Deborah Brown v. Trelford Automobile Limited, 1991 CanLII 6022

[1991] OLRB Rep. October 1225

3032-89-OH Deborah Brown, Complainant v. Trelford Automobile Limited, Robert Trelford, Respondents

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W. Pirrie and E. G. Theobald.

APPEARANCES: Linda Vannucci-Santini for the complainant; Edmund J. Stevens and Peter Trelford for the respondent

DECISION OF K. G. O'NEIL, VICE-CHAIR AND BOARD MEMBER E. G. THEOBALD: October 22, 1991

1. This is the continuation of a complaint under the Occupational Health and Safety Act. In its decision dated November 13, 1990, (now reported at [1990] OLRB Rep. Nov. 1155) the Board allowed the complaint and remained seized as to compensation. The parties were unable to agree as to the compensation owing and therefore the matter was brought back on for hearing.

2. The complainant, Deborah Brown, gave evidence as to her efforts to secure employment in mitigation of her damages. She was terminated effective May 12, 1989. On May 17, 1989 she registered with the Canada Employment and Immigration Centre ("CEIC") as a secretary/receptionist or clerical worker in the Owen Sound, Chelsea and Tara areas. Owen Sound is twenty to twenty-five minutes from her home town, Tara, and Chelsea is about fifteen minutes away. She called the CEIC once a week after that and visited once or twice every two weeks. She checked the daily newspaper and responded to ads concerning receptionist or clerical work. She went to a variety of businesses personally, inquiring for work or dropping off a resume or application. In Owen Sound she recalled applying at the Grey Bruce Regional Health Centre, the Co-operators Insurance Agency and the CEIC itself. In Tara she asked for clerical work at a parts manufacturer as well as in insurance agencies. Other places she applied were the Bruce County Board of Education, a nursing home, a hospital and the Ontario Hydro sites at Douglas Point and Owen Sound. She had a vehicle available and had child care for her two children at any time of the day or night.

3. She found work in the Red Cross Homemaking service in Owen Sound on April 3, 1990 as a visiting homemaker. She was part-time when she began and the amount of work increased in the summer of 1990. She was available for and had asked for more hours than she was given. She has had no other income except UIC. Her claim stops at July 23, 1990, the date of the last hearing on the merits, when her hours began to be closer to full-time and she withdrew her claim for reinstatement.

4. On cross-examination it became clear that although Ms. Brown had experience in working as a bank teller she had not applied to banks. She was more interested in becoming a receptionist or doing clerical work which she thought was something that banks seldom required.

5. She was hired by the Red Cross at the end of March to start on April 3. This was not very long before her UIC benefits were to expire, but they had not yet expired. She first applied to Red Cross in January or February. She said that although she had worked in a nursing home she had not been aware of this Red Cross service until she met somebody who informed her about it in January of 1990. She said that although she had only mentioned one nursing home in direct examination she had put in phone calls to others but they were not accepting staff or applications. She did not apply at her former employer in Tara, a nursing home, because her paycheques had bounced there. Employer counsel named a number of health care institutions in the geographical area in which she was looking to which she had not applied. He also named a place that he said was hiring where she had not recently put in her resume. She had applied to several others he named.

6. Referring to Jacmorr Manufacturing Ltd., [1987] OLRB Rep. Aug. 1086 complainant's counsel argued that Ms. Brown had engaged in reasonable mitigation. She had made child care arrangements and had gone beyond what the complainant did in the Jacmorr case. We are asked to consider that in the area surrounding Owen Sound there are bound to be fewer opportunities than in a metropolitan area like Toronto and that most of the places that employer counsel named were ones to which she had applied. We were asked to consider her uncontradicted evidence that she asked for more hours at Red Cross. Furthermore, she travelled looking for work. She had a vehicle and accepted work outside her home town.

