HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lori Sellner Applicant
-and-
Canadian Cab Ltd. Respondent
DECISION
Adjudicator: Bruce Best Date: August 15, 2017 Citation: 2017 HRTO 1060 Indexed as: Sellner v. Canadian Cab Ltd.
APPEARANCES
Lori Sellner, Applicant Self-represented
Canadian Cab Ltd., Respondent Jesse Mendoza, Representative
Introduction
1This Application was filed under s.34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) alleging discrimination in employment based on pregnancy.
2The applicant was required to come to a meeting to address complaints brought against her. She requested accommodations related to her pregnancy to attend the meeting, and based on communication from the respondent understood that she was not, in fact, required to attend the meeting. The respondent then suspended her for not coming. Several days later, after a review of the applicant’s complaints history, she was terminated.
3For the reasons that follow, I find that the applicant’s pregnancy, and in particular her accommodation request, was a factor in her being suspended from work for failure to attend the disciplinary meeting, and that her suspension was therefore discriminatory.
4The decision to terminate her was made on April 7, 2016 directly as a result of the discriminatory suspension. I also find that the discriminatory suspension was a factor in the decision to terminate, and her termination was therefore also contrary to the Code.
Procedural issues
5Prior to the hearing, the Tribunal had not received documents or witness statements from either of the parties as required under Rules 16.2, 16.3 and 17 of the Tribunal’s Rules of Procedure. I issued a Case Assessment Direction (“CAD”) requiring the parties to comply with the above Rules.
6I addressed the issue of production and witness statements at the outset of the hearing. It appeared that the parties had exchanged a number of documents, but that not all documents had been filed with the Tribunal. It also became apparent during the parties’ testimony that there were, on both sides, a number of other documents that had not been filed or disclosed to the other parties, though neither party took issue with the late disclosure. With respect to certain documents provided by the respondent at the hearing, I did, however, give the applicant time to review the documents and to indicate whether she wished to present any further evidence. The applicant filed submissions respecting the documents, but did not indicate she wished to present further evidence. I have considered the documents, and have taken her submissions into account in reaching my decisions in this case.
7I heard evidence from the applicant and from Jesse Mendoza. Mr. Mendoza is a board member and the secretary/treasurer of the respondent, and was closely involved in the incidents giving rise to this matter. He also acted as the respondent’s representative at the hearing.
Background
8The respondent is a dispatching service for approximately 50 independent taxi owners, who are also its shareholders. In addition to dispatching, it also recruits, screens, and approves drivers. The respondent is also responsible for addressing complaints about drivers, and for discipline issues. The respondent does not, however, employ the drivers, who are rather direct employees of the taxi owners.
9The applicant had been on the respondent’s roster of approved drivers since 2009. There was no dispute that, though not an employee of the respondent at any of the relevant times, the allegations raised were “with respect to employment” and fell within the scope of s. 5 of the Code.
April 2016 Complaint and Discipline Meeting
10On April 3, 2016, the respondent’s dispatcher filed a complaint against the applicant, relating to a dispute that had been ongoing for years about how loud the applicant was on the radio. The dispute had, at times over the years, escalated into arguments between the two. Most of the issues raised by the dispatcher were general claims of disputes or arguments between him and the applicant. The only recent incident raised, which presumably triggered the complaint, was that on April 2, when the dispatcher asked her to speak more quietly, she yelled back “well you should turn down your radio”.
11Mr. Mendoza testified that he was the author of the respondent’s procedure for addressing complaints, which had been in place since 2004. The process was straightforward, and included an oral hearing to address the dispute. The procedure was as follows:
Effective immediately, upon resolution by the Board of Directors, the following rules shall apply to all complaints.
All complaints must be in writing
The complainant must appear for the hearing
The accused must appear for the hearing
Failure to appear by the complainant will result in the charges being dropped.
Failure to appear by the accused will not prevent the complaint from being dealt with.
Two- (2) days notice of the hearing will be issued to both parties involved.
It is the Board’s intention to apply the rules and penalties to everyone equally, based solely of the facts presented.
