HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Neha Puniani Applicant
-and-
Rakesh Majithia CA Professional Corporation, Rakesh Majithia and Rooms Furniture and Accessories Inc. Respondents
DECISION
Adjudicator: David Muir Date: October 10, 2017 Citation: 2017 HRTO 1335 Indexed as: Puniani v. Rakesh Majithia CA Professional Corporation
APPEARANCES
Neha Puniani, Applicant Brenda Culbert, Counsel
Rakesh Majithia CA Professional Corporation and Rakesh Majithia, Respondents Salma Shaikh, Counsel
Rooms Accessories and Furniture Inc., Respondent Gurinder Walia, Representative
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 hearing of this Application began on May 20, 2016 in Toronto. All parties participated in the first day of hearing. A second hearing date occurred on March 1, 2017 in Toronto. The respondent, Rooms Accessories and Furniture Inc. ("Rooms") did not attend this hearing day in circumstances described below. The hearing concluded on April 5, 2017 with Rooms in attendance.
3The respondents Rakesh Majithia CA Professional Corporation and Rakesh Majithia ("Majithia") were the applicant's employer. Rooms was a client of Majithia and where Majithia assigned the applicant to perform work at its premises.
4At the hearing I heard the evidence of the applicant, Rakesh Majithia and Gurinder Walia the principles of the two organizational respondents as well as T.S, M.J. and T.P., employees of Majithia.
5For the reasons that follow I find that the respondents jointly determined that the employment of the applicant would be terminated and that a factor in the timing of the termination of her employment was the fact that the applicant was pregnant and planning to take a parental leave in the near future. I also find that the applicant would likely have been dismissed in any event because her performance was not what the respondents, in particular Rooms, expected or required for its business. I also find that the applicant experienced discrimination from the individual respondent, Majithia, because of her sex when the individual respondent first learned that she was pregnant and the comments he made to the applicant at that time.
THE PROCEDURAL HISTORY
6The respondents all filed a Response (Form 2) to the Application. Majithia provided a substantive response to the allegations. It was Majithia's position that the applicant was hired solely to provide services to Rooms where she worked on site in Rooms facilities as a bookkeeper and that she was dismissed from employment for performance reasons.
7Rooms filed a Response but did not address the substance of the Application. It took the position that it was not the applicant's employer.
8Majithia was represented by counsel throughout. Rooms was initially represented by a paralegal that got off the record at the first day of hearing. At that point Rooms through its principal, Gurinder Walia, indicated that it had changed its position on the merits and that it intended to call two witnesses in support of its amended position.
9In the circumstances I directed, in a Case Assessment Direction ("CAD") issued on May 26, 2016, that Rooms must deliver and file detailed witness statements for its two proposed witnesses within 28 days of the CAD failing which it may not be entitled to lead evidence beyond the assertions made in the Response. Rooms did not comply with this direction.
10On February 22, 2017 Majithia sought an adjournment of the March 1, 2017 hearing date on the basis that it had been advised that Gurinder Walia had not received notice of the March 1, 2017 hearing date and was not available. Mr. Walia did not provide any submissions on this request to adjourn. The adjournment request was denied in Interim Decision, 2017 HRTO 249 dated February 27, 2017. The hearing proceeded as scheduled on March 1, 2017. No one from Rooms was present. However there was some indication that Rooms might wish to still participate in the hearing. It appears that because Rooms had failed to update the Tribunal with its current contact information, it had not been in receipt of any materials from the Tribunal subsequent to the first hearing day in May 2016.
11At a subsequent conference call in which all parties participated I directed that if Rooms intended to participate in the hearing and call witnesses it must file a Request for Order During Proceeding setting out an explanation for its conduct in this proceeding and seeking leave to call evidence. The applicant was given an opportunity to respond to this Request but did not do so. On the final day of hearing Mr. Walia attended the hearing, representing Rooms, and was permitted to give evidence. The second proposed witness was never identified and Rooms tendered no other evidence.
BACKGROUND
12The applicant was employed by Majithia from September 29 to December 12, 2014. The applicant is trained as an accountant but not certified or licenced in Canada. She is a relative new comer to Canada and has limited experience working in her field in this country.