7. In argument the respondent suggests various reasons that the Board should not award full compensation. These were, in summary:

(a) Failure to apply at all the available work places in the area of her search, being too selective in her search. It was argued that her effort was not very great until her unemployment insurance was running out, and that the work she accepted was not what she had registered at CEIC for;

(b) She filed the complaint eleven months after the facts complained of. Counsel refers to Tecumseh Products, [1985] OLRB Rep. Jan. 123;

(c) The Board's finding that the employer also had legitimate concerns about her performance. Counsel characterized the Board's decision on liability as finding a large body of performance problems that would have justified discharge. Counsel asked the Board to send a message to those coming later as to the appropriate manner of dealing with these cases. He made the analogy that if the paint room incident was the straw that broke the camel's back, the camel was already very loaded. He suggested that compensation should be commensurate with the degree of contribution that the paint room incident made to the discharge. Counsel argued that the fair result would be to only give partial compensation because the violation of the Act was only part of the reason for discharge;

(d) Her receipt of unemployment insurance benefits. Employer counsel argues that because the employer is small it should benefit from the UIC "social safety net" and the award should be reduced by the amount of the unemployment insurance received.

(e) The employer was not a conscious or flagrant violator of the Act. As an example of the employer's non-flagrant attitude counsel mentions the fact that they never again asked her to perform the work again to which she objected. As well, it gave her several weeks notice of her termination.

(f) Section 24(7) of the Act should be applied because of the employer's legitimate concerns about the complainant's performance in a fashion that would reduce the compensation owing.

(g) There should be a distinction made between large and small employers in penalty. Employer counsel referred to any sums that might be awarded to the complainant as a penalty.

8. In distinguishing Jacmorr, supra, the employer argues that Ms. Brown was more free of constraints than the complainant in Jacmorr and therefore it is reasonable that she should have made a greater effort than that made by the woman in Jacmorr in mitigation of damages.

9. The complainant's calculations of damages include an increase in the following year. Counsel says that given the findings of the Board about her performance that that should not apply.

10. In reply, complainant's counsel argues that Jacmorr is not readily distinguishable and that neither UIC benefits nor the employer's ability to pay should be a factor in determining the award. Further she states there is no room for any application of section 24(7) as no finding of cause was made. She argues that the message should be consistent for large and small employers; if any part of the reason for discharge is in response to protected activity, it is contrary to law and compensation follows. Counsel also noted that UIC had already taken into account income received when calculating benefits.

11. As to the delay issue, counsel submits the complainant was not cross-examined on that point and she did not have information on her rights. Therefore it is submitted that no deduction should be made for delay in this matter.

Award of Compensation

12. In assessing damages following a finding of a breach of the Act, the Board attempts to put the complainant in the position that she would have been had the unlawful discharge not occurred. The purpose of these awards is compensatory and not punitive. They are not a penalty on the employer. The Board has no penal jurisdiction.

13. Board places a responsibility on the employee concerned to mitigate the losses, but the onus of proof that an employee has failed to mitigate is on the employer. See, among others, Bond Place Hotel, [1983] OLRB Rep. Jan. 24. In this case we are of the view that, on balance, Ms. Brown made reasonable efforts to find work in mitigation of her losses. She registered with CEIC, checked with them on a regular basis, kept track of newspaper opportunities and spoke to friends and families about the possibilities of employment.

14. She registered with CEIC for work equivalent to that which she had lost, i.e clerical work. The employer asks that any award be reduced because she did not register in the area in which she eventually found work, or areas in which she had previous employment, including health care and banking. It is true that there is a possibility that registering in these areas would have enhanced Ms. Brown's ability to get work sooner and at least to this extent it is true that Ms. Brown could have done more in mitigation of her wage loss. However, the question before us is not whether this was a perfect job search, but whether it was reasonable. There is nothing in the evidence that suggests that Ms. Brown's efforts were unreasonable. This is particularly true when one considers that the employer did not prove that there was any job that was available that Ms. Brown would likely have gotten, nor any evidence about what she would have earned in any such position. There was no evidence, for example, of the sort brought in P.jH jMJ. Wallbank Mfg. Company Ltd., [1980] OLRB Rep. Dec. 1797 that there were job opportunities in the employee's trade that he would likely have received if he had applied. Given these factors, in light of the fact that her overall efforts were reasonable, we see no reason to reduce the award on this aspect of the argument. See in this regard De Carlo Shoe Co., [1965] OLRB Rep. June 224 and Sutton Place Hotel, [1980] OLRB Rep. Aug. 1250.