12The vice president of the respondent’s board of directors, Susan Bos, was the person primarily responsible for issues related to individual drivers, including complaints and discipline. After receiving the complaint on April 3, Ms. Bos sent a text message to both the dispatcher and the applicant stating:
Please make yourself available to the BOD Tuesday April 5 4:45 pm
13The applicant followed up asking what the complaint was about, and where the meeting would take place. Ms. Bos responded to the applicant’s text and advised the complaint was about her “[d]isruptive, loud argumentative, and aggressive attitude and behavior”, and said the meeting would be at the respondent’s office. The respondent’s office is on the second floor, and there is no elevator.
14The applicant was 23 weeks pregnant at the time. As she had a high-risk pregnancy, she had earlier provided the respondent with medical documentation placing her on light duties, which included that she was not required to assist passengers with groceries or other tasks that would require her to overly exert herself. Given her restrictions, the applicant responded to Ms. Bos:
Btw. I am absolutely not climbing those deadly stairs
15The text message exchange between Ms. Bos (“Su”) and the applicant (“Lori”) on April 3 was as follows:
Su
Please make yourself available to the BOD Tuesday April 5 4:45 pm to deal with complaint
Apr 3, 2016 12:28 PM
Lori
Complaint about what?
Apr 3, 2016 2:29 PM
Su
Disruptive, loud argumentative, and aggressive attitude and behavior
Apr 3, 2016 2:43 PM
Lori
Ok. Where?
Apr 3, 2016 2:43 PM
Su
Office on Tues 445pm
Apr 3, 2016 2:45 PM
Lori
I have a right to know before i walk in there
Apr 3, 2016 2:45 PM
Lori
Btw. I am absolutely not climbing those deadly stairs
Apr 3, 2016 2:55 PM
16Mr. Mendoza testified that he was aware that the applicant was on light duties, and to accommodate the applicant he arranged for space in a neighbouring business on the ground floor of the building so that the Board could meet with her without requiring her to climb the stairs.
17On April 5, 2016 at 1:19pm the applicant sent a text to Ms. Bos stating:
What is happening wth this meeting today
18There was a dispute with respect to exactly what communication there was between the applicant and Ms. Bos following the above text message. The respondent did not call Ms. Bos as a witness. The respondent submitted a letter signed by Ms. Bos, which read as follows:
[O]n Tuesday, April 5, 2016, I was again in communication with Ms. Sellner by both text and by phone. I informed her by text that she would not have to climb the stairs to our offices. By phone, I also asked her to attend to our offices for the hearing. Our secretary/treasurer had arranged to use a private ground floor office next door at 82 McDonelI St.
Company management waited for Ms. Sellner to comply with our request to attend for her hearing, having already assured her that she would not have to climb any stairs. She did not comply with our request.
19Mr. Mendoza testified that he was at the board meeting and heard Ms. Bos speaking on the phone with the applicant. He testified that he heard Ms. Bos say “you don’t have to climb up stairs, just come to the office.” He further testified that he then told Ms. Bos to confirm with the applicant by text that she did not have to come upstairs.
20Ms. Bos sent a text message to the applicant at approximately 5:09pm. The texts, according to the applicant’s version, read as follows:
Su
You don’t have to come upstairs, given what you said. The BOD wi
Apr 5, 2016 5:09 PM
Lori
Apr 5, 2016 5:10 PM
Su
The bod will get back to you
Apr 5, 2016 5:10 PM
Lori
OK
Apr 5, 2016 5:10 PM
21The version from Ms. Bos’ phone was in a different order, with the middle two messages reversed, and the times were two minutes later. These differences appear to be simply due to technical issues respecting the transmission of text messages and the different phones used, and in my view nothing turns on this discrepancy. The messages themselves were otherwise identical.
22The applicant testified, contrary to Mr. Mendoza’s evidence, that Ms. Bos had not told her over the phone to come to the office. The applicant testified that she had been waiting to hear back from Ms. Bos with respect to the meeting, and how they were going to address her accommodation request. She testified that when she received the text message stating “[t]he bod will get back to you” at approximately 5:10pm, she understood that she was not expected to come to the office. She immediately answered “OK”. She testified that she received no further communication from the Board that evening, and that she had turned her phone off sometime between 9-10pm, when she went to bed.
