DIVISIONAL COURT FILE NO.: 221/14 DATE: 20150407
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, SACHS AND LABROSSE JJ.
BETWEEN:
SYSTEMGROUP CONSULTING INC. Applicant
– and –
SHERYL (a.k.a. Sheri) MCCONAGHIE Respondent
Eric Fournie, for the Applicant Philip R. White, for the Respondent Brian A. Blumenthal, for the Human Rights Tribunal of Ontario
HEARD at Toronto: April 7, 2015
SACHS J. (ORALLY)
1The Human Rights Tribunal of Ontario (“the Tribunal”) found that the applicant had contravened the Human Rights Code, R.S.O. 1990, c. H.19 and ordered compensation to the respondent, its former employee. The applicant seeks judicial review of the Tribunal`s decision submitting that part of the remedy ordered by the Tribunal was unreasonable for two reasons:
(i) The Tribunal unreasonably ignored the contract of employment between the applicant and respondent in determining the actual loss of wages suffered by the respondent.
(ii) The Tribunal unreasonably ignored an amount in relation to unearned commission.
Contract of Employment Issue
2There is no issue that under the employment agreement between the applicant and the respondent, the respondent was entitled to four weeks wages upon the termination of her employment. Further, when she was terminated she was paid this amount. However, the Tribunal also ordered the applicant to pay the respondent her wages for the period from April 6, 2012 (the end of the four week period she was paid for) and October 8, 2012 (the date she found another job).
3The applicant acknowledges that the Tribunal has broad authority under the Code to award compensation. In particular, s. 45.2(1) of the Code states:
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 1 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.
4The applicant also agrees that the applicable principles that inform the assessment of monetary compensation under the Code are accurately summarized in Byers v. Fiddick’s Nursing Home, [2012] OHRTD No. 917 at para. 275 which reads:
It is well-established that the purpose of the Code is remedial, not punitive. The purpose of ordering that monetary compensation be paid to an applicant is an attempt to restore the applicant to the position he or she would have been in had the discrimination not occurred. An award of monetary compensation seeks to compensate the victim of discrimination and not punish the perpetrator.
5The applicant argues that in the present case, restoring the respondent to the position she would have been in prior to her termination would be to give her the rights that she had under the employment agreement.
6While this may be true in the context of a common law action for damages for wrongful dismissal, it is not true when what is at issue is to determine the compensation for lost wages arising out of an infringement of the Code.
7As the Court of Appeal made clear in Piazza v. Airport Taxicab (Malton) Assn. (1989), 1989 4071 (ON CA), 69 O.R. (2d) 281, the power of the Tribunal to order compensation under the Code is not subject to the limits “on compensation which is imposed by the common law with respect to claims for wrongful dismissal.”
8In our view, this continues to be true post the 2008 amendments to the Code, which, if anything, broadened the Tribunal’s powers to award compensation.
9As the Tribunal found that the respondent’s employment would likely have continued but for the violations of the Code and that she made reasonable efforts to mitigate, it reasonably awarded compensation for lost wages for the period up to the time that she obtained new employment. In doing so, it attempted to place her in the position she would have been in had the Code not been violated. This outcome was a reasonable one.
The Alleged Overpayment of Commission
10With respect to the applicant’s submission on this point, the Tribunal rejected the applicant’s argument because the applicant never provided the Tribunal with the documentation necessary to determine the respondent’s entitlement to commission.
11Essentially, the applicant is seeking to provide evidence as to one aspect of the respondent’s commission entitlement without having provided the Tribunal with the evidence necessary to make a determination on all aspects of this entitlement.
12In our view, the Tribunal reasonably refused to allow this to happen in its Reconsideration Decision. Further, the Tribunal’s finding regarding the commission issue was a finding of fact that we should not disturb.
Conclusion
13For these reasons, the application is dismissed.
Costs
SWINTON J.
14I have endorsed the Application Record, “This application is dismissed for oral reasons delivered by Sachs J. We do not see this as a case for enhanced costs. Applicant shall pay costs to the respondent, on a partial indemnity basis, in the amount of $6,902.17 as per the respondent’s bill of costs, which we find to be reasonable.”
___________________________ SACHS J.
SWINTON J.
LABROSSE J.
Date of Reasons for Judgment: April 7, 2015
Date of Release: April 9, 2015
CITATION: Systemgroup Consulting Inc. v. McConaghie, 2015 ONSC 2213
DIVISIONAL COURT FILE NO.: 221/14 DATE: 20150407
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, SACHS AND LABROSSE JJ.
BETWEEN:
SYSTEMGROUP CONSULTING INC. Applicant
– and –
SHERYL (a.k.a. Sheri) MCCONAGHIE Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: April 7, 2015
Date of Release: April 9, 2015