15. We turn next to the delay in filing the complaint. The Board's approach to delay has been explained most frequently in its decisions on requests to dismiss for undue delay in filing complaints. The Board has explained on numerous occasions that it does not take a mechanical approach to delay. If the delay is extreme, the complaint may be dismissed. If the complaint proceeds, and is successful~ the Board may take any unreasonable delay into account when assessing compensation. See, among others, Hayes Dana Limited, [1968] OLRB Rep. April 89; Corporation of the City of Mississauga, [1982] OLRB Rep. March 420; Marshall-Globe Canada Ltd., [1982] Jan. 113; George Hinkson, [1987] OLRB Rep. Oct. 1246; Roma Auto Metal Iron Limited, [1969] OLRB Rep. Oct. 885; Decor Wood Specialties Limited, [1974] OLRB Rep. March 136; Ernie's Signs Limited, [1976] OLRB Rep. August 404. Here, there was no request to dismiss but the matter was raised in the context of argument on the quantum of compensation.

16. As the reported cases indicate, the Board has taken into account whether the delay is explained and such matters as lost settlement opportunities, any prejudice to the other party, cessation of union representation and whether the complainant was letting time run in order to increase a claim. It has acknowledged that some time must be allowed to consult and to ascertain the strength and weakness of a case. In a unionised context, in Ernie's Signs Limited, supra, the Board accepted that the principle of mitigation extends to the reasonableness of the union's efforts to redress the alleged wrongdoing. In Sonic Transport Systems Limited, [1981] OLRB Rep. Oct. 1483 the standard applied was when would the complaint have been filed if counsel and the client had proceeded with due diligence. Each case turns on its facts.

17. Given the fact that the employer did not argue that the complaint should be dismissed, its argument on delay is in effect an argument that Ms. Brown failed to mitigate her damages. Its import is that her damages are higher than they ought to be because of an avoidable reason: if she had complained earlier, the matter would likely have been heard and resolved earlier, with a shorter period during which damages would have accumulated. Whether or not to complain is a matter which was in Ms. Brown's control. The employer is essentially saying that in delaying the complaint Ms. Brown failed to act reasonably in mitigation of her damages. The idea that delay is an aspect of mitigation was accepted by the Board in Ernie's Signs Limited, supra. The onus of proof that a complainant has not acted reasonably in mitigation of damages is on the employer.

18. Any deduction for delay is resisted by complainant's counsel on the basis that the complainant was not cross-examined on her evidence about delay. There was no obligation to cross-examine on that evidence in the circumstances of this case. Failure to cross-examine does not mean that the evidence is not relevant nor that the party electing not to cross-examine on certain testimony will not place any reliance upon it. However, the fact that the onus of proof on the question of the reasonability of the efforts to mitigate is on the employer will mean that failure to develop the evidence in cross-examination is at that party's own risk.

19. The evidence we have on the delay issue is in the complainant's direct examination in the original hearing. Most specifically, complainant's counsel asked her client when she had found out that she had the right to file a complaint with the Board. The complainant's response was that first of all she had difficulty in obtaining the inspector's report and then she found that she could file a report (by which we infer she meant a complaint), through the Minister of Labour in Kitchener. Further, she said she did not get the inspector's report until mid-November 1989. In another portion of her evidence, the complainant said she knew she could have called an inspector prior to May 12, 1989, the effective date of her discharge, having learned this from one of her husband's co-workers. There were apparently three visits by Ministry personnel to the employer: a May 24, 1989 inspection done in response to an anonymous complaint, a hygiene field visit on September 29, 1989, and a follow-up inspection on November 16, 1989. The complaint is dated March 8, 1990.

