The Story
Sylvia Osvald began work as a receptionist for Videocomm in November 2006.  A few weeks after starting her job she told her employer that she was pregnant.  She began to take time off to attend doctor’s appointments related to her pregnancy.  She missed hours but made them up at lunch.  Unfortunately on January 19, 2007 Sylvia suffered a miscarriage at work.  The evidence showed it was a very terrible ordeal and Sylvia was very upset.  She was almost 20 weeks pregnant by this time and she was alone in the bathroom when the miscarriage occurred.

She returned to work the following Monday.  On the following Tuesday she suffered from an infection and required immediate surgery.  The surgery took place at 3:00 a.m. on the Wednesday and she returned home later that morning.  She slept through the day and did not call her employer to advise that she would not be coming into work.  She did testify that she did tell her employer that she would need to take a day off if she required surgery.   She went to work on the following Thursday and was advised that “her services were no longer required” and directed her out of the back door of the offices.  The evidence that was in dispute at this human rights hearing was largely a question as to why she was fired.

The Company’s Position
The company did not have an issue with the pregnancy.  They argued that employees that became pregnant were fully supported.  They stated that they terminated her for performance related issues, particularly for excessive absenteeism and the inability to leave her personal problems at home.  They often found her teary and upset by phone calls to and from family members which affected her work.  They spoke to her on numerous occasions.  They complained about her surfing the internet during business hours.  She always looked to have been crying and not happy.  They were always concerned about her moods.  She seemed distracted all the time and unable to concentrate on her training.  She was chronically absent.  She often called in late.  She exceeded the company’s policy of 5 sick days within the first few weeks of her employment.  She was absent 9 times in less than 3 months (despite this, they could not produce a calendar to support her absences).  The Human Rights Tribunal found that they could not rely on the employer’s evidence about the number of days Sylvia was absent.

Sylvia disagreed.  She testified that all her absences were pregnancy related and were made up during her lunch hours.  She was only absent 3½ days because of illness.  She took an approved day off to support a friend in Court.  She was absent for the period after her miscarriage.  The Tribunal accepted the company’s perception that Sylvia was frequently absent, but that perception was exacerbated by the series of absences associated with Sylvia’s miscarriage and is directly connected with the termination which followed Sylvia’s return to work.

The Tribunal also noted that Ms. Davidson, the warehouse manager at Videocomm, said to Sylvia at the termination meeting “you were a great worker when you were here” which the Tribunal accepted as evidence connecting her absences, which were largely pregnancy related, to the termination.

A Ms. Ferjo, candidly admitted that her time was deplorable, coinciding as it did, with Sylvia’s miscarriage.  However she was determined to terminate Sylvia within her probationary period.  The Tribunal found however, that had they waited until the end of January to terminate her according with the pay cycle, it would have allowed her a short period of time to recover from the ordeal of her miscarriage and would have still fallen within Sylvia’s probationary period.  There was no reasonable explanation for carrying out the termination on the day of her return from the miscarriage and subsequent surgery.  In the Tribunal’s view, the company’s decision to terminate Sylvia when they did was based on or at least in part with Sylvia’s absences which were directly linked to her pregnancy.  For all of these reasons, connection between Sylvia’s absenteeism and her pregnancy, the failure to produce documents supporting the respondent’s claim of excessive absenteeism, and the respondent’s failure to provide a reasonable explanation for why they terminated her the day after her surgery, ultimately wound up in the Tribunal determining the Human Rights Code was in fact breeched.

With respect to the termination issues, the Tribunal went through the issues of her being frequently upset, crying, having personal issues, out in the hallway talking on her cell phone and other issues that prevented her from fully concentrating on her employment.  They noted that Sylvia gave evidence that she was never disciplined either orally or in writing for any performance related issues.  A copy of her employment contract included the company’s disciplinary procedures which they did not follow.

The Tribunal found that it became clear through the course of the hearing that the employer misapprehended it’s obligations under the Human Rights Code and its dealing with Sylvia.  Throughout the hearing Ms. Virgil, on behalf of the respondent, relied on the view that the respondent had a right to terminate Sylvia because she was in a probationary period without providing any justification.  The Tribunal found that there was no doubt that Ms. Virgil believed that she was not terminating Sylvia because of her pregnancy in that sense however, a finding that factors related to Sylvia’s pregnancy were among reasons for the termination is sufficient for a finding of liability under the Human Rights Code.  In short, because her termination was somewhat related to the pregnancy, the Tribunal sided with Sylvia.