23Mr. Mendoza testified that the board members were, however, still expecting the applicant to come. As she had not shown up by 6:30pm on April 5, he typed up a suspension letter, and left it with the dispatcher. The suspension letter, signed by Ms. Bos, stated:
Today, you were invited to come upstairs to our company offices to address a complaint filed against you. You indicated an unwillingness to attend without first being told what the issue was about. You were informed by text communication with the undersigned what the nature of the complaint was; you declined to attend.
Your refusal to attend a disciplinary hearing by the Board is viewed as insubordination. As such, you are suspended from participating in our drivers’ pool until further notice.
24Mr. Mendoza also testified that Ms. Bos sent a text message to the applicant at some point between his writing the above letter and the conclusion of the board meeting approximately an hour later. The respondent provided a copy of the text from Ms. Bos’ phone, which read “The BOD’s decision has been made and a letter is in the office for you to pick up”. Though each of the other text messages on the copy reproduced from Ms. Bos’ phone indicated when the message was sent, for this particular message the time and date were cut off. Mr. Mendoza testified that he believed the message was sent at some point between 6:30pm, when the suspension letter was left with the dispatcher, and 7:22pm, when he typed up the minutes for the board meeting. The minutes respecting the complaint against the applicant read:
Lori Boddy Sellner refused to come to the office to address complaints against her, this after she was informed of the nature of the complaint and being informed of the fact that she was not required to climb the stairs to our second floor offices. The Board decided to suspend her from the drivers’ pool until her file could be reviewed.
25The following morning the applicant woke up at approximately 4am for her shift. When she turned on her phone, she received the message from Ms. Bos. The applicant also received a text message from the taxi owner she was driving for, which indicated he had been told that she was not permitted to drive for him until she had spoken with the board.
26The applicant sent an email on the morning of April 6 to the respondent’s main email, in response to the suspension letter, which read as follows:
I acknowledge and have acknowledged the meeting scheduled for April 4 [sic], 2016 at 4:45 pm. I expressed to Su Bos my concerns regarding the location for the meeting. Due to the fact that I am in a high risk pregnancy I stated I am unable to climb an abundant amount of steep stairs.
I did not state I wouldn’t come to the meeting. I asked to be provided another place to hold the meeting due to the inaccessibility of your location.
I am now being told that I have been pulled off the road because I refused to attend the meeting. I feel that I am being discriminated against because of my pregnancy. This is also affecting me directly financially. If a note is needed I can provide that. I am following up from a hospital visit with my Dr today.
I ask that I be allowed to continue to work until a safer location for me to access is provided.
27She claims she also phoned board members and sent them texts. No one responded. Mr. Mendoza testified that this was at his direction, as he did not want to have the board members get into arguments with the applicant respecting her suspension.
28Mr. Mendoza testified that he had not personally received any texts or phone calls from the applicant, and that he had not received the above email. He also testified that if the applicant had contacted him between April 5th and 7th, he would have agreed to hold another meeting to address the complaint against her. He also testified that he decided that the board should review the applicant’s file right away because she was suspended, and that he felt that as such the issue could not be “left dangling.”
29Mr. Mendoza indicated that he and Ms. Bos then reviewed the complaint from the dispatcher, and also reviewed the applicant’s complaints history. He testified that they decided that she had had numerous opportunities to correct her behaviour, and they then made the decision to remove her from the driver's pool effective immediately. The termination letter, dated April 7, 2016, stated:
The Board of Directors has completed a review of your file.
Over the years, we find that there have been quite a few complaints against you. The nature of all these complaints seem to indicate that you have issues with your temper, resulting in your yelling at our dispatch and phone personnel on the air and within our premises. You have displayed the same unacceptable behaviour when dealing with our customers while on duty.
On one occasion, the same behaviour was displayed at a coffee shop employee, while you were driving one of the taxicabs bearing our company name and colors.
These incidents have all been brought to your attention and you have been given quite a few opportunities to correct this behaviour, which has cast a bad light on our company. Further complaints indicate that you have not been able to correct this behaviour.
Therefore, we are permanently removing your name from the approved list of drivers eligible to drive for our shareholders, effective immediately.
We wish you the best in your future endeavors.
30As noted, at the hearing the respondent also provided a number of documents relating to some of the complaints made against the applicant referenced in the termination letter. In her post-hearing submissions respecting these documents, the applicant argued that other drivers had had similar complaints against them, and that such complaints did not justify termination. She also took the position that, had she in fact come to the meeting she believed the matter would have been otherwise resolved, that the respondent would not have reviewed her previous complaints, and that therefore she would not have been terminated.