13Mr. Majithia is the principle of the accounting firm. Mr. Walia, with an unidentified partner, were the principals of Rooms, which operated a retail furniture store.
14The central claim of the applicant is that she was dismissed from her employment in whole or in part because she became pregnant and would likely be taking a leave from her employment. The applicant alleges that no one raised any concerns with her about her performance. The applicant also alleges that she was harassed and discriminated against by Mr. Majithia when he first became aware that she was pregnant.
15It is fair to say that the applicant's position about who was responsible for the alleged discrimination with respect to her termination from employment changed as the hearing progressed in response primarily to Rooms' and Mr. Walia's change of position on the central question in the case.
16In final submissions the applicant took the following positions:
a. That all respondents were involved in the applicant's employment and its termination and share liability for the decision to dismiss her from employment;
b. That a factor in Mr. Walia's decision making was the fact that the applicant was pregnant and was planning to take a leave;
c. That Majithia was aware of this and took no steps in response to the discriminatory decision of Rooms;
d. That Majithia terminated the applicant's employment;
e. That Majithia harassed the applicant and discriminated against her when Mr. Majithia learned she was pregnant;
f. The Rooms and Majithia led the applicant to believe that she was being dismissed from her employment because she was pregnant and was planning to take a leave.
17Majithia denies the allegations. Majithia argued that they hired the applicant for the sole purpose of providing in house bookkeeping services to Rooms. It is agreed that the applicant worked on site at Rooms' offices. Majithia alleges that the applicant misrepresented her skills and experience in her resume. Majithia alleges that Rooms had concerns with the applicant's ability to do the job and alleges that the applicant was dismissed by Rooms for performance issues which were apparent before the applicant advised Majithia or Rooms that she was pregnant. Majithia alleges that on December 1, 2014 Rooms indicated that they no longer required the applicant's services effectively ending her employment, which in fact ended on December 12, 2014. Majithia asserted that Rooms' decision effectively ended the applicant's employment because Majithia had no other work for her to do.
18In its Response (Form 2) Rooms denied the allegations in the Application without any detailed response to them. It argued simply that it was not the applicant's employer. Rooms stated that on December 1, 2014 it "agreed" with Majithia that Rooms "does not need any individual from Majithia to work at their location." This remained Rooms' position until the first day of hearing when, as indicated, it took the position that the applicant did not have the skills it needed and it had already recruited her replacement. Despite various directions from the Tribunal, as discussed earlier, there was no concrete statement of Rooms' position until a Request was filed by Rooms on March 11, 2017 seeking leave to call evidence in the hearing.
19During the evidence of Mr. Walia he indicated that Rooms, which was described as a partnership, was no longer operating. At the conclusion of the hearing and in light of Mr. Walia's evidence, the applicant sought leave to file a Request for Order During Proceeding ("Request") seeking to add Mr. Walia as a respondent. The applicant was directed to file the Form 10 within 14 days of the hearing and did so. The proposed respondent responded.
20For reasons set out below the applicant's request to add Mr. Walia as a party is denied.
ANALYSIS AND DECISION
21As is almost always true with applications under the Code, the reliability and credibility of the parties' witnesses is critical to the outcome. In this Application, I have generally preferred the evidence of the applicant over that of the respondents' witnesses, in particular the evidence of Mr. Majithia and Mr. Walia. Given the issues in the Application, the applicant's evidence was largely confined to what she was told by the respondents and she was given conflicting information by the respondents. With that said, I accept her evidence as reliable and credible. Her evidence was presented in a coherent manner. She was able to recall events with some certainty and it was generally consistent with what limited documentation exists. The evidence of both Mr. Walia and Mr. Majithia on the other hand was unreliable. Neither was able to recall with any precision, certainty or detail when events happened or what was said in important interactions, which they claim would have taken place. There were far too many responses of "I don't recall" or "I don't know", from Mr. Majithia and Mr. Walia, in response to questions about the key issues to give the evidence of either witness much credit. For these reasons I have preferred the evidence of the applicant to that of Mr. Walia and Mr. Majithia and specifically when there was a conflict in the evidence.
