to happen and instead of calling him after the interview to ask if what the applicant said was really what happened, the applicant’s mother called the applicant’s school and accused Mr. Beyti of sexism. He made no submissions with respect to the quantum of the request for injury to dignity, feelings and self-respect.
54It is a difficult, but necessary, exercise to quantify the applicant’s intangible loss. In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal stated at paras. 51-54:
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 over the two years since the new damages provision took effect 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. …
…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.
55In Sanford v. Koop, 2005 HRTO 53, the Tribunal listed the factors to be considered in assessing an appropriate award for injury to dignity which include:
humiliation experienced
hurt feelings experienced
loss of self-respect
loss of dignity
loss of self-esteem
loss of confidence
experience of victimization
vulnerability
seriousness, frequency and duration of the offensive treatment.
56The applicant provided some cases in which damages for injury to dignity, feelings and self-respect (“general damages”) have been awarded in similar cases, including Whale v. Keele North Recycling, 2011 HRTO 1724, in which an applicant who lost her job after two days partly because she was a woman was awarded $10,000; Hartling v. Timmins Board of Police Commissioners (1981), 1981 CanLII 4305 (ON HRT), 2 C.H.R.R. D/487, in which a woman who was not hired as a police constable because of her sex was awarded $3,000; and Cunningham v. Royal Canadian Legion, Branch 594 (1993), 1993 CanLII 16503 (ON HRT), 20 C.H.R.R. D/239 (Ont. Bd. Inq.), in which a woman who was denied a promotion because of her sex was awarded $5,000. I note that the most recent of these cases is from six years ago, and the other two are from 36 and 24 years ago.
57In this particular case, I have taken into consideration the factors unique to the applicant, including that she was asked questions that would not have been asked of a male co-op student; felt embarrassed in front of her classmates, although she did not testify with respect to whether there was any adverse reaction from them, and she testified she did not go to school the day after the interview so as to avoid their questions; felt a loss of dignity and some damage to her self-esteem; did not get to do a co-op placement in an area in which she was interested; and has decided not to go into the trades at least in part because of this experience. I also have considered that this was to be a short-term placement.
58I find, considering the cases and the factors cited above, that an appropriate sum for the applicant’s injury to dignity, feelings and self-respect is $7,000.
Non-Monetary Remedy
59The applicant did not request a non-monetary remedy, but pursuant to section 45.2(1)3 of the Code, above at paragraph 51, I can make an order to promote compliance with the Code. I can make this order even if not requested, pursuant to section 45.2(2)(b), as set out in paragraph 51, above.
60As such, I order that the owner and manager of the respondent, Mr. Beyti, take the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101), and provide the applicant with written confirmation of having done so within 30 days of the date of this decision, including a print out of the completion certificate available at the end of the online training.
order
61I order as follows:
a. Within 30 days of the date of this Decision, the respondent shall pay the applicant $7,000.00 as monetary compensation for injury to dignity, feelings and self-respect within 30 days of the date of this decision.
b. Pre-judgment interest is payable on the monetary payment from the date of the Application to the date of this Decision, in accordance with s. 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.
c. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision in accordance with s. 129 of the Courts of Justice Act.
d. As owner and manager of the respondent, Andy Beyti shall take the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101), and provide the applicant with written confirmation of having done so within 30 days of the date of this decision, including a print out of the completion certificate available at the end of the online training.
Dated at Toronto, this 4th day of August, 2017.
“Signed by”
Dawn J. Kershaw
Vice-chair