Impact
31The applicant also provided evidence of the impact on her and her family of the suspension and termination. The applicant, as noted, was pregnant at the time, and was intending to begin her maternity leave at the end of June 2016. She testified that because she was terminated on April 7, 2016, she was short approximately 120 hours of the 600 hours required to be eligible for Employment Insurance (“EI”) maternity and parental benefits. She would have become eligible for EI if she had worked another three weeks.
32The applicant also indicated that she was placed on bed rest by her physician a month after the above incidents. The applicant attributes this to the stress of the events of early April 2016. There was, however, no medical evidence provided to support this claim. The applicant also indicated that prior to the events of April 5 she had had hospital visits and other concerns related to her high-risk pregnancy.
33The applicant testified that because of the financial hardship of losing her maternity and parental leave benefits, she had to return to work in December 2016, though if receiving EI she would have taken the full 12 month leave.
Findings and Analysis
Suspension
34The evidence respecting the communication between the applicant and the respondent on April 5 came from several sources; the testimony of the applicant and Mr. Mendoza, and various documents such as text messages, the minutes of the board meeting, and the suspension letter. Though there was also the letter from Ms. Bos, given that the evidence was disputed, and that she did not testify nor was not made available for cross examination, I did not give the letter any weight.
35I specifically indicated at the hearing my concern that Ms. Bos did not testify, given her central role in the dispute. Mr. Mendoza confirmed that the respondent did not wish to call her as a witness.
36It is not disputed that the applicant requested, due to her pregnancy, an accommodation that she not be required to climb the stairs to the respondent’s office for the April 5 meeting. I also accept that Mr. Mendoza had made arrangements for a meeting room on the ground floor. The respondent did not claim, however, that the fact that such arrangements had been made were specifically communicated to the applicant.
37What the respondent does claim is that there was a phone conversation between Ms. Bos and the applicant, where Ms. Bos had told the applicant she was not required to climb the stairs, but was still required to come to the office. This was followed up with the text message of 5:10pm reproduced in paragraph [20], above. The respondent further claims, as set out above, that the applicant nonetheless refused to come to the meeting.
38The applicant acknowledges that the respondent agreed that she did not have to come upstairs. She disputes, however, that she was also told to still come to the office, or that she refused to come. She testified that she was waiting in Guelph for instructions from the respondent on how the meeting would proceed.
39The respondent’s evidence that Ms. Bos told her to come is not supported by Ms. Bos’ text message of 5:10pm, which stated “the bod will get back to you.” The clear implication of that message was that there would be further contact with the applicant on how they would proceed. The applicant’s interpretation that they did not expect her to come at that time was entirely reasonable.
40There is no direct evidence supporting the respondent’s claim that the applicant refused to come to the meeting after being told she would not have to climb the stairs. If she had in fact then refused to come, the only person who would have first-hand knowledge of that was Ms. Bos, who, as noted, did not testify.
41The only evidence of the board ‘getting back’ to the applicant on April 5 was Mr. Mendoza’s testimony that Ms. Bos sent the subsequent text message respecting the suspension letter sometime between 6:30 and 7:22pm. As noted, unlike all the other text messages put forward as evidence, which included the time the messages were sent or received, the time stamp of this particular text message was, inexplicably, cut off. The applicant testified that her phone would have been on until she went to bed, sometime between 9-10pm. The applicant’s copy of the text messages showed she did not receive that message until 4:04am the following morning, which would be consistent with Ms. Bos’ message being sent sometime after the applicant turned her phone off the night before. Other than Mr. Mendoza’s evidence of when Ms. Bos sent the message, which is hearsay, there was nothing to support the claim that the applicant would have received any further communication from the board the evening of April 5. The respondent suggested that the applicant may have turned her phone off earlier, though this is simply conjecture.
42In any case, even if the message was sent that evening as claimed by the respondent, the board clearly did not “get back” to the applicant about arrangements for her to come to the meeting. They only got back to her to tell her she had been suspended for insubordination for not attending the meeting.