22Mr. Majithia and Mr. Walia were acquainted with each other. Mr. Majithia learned that Mr. Walia required the services of a bookkeeper but had a particular price he was willing to pay for such services. Mr. Majithia offered to provide him bookkeeping services at the desired price point. To accomplish this he contacted the applicant whose resume Mr. Majithia had on file. He reviewed her resume and after a telephone interview and then face-to-face interview offered her employment. He directed her to one or more youth employment centres to register so that he, and the applicant, would have access to government programs to support youth and new immigrant employment programs.
23The applicant did so and was employed under a Youth Employment Program ("YEP") intended to assist young people gain entry to the labour market. Much, if not all, of the applicant's wages were covered under the program for the first three months of her employment – as it happened the entirety of her employment. Majithia also charged Rooms for her services an amount that appeared to Mr. Walia to be more than what the applicant was paid. Although not directly material to this dispute, when these facts became known to Mr. Walia they may have influenced some of the interactions with Mr. Majithia and the applicant as her employment was being terminated.
24Majithia took the position that the applicant was hired exclusively to provide services to Rooms, the implication being that if that work ended so did her employment with Majithia. The contract the applicant signed makes no reference to such a term and in fact states the opposite. It may have been Majithia's intention that the applicant would work exclusively for Rooms and that when that work ended so did her employment. However, that intention never found its way into the written contract of employment, which on its face states that it is the entire agreement. Accordingly, when Rooms informed Majithia that it no longer required the applicant's services, for whatever reason, Majithia had a decision to make. Majithia chose to end her employment as opposed to continuing her employment with other clients.
25The contract with the YEP provided that Majithia would train and supervise the applicant. The training appears to have been confined to a couple of hours of observation of one or Majithia's other employees. The applicant testified that she rarely saw Mr. Majithia and he did not provide her any supervision. Mr. Majithia did not dispute this except to say that the nature of the work did not require regular supervision. Mr. Walia testified that he did not feel that it was his role to train and supervise Majithia's employee. The applicant received little or no training and almost no supervision.
26The applicant worked on site at Rooms' offices. She worked on her own for the most part. She testified that Mr. Majithia attended at Rooms once a month to receive payment for her services from Rooms. The applicant testified that there were no performance reviews conducted with her. Mr. Majithia did not really dispute this evidence but tried to suggest that he provided more supervision and attended at Rooms more often. He was, however, unable to say when these visits occurred or what the purpose of any of them might have been.
27The applicant became pregnant. It became known in Rooms' offices by mid-October 2014 when other staff asked her and she confirmed that she was pregnant. She later determined that she was going to commence her leave about January 15, 2015. She did not formally advise Mr. Walia or Mr. Majithia, but Mr. Walia appears to have known that she was pregnant by mid-October along with the rest of his staff.
28In late November or early December 2014 Mr. Majithia attended Rooms to collect his fee for the applicant. The applicant testified it was her understanding, based on what transpired that day, that Mr. Walia and Mr. Majithia met at that time and Mr. Walia told Mr. Majithia that the applicant was pregnant.
29According to the applicant, after meeting with Mr. Walia, Mr. Majithia confronted her about her pregnancy in her work area where others might overhear. She testified that he was very angry and demanded to know why she had not told him about her pregnancy. The applicant testified that he began counting off the months on his fingers and demanded to know whether she had known that she was pregnant when he had interviewed her in August. The applicant testified that as he left her he said "we will see what needs to be done." She testified that she felt humiliated and threatened by this exchange. Given the manner in which the exchange ended, the applicant was uncertain as to whether she would continue working with Rooms or more generally with Majithia.
30Mr. Majithia denied being rude or shouting at her. He did not, however, directly deny the substance of the conversation. He claimed to be embarrassed at being unaware that his employee was pregnant – only learning about it from Mr. Walia. Given the problems described above concerning the content and manner in which Mr. Majithia testified, I prefer the applicant's version of this conversation over that of Mr. Majithia and I find that Mr. Majithia was in fact rude and shouted at the applicant.