20. Thus, the period of time between the effective date of discharge and the receipt of the inspector's report (or reports - the evidence is unclear which) is approximately six months. Exactly when Ms. Brown learned of her right to file a complaint is unclear, although it was apparently at a different time from her learning of her right to call the inspector - whether before or after we do not know. She seems to have been under the impression that she needed the inspector's report before she could proceed, although this was incorrect. The period after mid-November, 1989, when she received the report, and the date of the complaint, March 8, 1990, is completely unexplained.

21. The portion of delay until mid-November is explained by waiting for the inspector's report and Ms. Brown's ignorance of her rights. The evidence does not establish that Ms. Brown was involved in the calling of the inspector, although given the timing, it is highly likely that the anonymous complaint was at least triggered by the facts of her case, if not made by her. She must have known about it, or waiting for the report is inexplicable. Waiting for the inspector's report was unnecessary, since it was not a pre-requisite to filing a complaint, and as it turns out, did not assist in establishing the facts pertinent to the complaint. The latter fact is not something that the complainant could have known prior to receipt of the report or reports. There is no indication that Ms. Brown was delaying so as to increase her damages.

22. The question before us is whether the delay was unreasonable so as to deprive the complainant of the compensation that would otherwise flow in the circumstances of this case. The proposition that waiting for the inspector's report was unreasonable was something that was never put to Ms. Brown in evidence, and thus we do not have evidence directed at this point. Although waiting indefinitely for any reason, including an inspector's report, is not something the Board can condone, the evidence before us does not establish that waiting until the time of the issuance of the last report was unreasonable. In other situations, or on other evidence, it might well be found to be unreasonable to wait so long for an inspector's report before filing a complaint. Given the onus of proof on this aspect, on the evidence before us, we have determined that the delay until mid-November should not weigh against Ms. Brown in the calculation of damages.

23. We also note that a consideration present in this case that was not present in any of the reported cases is that neither party was aware of its rights and obligations under the OHSA. Any consideration of lost settlement opportunities or possible prejudice (which was not argued in this case) must be viewed in light of the fact that the ignorance of both parties contributed to the fact that the matter was not handled as the legislation contemplated at the time of the incident. If either party had been familiar with the legislation, it is likely that the paint room incident would have been handled quite differently, with the possibility of Ministry involvement earlier on. Ms. Brown might then have become aware of her right to file a complaint earlier, or the matter might have been sorted out short of her discharge. In any event, the likelihood that the delay would not have occurred would have increased.

24. We have considered the fact that the delay is substantial, and approaches the length of time at which complaints have been dismissed for excessive delay. As the Board stated in Tecumseh Products, supra., the Board's approach to delay as set out in a variety of cases under The Labour Relations Act is also applicable to matters under The Occupational Health and Safety Act. In that case the Board remarked that expeditious resolution of alleged violations of health and safety legislation is even more desirable. Further, the period of time between the receipt of the inspector's report and the signing of the complaint is completely unexplained. In all the circumstances of this case, we have determined that an amount should be deducted from damages which would otherwise flow which is representative of the unexplained portion of the delay, from mid-November, 1989 until March 8, 1990, a period of approximately 16 weeks. Compensation would otherwise have been payable for 62 weeks; thus it will be calculated on the basis of 46 weeks.

25. As noted above, respondent's counsel also argued that the Board found his client had legitimate grounds for dismissal of the complainant, and that this also warranted a reduction in compensation. However, the Board did not find that there were grounds for dismissal. This question was not before the Board and was not addressed by the Board. What the Board did find was that there was legitimate ground for the employer's concern about Ms. Brown's performance and that the possibility of terminating her had been discussed. However, the Board wrote at paragraph 25 in its decision on the merits that the employer had many options to deal with its dissatisfaction,