43The applicant was waiting to hear back from the respondent to advise her on how they were going to proceed with the meeting in light of her accommodation request. Given the communication she received, she quite reasonably understood that she was not expected to go to the office. Her email to the board the following day confirmed that she was expecting to hear from the board on what arrangements they were making to meet with her.
44I find that, given the communications between the parties, it was reasonable for the applicant to have not attended the meeting on April 5, 2016.
45In Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (“Stewart”), the Supreme Court addressed what the Chief Justice called, in the majority decision at para. 22, “the application of settled principles on workplace disability discrimination to a particular fact situation.” Gascon J., in dissent, provided considerably more detail respecting those principles. Though the majority did not agree with Gascon J.’s conclusions and the application of the principles to the facts of that case, there was a consensus on the principles themselves. Gascon J. summarized the prima facie test as follows, at para. 69:
It is undisputed that the basic test for prima facie discrimination involves three steps, namely, (1) the complainant having a protected ground under the relevant human rights legislation (which I will call a “ground”, here drug dependence); (2) the complainant suffering disadvantage (which I will call “harm”, here Mr. Stewart’s termination); and (3) the ground being “a factor” in the complainant’s harm (which I will call “contribution”): Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789 [“Bombardier”], at para. 35; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 [“Moore”], at para. 33.
46The Chief Justice also noted in the majority judgment in Stewart, at para. 24, citing Bombardier at para. 40, that discriminatory intent on behalf of a respondent is not required to demonstrate prima facie discrimination.
47In Bombardier, the Supreme Court addressed what it means for a prohibited ground to be a “factor” or “connection” necessary to establish discrimination. The Court clarified, at paras. 43-52, that a close relationship is not required, and that it is not necessary to establish a causal connection in order to prove discrimination. Rather, all that is necessary is to prove, on the balance of probabilities, that there is simply a connection between the prohibited ground and the adverse treatment, or, in the words of Gascon J. in Stewart, that the prohibited ground “contributed” to the adverse treatment.
48In Blakely v. Queen’s University, 2012 HRTO 1177 at para. 48, on the basis of the Court of Appeal decision Shaw v. Phipps, 2012 ONCA 155, the Tribunal held that where the evidence of both the applicant and the respondent has been heard, the question is simply whether, based on the evidence as a whole, the applicant has met his or her onus of proving that discrimination is more probable than the explanations offered by the respondent. This approach was later endorsed by the Court of Appeal in Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 80 (“Pieters”) at paras. 83-84, where the court stated:
After a fully contested case, the task of the tribunal is to decide the ultimate issue whether the respondent discriminated against the applicant. After the case is over, whether the applicant has established a prima facie case, an interim question, no longer matters. The question to be decided is whether the applicant has satisfied the legal burden of proof of establishing on a balance of probabilities that the discrimination has occurred.
Nevertheless, in cases that have been fully contested some human rights tribunals still employ the prima facie case framework as an analytical tool to structure and order their consideration of the evidence. Their analysis follows the order in which evidence is called even though all the evidence is in. Tribunals that use such an approach find it useful first to satisfy themselves that the record contains sufficient evidence to support a finding of discrimination before turning to consider evidence that might counter the inference of discrimination or establish a statutory defense.
49It is not necessary, in a case such as this where I have heard the evidence of both parties, to separately determine whether the applicant has established a prima facie case. The question rather, is whether, based on all the evidence, the applicant has been able to establish discrimination on the balance of probabilities. However, I do also agree that applying the prima facie framework is of assistance in determining whether there has been discrimination in this case.
50There is no dispute that the applicant met the first two parts of the prima facie test. First, she was pregnant and had restrictions related to her pregnancy. Second, she suffered adverse treatment, in that she was first suspended, then terminated from her employment. The issue is whether her pregnancy accommodation request contributed to her suspension, her termination, or both.
51The applicant was suspended for refusing to show up to the meeting. She did not show up to the meeting because, in response to her accommodation request, she was told the board would get back to her. She was effectively told to wait, which she did. She did not refuse to come after being told she did not have to climb the stairs. She was then suspended anyway for, in effect, following Ms. Bos’ instructions. These events, the discussions between the applicant and the respondent on April 5, were all in the context of how the applicant’s accommodation request was going to be addressed. She would never have ended up in the position she was in if she did not require and had not requested an accommodation. Because she was in that position, she ended up being suspended. This is a sufficient connection to find that the applicant has met the test to establish her suspension was prima facie discriminatory.