31The applicant next heard from Mr. Majithia when he sent her a text message on December 5, 2014 asking if she had received his email. She indicated to him that she had received a pay stub but that was all. The applicant testified that he sent her another email with a letter of termination dated December 3, 2014 attached. The letter indicated that the applicant would be terminated effective December 10, 2014. The letter provided no reasons for her dismissal. The applicant testified that she asked Mr. Majithia on several occasions over the weekend of December 6 and 7, 2014 why she was being terminated without response.
32The applicant testified that she contacted Mr. Walia on December 5, 2014 following receipt of the letter terminating her employment. She testified that he told her that he and Mr. Majithia had met and decided to replace her because she was leaving soon and that Mr. Majithia had decided to terminate her employment.
33The applicant testified on December 7, 2014 she left a message with Mr. Majithia to the effect that it was illegal to file an employee who was pregnant and about to take a leave. She testified that he then responded. According to the applicant Mr. Majithia called her later that day and told her that she was being terminated because of poor performance. She challenged this assertion and told Mr. Majithia that this was not what Mr. Walia had said. Later that evening she called Mr. Walia and relayed what Mr. Majithia had told her. This conversation is recorded and in it Mr. Walia denies that she was being dismissed because of poor performance. I will return to this conversation below.
34The applicant's employment ended on December 12, 2014. Mr. Walia referred her to a colleague who gave the applicant a number of hours of work.
35The central assertion of the respondents at the hearing was that the applicant was dismissed from their employment solely because of poor performance. The evidence on this point from the respondents is very limited and unconvincing.
36The respondents asserted that the applicant was constantly on the phone with staff and the vendor of Quickbooks, the software the applicant was expected to use in her work. However the actual evidence fell far short of establishing that this was the case.
37There was limited evidence from two of Majithia's employees about telephone calls the applicant made to Majithia's employees that indicated to them that the applicant did not have the skills described in her resume. T.P. testified that there were two or three calls per week for a few weeks before she left the workplace for a period of time. M.P. who was a receptionist at the time of these events also testified that the applicant phoned her but her role was confined to referring the calls to T.P. She testified that she referred two or three calls to T.P. each week throughout the applicant's employment. This cannot be reliable evidence because T.P. was not in the workplace after the end of September 2014.
38T.S. the employee who the applicant observed for a couple of hours on the applicant's first day felt that her skills were not as set out in her resume. He testified that he felt that she had not used Quickbooks. He had no contact with the applicant after the first day.
39The applicant denied the suggestion that she was constantly on the phone with staff at Majithia's office. She acknowledges speaking with T.P. twice about some issue with her work duties and with M.J. once to enquire about who was in the office. This evidence is not inconsistent with the evidence of Majithia's employees in terms of their actual interactions with her. There was no evidence led that such calls were contrary to workplace practice or were prohibited.
40Beyond this evidence the respondents offered very little beyond vague and general assertions that the applicant's performance was not what they expected or required.
41There is almost no documentation of any concerns with the applicant's workplace performance, either contemporaneous or after the fact.
42The limited documentation that does exist is contained in records related to the YEP program.
43The respondents relied on three Monitor Visit Reports which were used by the YEP to monitor its' clients' performance. Majithia asserted that the applicant would have been aware of her performance problem because some of these issues were recorded in these documents. The applicant denied ever seeing a completed Monitor Visit Report although she acknowledged signing one or more blank forms. Majithia was unable to say whether the applicant would have ever seen these documents completed. I find that the applicant did not in fact ever see a completed Monitor Visit Report. The fact that these documents were never brought to her attention is not helpful to the respondents' case that the applicant was not a competent employee.
44An initial Monitor Visit Report dated September 9, 2014 indicates only that the applicant's performance at that stage was satisfactory. There is no indication on the report that the applicant did not have the requisite skills, nor did it highlight any performance issues.