including discharge, and that none of those options had been exercised before the paint room incident. In this situation we do not find it appropriate to make any deduction for poor performance or any possibility of discharge. We have found that the discharge was unlawful. We are simply unable to know, in the circumstances, whether or not the employer would have ever put the matter of Ms. Brown's performance back on the table for discussion if the paint room incident had not occurred. The dissatisfaction had gone on for a significant length of time with no action from the employer. This is not a case such as FAG Bearings Ltd., [1978] OLRB Rep. Jan. 76 where the evidence established that the employer had a history of giving disciplinary suspensions and that the unsatisfactory conduct in evidence would have warranted them. Nor is it a case like Art Shoppe, [1988] OLRB Rep. Aug. 729 or Bo Ramjit, [1990] OLRB Rep. Aug. 874, where the Board was satisfied that the employee was intending to leave shortly anyway and computed damages accordingly. Our case is more similar to Home Bread Bakery, [1972] OLRB Rep. May 537, where despite a less than satisfactory work record, full compensation was awarded upon finding a breach of the Act.

26. The employer also asks that it be given the benefit of the "social safety net", the unemployment insurance benefits the employee received, and that the amount received be deducted from the compensation order. The request did not include any indication that the employer would remit the amount to UIC. We cannot grant this request. The law is clear that whatever the disposition of the amounts received from unemployment insurance, the employer cannot retain the equivalent sum. Sections 51 and 52 of the Unemployment Insurance Act are clear on that, as is the jurisprudence on the subject.

27. What is less clear in the jurisprudence is whether damages for unjust or unlawful dismissal are remuneration within the meaning of the Unemployment Insurance Act and what their disposition ought to be. See, for instance, Re Town of Kentville and Kentville Police Association, 1982 CanLII 4992 (NS LA), [1983] 6 L.A.C. (3d) 377 and its reference to the case of Smith v. World-wide Church of God et al., (1980), 1980 CanLII 4453 (NS SC), 39 N.S.R. (2d) 430 and Peck v. Levesque Plywood Limited (1979), 1979 CanLII 2055 (ON CA), 105 D.L.R. (3d) 520 and Re Mohawk College of Applied Arts and Technology and Ontario Public Service Employees' Union (1982), 1982 CanLII 5122 (ON LA), 5 L.A.C. (3d) 237. See also the unreported decision Canadian Pacific Limited and Brotherhood of Locomotive Engineers, dated March 14, 1990, in which arbitrator M. J. Picher considered the lower court's decision in Ratych v. Bloomer (1987) 16th C.C.E.L. 245 in this respect. See also the consideration of the Supreme Court of Canada's May 3, 1990 decision in Ratych, now reported at 1990 CanLII 97 (SCC), [1990] 1 S.C.R. 940 in the unreported decision in Monette v. Braund, Ontario Court of Justice dated Oct. 24, 1990. In the latter decision, Mr. Justice Cosgrove concluded that UIC payments should not be deducted from an award of damages for loss of wages as employer wages would have been. In any event the only request before us was to have the employer's liability reduced by an amount equivalent to these benefits. It is therefore unnecessary to decide whether or not an amount equivalent to the UIC benefits should be deducted on any other basis, particularly in light of the fact that the parties did not argue any of the law on the subject, which as we have said, does not indicate a clear result in the circumstances of this case. As well, we have not awarded compensation for the full period of receipt of UIC. If Ms. Brown has a repayment obligation to the Unemployment Insurance Commission, that is a matter to be resolved between her and the Commission.

28. The employer also asked that the award be reduced because the employer was not a conscious or flagrant violator of the Act. Since the award is compensatory and not penal in nature, this is clearly not an appropriate basis for reduction.

29. The employer also asked us to apply section 24(7). Section 24(7) reads as follows:

Where on an inquiry by the Ontario Labour Relations Board into a complaint filed under subsection (2), the Board determines that a worker has been discharged or otherwise disciplined by an employer for cause and the contract of employment or the collective agreement, as the case may be, does not contain a specific penalty for the infraction, the Board may substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.

However, as noted above, the Board did not determine that the worker had been discharged or otherwise disciplined for cause. Thus, the section has no application in the circumstances of this case. More generally, the penalty referred to in that section is a penalty on the employee, not the employer. As we have said above the Board has no penal jurisdiction for infractions of the Act and the award of compensation is not a penalty but a "make whole order".