52Once a prima facie case of discrimination has been established, the evidentiary burden falls to the respondent to provide a rational and credible non-discriminatory explanation. See Pieters, at para 34. The respondent takes the position that they had met their obligations to accommodate the applicant by arranging space to meet with the applicant on the ground floor, and by telling her she did not have to climb the stairs.
53There is no evidence that the applicant ever indicated that she was refusing to come to the meeting after being told she would not have to climb the stairs. Though the respondent took steps to implement an appropriate accommodation, the last communication from the respondent to the applicant before the suspension was “the bod will get back to you”, not “come to the office.” It would have made no sense for her to come anyway, given that message. The respondent’s non-discriminatory explanation, that the applicant should have understood that she was supposed to come to the office despite the text message saying they would get back to her, is, in my view, neither rational nor credible.
54As the applicant has been able to establish a prima facie case of discrimination, and the respondent has not been able to provide a rational or credible non-discriminatory explanation, the decision to suspend the applicant on April 5, 2016 was, therefore, contrary to the Code.
Termination
55The next question is whether the termination of the applicant on April 7, 2016 was also discriminatory.
56The respondent’s evidence was that they decided to terminate her because of her complaints history, as set out in her termination letter. There was no indication that any of these complaints were related to her pregnancy, or any other Code ground, and the respondent took the position that the decision to terminate was unrelated to the applicant’s failure to show up at the meeting.
57Whether the respondents may have had non-Code reasons for the decision to terminate the applicant, however, is not the question. The question is whether her pregnancy-related accommodation request contributed to her termination on April 7, 2016.
58As noted in para [28] above, Mr. Mendoza testified that he decided to review the applicant’s file on April 7th because she was suspended. He also indicated at the hearing that if the applicant had contacted him he would have held another meeting to address the dispatcher’s complaint. He specifically testified that had he heard from Ms. Sellner between the 5th and 7th of April, “we wouldn’t be sitting here today.”
59Based on the evidence before me, I cannot conclude that the respondent would have terminated the applicant on April 7, 2016 but for the fact that she had been suspended for not coming to the meeting on April 5. The specific incident which led to the April 5 meeting was a complaint that the applicant had yelled at the dispatcher to “turn down the radio”. The earlier complaints against the applicant were, on their face, more serious, and she had not even been suspended for those incidents. Though the board may well have disciplined her if it found her interaction with the dispatcher was inappropriate, I cannot conclude on the evidence that she would have been suspended, let alone terminated, if she had actually come to the meeting.
60Based on the evidence before me, on the balance of probabilities, I find that had the applicant not been suspended for failing to attend the meeting on April 5, 2016, she would have continued working as a cab driver at least until she was medically unable to work in early May, 2016. The fact that she had been suspended, which as I have found was discriminatory, therefore contributed to the fact that she was terminated on April 7, 2016. The suspension and the termination were therefore discriminatory.
Remedies
61Section 45.2 (1) of the Code reads as follows:
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.
62The applicant provided evidence relating to her lost income, and with respect to the impact of the incidents on her and her family. The remedy is based on the damages flowing from her discriminatory suspension, and the timing of her termination.
63As noted in para [32] above, the applicant was on bed rest as of the first week of May 2016. The applicant claims that this was a result of the stress caused by the events of early April. However, in the absence of any medical evidence, I am unable to find that the applicant’s inability to work as of May 2016 was the result of her having been suspended or terminated.
64As such, I find that the applicant would, but for the discrimination, have continued working until May 5, 2016. If she had done so, she would have been eligible for EI maternity and parental benefits.
65It is well established that a loss of eligibility for EI maternity and parental benefits due to discriminatory actions are compensable. See Maciel v. Fashion Coiffures, 2009 HRTO 1804, at paras. 49-50, and Dodds v. 2008573 Inc. (Sharks Sports Pub), 2007 HRTO 17, at paras. 74 and 78.
66The applicant claimed that she earned approximately $120 per day, plus tips, which would vary depending on the day. Based on the evidence of the tips she may expect, I find that $150 per day is a reasonable amount to compensate her for the loss of income. I find that the applicant would have continued working from April 6 to May 5, 2016, or an additional 22 days, for a total of $3,300.