45In a log of communication with Majithia that was apparently created by the YEP case worker dealing with the applicant, the following with respect to the applicant is noted on October 1, 2014:
Rakesh [Majithia] called to say that he has some concerns regarding Neha's [applicant] work. She appears to be very slow in learning the skills for the job. She does not appear to know as much as they thought she did when she started the job. They are needing to work with her much more than they thought and she does not seem to retain the information. She has some difficulty working with clients also, communicating with them and providing accurate information to them. She does not appear to understand what she needs to in order to work with the clients. Rakesh said that he would continue to work with her for a while and see if she starts to pick up information more quickly as the placement continues and will assess her again in a few weeks.
46Mr. Majithia testified that he would have been the source of the information in the YEP log for October 1, 2014 but does not specifically recall relaying it. He also asserted that he had no first-hand knowledge of the applicant's performance and the only basis for the comments would have been information provided by Mr. Walia, but again, could not specifically recall speaking with him about the applicant.
47These comments about the applicant's performance are also contained in a Monitor Visit Report dated October 1, 2014.
48The September 9, 2014 Monitor Visit Report is unsigned by either the applicant or the employer. The October 1, 2014 Monitor Visit Report is also unsigned by either the employer or the applicant.
49A final Visitor Monitor Report dated November 3, 2014 includes signatures of both the applicant and someone for the employer, but was only received by the YEP on December 19, 2014. This report is the only one that indicates significant concern with the applicant's performance. It is the only one of them that has the applicant's signature on it. The applicant denied seeing it completed and believes that it might be the blank document that she signed at or shortly after her hiring at Majithia's request.
50The applicant believes that this document was created after her dismissal to justify the termination of her employment. The applicant relies on the fact that although it is dated November 3, 2014 it was sent to the YEP long after that date and well after the applicant had been dismissed. In a YEP log entry dated December 19, 2014 it is recorded that on December 19, 2014 the YEP worker received the final invoice for the applicant's wages as well as a Monitor Visit Report which had been sent to Majithia to complete. The log entry continues:
The monitor stated that (the applicant) needs to improve her software skills to perform better. She also needs to develop additional inter-personal skills but Rakesh (Majithia) is hoping that this will come with experience. The monitor form is dated Nov. 3, 2014 and signed by (Majithia) and (the applicant) but not received by me until now... (Emphasis added)
51As indicated the applicant denies ever seeing these reports of her performance, although she acknowledges that she may have signed one that was blank.
52It is not clear who completed these reports but the first two were likely created by the YEP worker because both indicate that they are based on a telephone monitor and not a site visit. Consistent with this is the fact that the first two are in different handwriting than the last. There is no evidence about who completed the final Visitor Monitor Report.
53There is no documentation of any concerns with the applicant's performance between the October 1 Monitor Visit Report and corresponding log entry and the third Monitor Visit Report dated November 3, 2014, but received by the YEP on December 19, 2014. I accept the applicant's evidence that she did not see these completed documents and in fact was never told by anyone that her performance was deficient. The respondents did not provide any rational explanation for the delay associated with completing and transmitting the November 3, 2014 Monitor Visit Report. As such, given the failure to explain this discrepancy, the suspect timing of submitting the report and the self-serving nature of the content of the report, I also find that the November 3, 2014 Monitor Visit Report was created after the fact and was intended to support the decision to dismiss the applicant from employment.
54Mr. Walia's position and evidence changed during the hearing. Nonetheless, Mr. Walia's evidence of the applicant's performance deficiencies was similarly vague. He said the applicant was slow in performing some tasks and in responding to client queries. He provided no specific examples. He also noted that she always seemed to be on the phone when he tried to speak with her. However he also testified that he was often travelling and was away from the office a great deal.
55I do accept the respondents' evidence that there were some noted minor deficiencies in the applicant's performance as evidenced by the October 1, 2014 Monitor Visit Report. I also accept Majithia's evidence that the source of these comments must have been Mr. Walia because Mr. Majithia had no other basis for assessing the applicant's performance.