30. We also find no merit in counsel's request that we reduce the complainant's compensation because the employer is a small one. We were made aware of no basis in the law generally or the Act itself to reduce a "make whole" order because the employer is small. The Act does not make a distinction between small and large employers when establishing obligations as to work refusals, and we see no legitimate basis for doing so in quantifying the compensation owed to the complainant by the respondent.

31. The complainant's calculations of damages included an increase in February, 1990. The evidence did not establish on the balance of probabilities that Ms. Brown would have received an annual increase, or one at the same rate as the one she received in February, 1989. She had been employed at the respondent's place of employment less than a year at the time of the first increase and the evidence was insufficient to base a conclusion as to the probability of similar increases. Therefore we have not made an award for an increase in the following year.

32. Based on all the above, our award of compensation is as follows:

Calculation of Compensation Owing Deborah Brown

Amount Ms. Brown would have earned at Trelford Automobile

36 hours per week x $6.85 x 46 weeks $11,343.60

4% vacation pay on $11,343.60 453.74

Total $11,797.34

SUBTRACT EMPLOYMENT INCOME AND VACATION

PAY FROM THE CANADIAN RED CROSS SOCIETY

Employment income (based on pay stubs

April 3/90 - July 23/90) 2,049.66

Vacation Pay (based on pay stubs

April 3/90 - July 23/90) 82.61

Total received from Red Cross

employment plus vacation pay $ 2,132.27(B)

THEREFORE, TRELFORD'S PROJECTED

GROSS INCOME MINUS RED CROSS INCOME = 9,665.07(C)

Calculate interest according to practice

note 13 - rate Bank of Canada Prime

Interest Rate as of date complaint

filed (March 8,1990)13.5% taken

from bank of Canada Review

THEREFORE, $9,665.0712 = 4832.54

4832.54 x .135 x 46 weeks/52

Interest on Award 577.11(D)

Total Compensation plus Interest 10,242.18(E)

33. The respondent is ordered to pay $10,242.18 to Ms. Brown forthwith.

DECISION OF BOARD MEMBER R. W. PIRRIE; October 22, 1991

1. I dissent from the majority decision.

2. I cannot accept the rationale of the majority in arriving at the level of compensation they have awarded Ms. Brown. While I accept that Ms. Brown did not consciously delay filing her complaint in order to enhance her damages, the fact is there is an approximate ten-month period between her last day of employment and the day she filed her complaint during which she took no action.

3. The majority excuse and compensate Ms. Brown for some six of this ten month delay on the basis she was awaiting an inspector's report. The evidence we have is that the initial inspection of the work site was done on the basis of two anonymous complaints dated May 9 and May 19, 1989 to the Ministry of Labour - complaints which Ms. Brown in her testimony never did acknowledge she initiated. That initial investigation in late May 1989 makes no mention whatsoever of the issue involved in Ms. Brown's work refusal. The subsequent inspection report, the one Ms. Brown waited until mid November 1989 for, flows from a further visit to the Trelford premises by an Inspector to deliver an October Consultant's report as a follow up to the initial inspection in May 1989. Once again the Consultant's report and the conveying November 16, 1989 inspection report make no reference to the issue involved in Ms. Brown's work refusal.

4. What we have then is a May 1989 inspection and report, done on the basis of an anonymous complaint. That report doesn't assist Ms. Brown's case. She waits for a subsequent inspection and report - until mid-November 1989. That report doesn't assist Ms. Brown's case. She waits a further four months until March 1990 to file a complaint against her former employer. The majority compensate Ms. Brown for the time she waited for the second inspection report. I fail to understand why.

5. I do not agree the inspection reports are a factor which should play any part in compensating Ms. Brown. She didn't initiate them and they bear no relation to her work refusal. If however the majority want to take the reports into account, I would have thought it appropriate to utilize a date shortly after the first inspection was conducted and would have been available to Ms. Brown, as a basis for discounting her compensation. To compensate Ms. Brown while she waited for a second report, which contributed nothing to the issue is, in my opinion, illogical, wrong and excessive.

6. Ms. Brown was the author of the ten month delay in filing her complaint and I would not have compensated her for any portion of that time.