67The applicant claims that if she had obtained her 600 hours, she would have been eligible to receive up to 12 months of EI maternity and parental benefits. Maternity and parental leave benefits are calculated based on 55% of the individual’s insurable earnings. Based on her estimated earnings of $600/week, she would be entitled to $330 per week on this ground.
68As noted in paragraph [33] above, the applicant returned to work in December 2016, and her income level would have made her ineligible for EI after that date. The applicant’s due date for the birth of her child was August 3, 2016, which means that EI maternity benefits would have been payable, at the earliest, as of June 8, 2016. The applicant is, therefore, entitled to compensation equivalent to 26 weeks to compensate her for the loss of her EI maternity and pregnancy benefits, at $330 per week, for a total of $8,580.
Compensation for Injury to Dignity, Feelings and Self-respect
69In Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 (“Strudwick”), at paras. 52-77, the Court of Appeal adopted the principles set out by the Tribunal respecting the assessment of damages in Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at paras 52-54:
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: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
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 more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
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. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 (“Sanford”) at paras. 34-38.
70Strudwick set out, at para 62, some of the relevant factors noted in Sanford:
the immediate impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;
the ongoing impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;
the complainant’s vulnerability;
objections to the offensive conduct;
the respondent’s knowledge that the conduct was not only unwelcome but viewed as harassment or discrimination;
the degree of anxiety the conduct caused; and
the frequency and intensity of the conduct.
71Damages are determined based on the impact on the applicant, not the intention of the respondent. Even if the respondent genuinely believed the applicant had refused to come to the meeting, from the applicant’s perspective she was suspended after following the respondent’s instructions respecting her accommodation request. Deliberately or not, the applicant was given misleading information by the respondent, which was then relied on as the reason to suspend her.
72From an objective point of view, being disciplined for following instructions respecting how an accommodation request would be addressed clearly will have a negative impact.
73The applicant’s termination on April 7, 2016 meant that she was subsequently ineligibility for EI benefits, and would have no income once she went on her parental leave. The prospect of facing having a newborn with unexpectedly limited income would clearly have an impact on the applicant.
74I also take into account that the applicant had to go back to work some 6 months earlier than she would have had she been eligible for EI. The fact that she had to forgo that time with her new child as a result of the timing of the respondent’s decision to terminate her employment also clearly had a negative impact on the applicant, and is a factor which also favours a higher award under this heading.
75In the circumstances, I find that the $20,000 requested by the applicant is an appropriate amount to compensate her for injury to dignity, feelings, and self-respect.
Public Interest Remedy
76The applicant also sought an order requiring the respondent to received training in human rights issues.
77Given my finding that the decision of the respondent’s board of directors to discipline the applicant was discriminatory, I agree that it is appropriate that the board members receive training as requested.
78I order that the board members of the respondent take the eLearning module “Human Rights 101” found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca, and confirm with the applicant in writing that the training has been completed within 90 days of the date of this Decision.
Order
79The Tribunal orders as follows:
a. The respondent shall, within 30 days of the date of this decision, pay $3,300 to the applicant as compensation for her lost income from April 6 to May 5, 2016. Prejudgment interest is also payable on this amount at the rate of 0.8% from the mid-point of the two dates, 20 April 2016.
b. The respondent shall, within 30 days of the date of this decision, pay $8,580 to the applicant as compensation for lost EI maternity and parental benefits. Prejudgment interest is also payable on this amount at the rate of 0.8% from the mid-point of the two dates, 6 September 2016.
c. The respondent shall, also within 30 days of the date of this decision, pay a further $20,000 to the applicant as compensation for injury to dignity, feelings and self-respect.
d. Post-judgment interest shall be payable on the above amounts at the rate of 2.0% in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, commencing 30 days from the date of this Decision.
e. All board members of the respondent shall take the eLearning module “Human Rights 101” found on the Ontario Human Rights Commission’s website at www.ohrc.on.ca, and will confirm with the applicant in writing that the training has been completed within 90 days of the date of this Decision.
Dated at Toronto, this 15th day of August, 2017.
“Signed by”
Bruce Best
Vice-chair