56The respondent Walia argued that his decision to dismiss the applicant was made before it was known she was pregnant and stated, in support of this argument, that it had already commenced a process to recruit and had in fact hired a new employee for the position. Again, beyond the assertion, there is almost no substance to this allegation or any evidence beyond its mere assertion to support it. It does appear to be non-controversial that the applicant did not formally advise either of Mr. Majithia or Mr. Walia that she was pregnant. It also appears likely that by mid-October Mr. Walia became aware of the fact because the applicant was becoming visibly pregnant. Beyond these facts, there is no evidence before me about when the applicant's replacement was recruited and when this person actually started working for the respondent. Mr. Walia did testify that he intended there to be a two-week overlap with the applicant but there is no evidence that this is what occurred. The evidence of Mr. Walia on this point does not assist in buttressing the reliability of this evidence. On the contrary, in a text message the applicant sent to Mr. Majithia on December 7, 2014, the applicant advised him that on December 5, 2014 Mr. Walia told her that he had someone to replace her on December 15, 2014. Mr. Majithia's contribution to this part of the narrative was to confirm that Mr. Walia told him he had recruited a replacement at the same time that he informed him that the applicant's services were no longer required – on or about December 1, 2014.
57In light of the foregoing, in my view, the evidence establishes that by mid-October 2014 Mr. Walia knew that the applicant was pregnant and would likely be taking a leave in the not too distant future. It is also clear that the months of December and January are a critical time in the business year for Rooms. However all of the surrounding circumstances, including the weakness of the respondents' evidence with respect to the timing of hiring replacement for the applicant lead me to the conclusion that the decision to find a replacement for the applicant was not made before Mr. Walia became aware that the applicant was pregnant or that that the decision was made solely because of her performance. Rather, I find that that a significant factor in the timing of the decision of Rooms was, as he said in the telephone conversation with the applicant, that it was not worth the time and trouble to train her at a critical time in the business year when she was leaving soon anyway. I have come to this conclusion for the following reasons.
58First, there is, as set out above, little substance to the claims of poor performance or the assertion that a replacement had been recruited before the applicant's pregnancy became apparent.
59Second, I have also considered the angry meeting between the applicant and Mr. Majithia when he learned from Mr. Walia that the applicant was pregnant. The applicant's evidence was that Mr. Majithia became extremely angry with her. She testified that he shouted at her in the workplace and that others would likely have heard. She testified that he counted the months on his fingers and demanded to know whether she knew she was pregnant when he had interviewed her. She testified that he left the meeting telling her "we will see what needs to be done." Mr. Majithia's reaction to the news and his treatment of the applicant during that meeting suggests two things. First, it is clear that the fact of the applicant's pregnancy was a point of discussion between Mr. Majithia and Mr. Walia in the context of her continuing relationship with the respondents. I note that Mr. Majithia learned that Mr. Walia wanted to dispense with the applicant's services at the same moment that he learned she is pregnant. Second, it establishes that Mr. Majithia was very unhappy about the pregnancy. His explanation of the disproportionate response to the news was unconvincing. In my view his response suggests as noted by the applicant that he was as upset with the applicant as it meant that he was losing the contract with Rooms.
60It is also agreed that the period December through January were very busy and critical to Room's business success. Rooms needed someone in the applicant's role through this period, which is likely why the decision was made when it was and not because Rooms had had enough of the applicant's allegedly poor performance.
61Moreover these conclusions are completely consistent with what Mr. Walia told the applicant on two separate occasions around and shortly after the applicant's dismissal. The applicant was dismissed by letter dated December 3, 2014 but which she only received on December 5, 2014. December 3, 2014 was a Wednesday and December 5 was a Friday. The meeting between the applicant and Mr. Majithia in which he angrily reacted to the news of the applicant's pregnancy, likely occurred earlier in the week on Monday December 1, 2014.
62On December 7, 2014 the applicant sent a text to Mr. Majithia in which she told Mr. Majithia that it was his responsibility to tell Mr. Walia that this was illegal. It is only then that the applicant was told by Mr. Majithia that the reason for her dismissal was poor performance identified by Mr. Walia. As discussed, the applicant called Mr. Walia. This conversation was recorded. In this conversation the applicant relays what she has just been told by Mr. Majithia. Mr. Walia responds "it is nothing like that." Mr. Walia confirms, for a second time according to the applicant, they need to train her to do more things for them and it's not worth it because she is "leaving soon anyway."
63It is only after the applicant has told Mr. Majithia what Mr. Walia was doing was illegal that a second letter of termination was issued asserting that there were performance issues.
64Mr. Walia testified that he was not telling the applicant the truth in these conversations with her and did so to avoid "this" – which I took to mean a reference to some sort of legal process. He then modified his response "this" to say he wanted to avoid any problems with the applicant's termination. I do not entirely accept Mr. Walia's explanation. I do accept that he wanted out of the arrangement with Majithia because for whatever reason the applicant was not what he wanted. However I also find that the timing of dismissal was because of her pregnancy and the need to replace her sooner rather than later for the reasons discussed above. I do accept Mr. Majithia's evidence that there was no work for the applicant other than that provided by Rooms. Although the applicant challenged the assertion that she was hired exclusively to work at Rooms, she did not challenge Mr. Majithia's position that there was no other work for her at the time.
65Accordingly I find that the respondent Rooms determined in large part because the applicant was about to take a leave because of her pregnancy that she must be dismissed and replaced at that time because "she was leaving soon anyway." I also find that Mr. Majithia knew this to be the case because I find that Mr. Walia likely told him so and in any event it is clear that the fact that the applicant was pregnant and about to take a leave was discussed by the two men when they discussed the issue in late November or early December 2014. It is also not disputed that Mr. Walia told the applicant that she was being dismissed because she was about to take a pregnancy leave on two occasions. Even if I am incorrect in concluding that the Mr. Majithia and Mr. Walia discussed the true reasons for the dismissal of the applicant, I also find that despite knowing that the applicant had been told by Mr. Walia that she was being dismissed because she was about to take a parental leave Mr. Majithia took no steps to inquire or do anything and chose instead to end the applicant's employment. For this reason as well I find that he is jointly liable with Rooms for this discriminatory decision. I also find that by his egregious treatment of the applicant in their meeting on or about December 1, 2017 and the impact that it had on the applicant that Mr. Majithia discriminated against the applicant on the basis of sex.
The Request to Add Mr. Walia
66As indicated Mr. Walia gave evidence that Rooms is no longer operating. Although this is not entirely clear, it may not have any assets or ability to satisfy the Orders made in this case. Consequently, as set out above, the applicant filed a Request for Order During Proceedings after the hearing seeking to add Mr. Walia as a personal respondent. The proposed respondent opposed the request.
67The Request is denied. In doing so I accept that in the normal course Mr. Walia could properly have been identified as a respondent by the applicant but was not because at the time the Application was filed the applicant believed that Mr. Walia's evidence would support her position. I also acknowledge that Rooms was added by Majithia and Mr. Walia has been involved, as described above, in this case since its outset. On the other hand, the applicant has known that Rooms had changed its position as described above on May 20, 2016 almost a year before the Request was made and before the respondents had begun to lead their evidence.
68It seems to me completely unfair to add a party to a proceeding that has concluded in these circumstances. I do not agree that there is no prejudice to Mr. Walia in being added as this stage despite his involvement as a principal of Rooms. There is a substantial difference between being a witness in a proceeding and responding party to a claim. I would also observe that that an important reason for the recognition in the law of corporate and other legal persons as separate from the real persons who own and operate them is to shield those people from liability. It simply cannot be said that Mr. Walia would not be prejudiced by being added to the proceeding at its conclusion and at a minimum before he gave his evidence. For these reasons he Request is denied.
REMEDY
69The applicant sought compensation for injury to dignity, feelings and self-respect, compensation for lost wages including lost employment insurance benefits and pre and post judgement interest.
70In assessing the appropriate compensation for injury to dignity, feelings and self-respect, there are two main considerations: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880 ("Arunchalam"). In Arunachalam the Tribunal reviewed at paras. 52-54 the development of its approach to the assessment of damages:
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 at paras. 34-38.
71The considerations discussed in Sanford v. Koop, above, include:
- Humiliation experienced by the complainant
- Hurt feelings experienced by the complainant
- A complainant's loss of self-respect
- A complainant's loss of dignity
- A complainant's loss of self-esteem
- A complainant's loss of confidence
- The experience of victimization
- Vulnerability of the complainant
- The seriousness, frequency and duration of the offensive treatment.
72The applicant is entitled to compensation for the intangible losses she has experienced including losses to her dignity, feelings and self-respect.
73The applicant sought compensation for injury to dignity, feelings and self-respect in the amount of $25,000. Given my conclusions above this amount is too high particularly because I have found that it likely that the applicant may have been dismissed for non-discriminatory reasons at some point. However, I do accept that the decision to dismiss coming as it did on the eve of her pregnancy leave and the birth of her child was stressful for the applicant. However the applicant's evidence made clear that this effect appears to have been transitory. I would award $10,000 in compensation for injury to dignity, feelings and self-respect for the respondents' decision to terminate her employment when they did.
74The applicant is also entitled to an award of $2000 for compensation to her feelings, dignity and self-respect caused by Mr. Majithia's treatment of her in the meeting between them described earlier. I accept the applicant's evidence that she was hurt and upset about his conduct during this angry meeting and the implicit threat to her employment that I accept was made.
75The applicant seeks compensation for lost wages to January 15, 2015, the date she would have commenced her leave. She testified that this would have been $2,269.23. She also testified that because she was dismissed before the commencement of her planned leave she was short hours for a full employment insurance claim. She testified that she lost approximately 11 weeks of EI benefits totalling $4532 and a reduction in benefits for 28 weeks, which amounted to $4704.00 for a total loss of benefits of $9,236.
76I agree that the applicant is entitled to these amounts. Her employment was cut short by the respondents' decision, which had these direct consequences. The respondent Majithia argued that the applicant failed to mitigate her damages by not accepting a proposed settlement which would have given her income until her expected leave date and would have allowed her to collect her full employment insurance benefits. I heard some limited evidence about the settlement discussions and the reasons for their failure. I agree with the applicant that this evidence is irrelevant to the issue and the argument of the respondent on this point without merit. Mitigation of one's damages does not require that one abandon their legal rights and capitulate to the employer's position. What was demanded of the applicant's in this case is that she give up her rights under the Code and the Employment Standards Act. She might have done so but she cannot be required to. See De Abreo v Humber Institute of Technology, 2010 HRTO 2404.
77The applicant also sought compensation for lost wages from the end of her maternity leave on January 16, 2016. Because I have concluded that the applicant would more likely than not have been released by Rooms because it wanted out of the arrangement and that Majithia had no work for her, I find that she is not entitled to claim those lost wages.
78The applicant is entitled to pre-judgement interest on the total of lost wages awarded in accordance with the Courts of Justice Act from the rough mid-point of the period during which this loss occurred, July 30, 2015 and post-judgement interest in the event that the Orders below are not paid in a timely way.
ORDER
79The Tribunal makes the following Orders:
The request to add Mr. Walia as a personal respondent is denied;
The respondents shall pay to the applicant the amount of $10,000 as compensation for injury to her feelings, dignity and self-respect;
The respondents shall pay to the applicant the sum of $2,269.23 in lost wages for the period from her termination to January 15, 2015, less such statutory deductions required by law;
The respondents shall pay to the applicant the sum of $9,236 representing lost employment insurance benefits, less such statutory deductions required by law;
The respondents shall pay to the applicant pre-judgement interest in the amount of 1.3% on the sum of $2,269.23 representing lost wages in accordance with the Court of Justice Act from January 1, 2015, the mid-point of the period during which these wages would have been paid;
The respondents shall pay to the applicant pre-judgment interest in the amount of 1.3% on the sum of $9,236 representing lost employment insurance benefits from July 15, 2015 roughly the half way point of the period during which these benefits were payable;
The respondent Majithia shall pay to the applicant the amount of $2,000 in compensation for injury to her dignity, feelings and self-respect; and,
The respondents are liable to pay post-judgement interest in accordance with the Courts of Justice Act for any amount of these awards not paid 30 days after the date of this Decision.
Dated at Toronto, this 10th day of October, 2017.
"Signed by"
David Muir Vice-chair