What was the Remedy?
Sylvia claimed compensation for lost income.  The Tribunal awarded $2,500.00 for retraining and outplacement counseling.  The Tribunal also awarded Sylvia two months lost wages, $10,000.00 as monetary compensation for injury to dignity, feeling and self-respect and prejudgment interest.

Lastly, the Tribunal ordered that the company, at its own expense, hire a human rights consultant approved by the commission and provide a mandatory human rights training program about human rights in general with a particular focus on pregnancy related rights.

Section 46.1(1) notes that if, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part 1 of another party to the proceeding, the court may make either of the orders, or both:

1)    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.

2)    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 the loss arising out of the infringement, including restitution for injury to dignity, feelings and self respect.

In the past, the Supreme Court has historically prevented courts from awarding common law remedies for violations of the Human Rights Code.  The Court of Appeal however has allowed parties, particularly in wrongful dismissal claims to plead discrimination in support of their claims.  The important thing to note however that Section 46.1(2) notes that the action cannot be based solely on an “infringement”.  The Act does not permit a person who commits an action based solely on an infringement of the Human Rights Code.  The claim and the remedy must be ancillary to other actions such as wrongful dismissal.  To date I am unaware of any Ontario courts awarding damages under 46.1(1).  The Court of Appeal has also determined that Section 46.1 can only be applied to claims after June 2008.  The other important thing to note however is that if a remedy is being sought in a court action under the Human Rights Code for an infringement arising out of the Human Rights Code for a Section 34(11) of the Human Rights Code will be applied and the Tribunal will dismiss the case.  Essentially you cannot ride two horses at once.

The case of Thomas Lindsay Stokes v. St. Clair College was an attempt at testing section 46.1 of the Human Rights Code.  The action, at its base, was an action for damages for wrongful dismissal of the plaintiff by the college.  Beyond allegations of improper notice, the plaintiff sued the college for monetary compensation under Section 46.1 of the Human Rights Code on the basis of the infringement by the defendant, Justin Kazakebicius, protected right under the Act.  Kazakebicius was the plaintiff’s supervisor.  The plaintiff alleged that for some time before his dismissal, he suffered a medical condition which kept him from the workplace.  The allegation was that there was a failure by Mr. Kazakebicius to accommodate the plaintiff’s condition contrary to Section 5(1) of the Code which may attract damages under Section 46.1(1) of the Human Rights Code for loss or injury to dignity, feelings and self respect.  It was also alleged that Dr. John Stausser, President of the College, knew of the plaintiffs’ condition and had the last say on how he was to be treated.  Justice Hockin noted that the relief sought under the Code is an adjunctive relief which is permissible under Section 46.1 of the Code.  The relief may be prosecuted since it finds its place as ancillary to a wrongful dismissal action.  He noted that the plaintiff can proceed this way as has been the case since June 30, 2008 when the Code was amended to mitigate against the result in Seneca College v. Bhadauria.

The defendants brought a motion under Rule 21 in a question of the law.  The question was whether the issues with respect to human rights within a lawsuit were scandalous, frivolous and vexatious and would they delay or prejudice the trial.  They alleged that because no cause for termination was relied upon by the defendants, allegations of discrimination contrary to the Human Rights Code were not relevant to the wrongful dismissal claim.  The defendants also stated that the plaintiffs were trying to establish a separate cause of action against the defendants based upon the allegations of a breach of the Human Rights Code, which they alleged were foreclosed by the Code.  Alternatively, the defendants plead that extensive pleadings that are not relevant to the wrongful dismissal claim that can only be relevant to a separate claim of violation of Human Rights Code are scandalous, frivolous and vexatious.

What did the Judge say about this?

This was one of the first cases that dealt with a mix of a lawsuit and the Human Rights Code post 2008.  The Judge said that the paragraphs in the lawsuit had set out a clam for compensation or restitution under section 46.1 of the Human Rights Code.  He said that they did not need to be relevant to the wrongful dismissal of the claim.  Since the enactment of 46.1, a plaintiff is allowed to advance a claim for a loss on the basis of a breach of the Code as a cause of action if it is prosecuted with another wrong.  Technically this does not even need to be tagged along with a wrongful dismissal suit.  You could advance a claim on the basis of section 46.1 within any kind of lawsuit as long as it is prosecuted with a wrong.

He referred to Honda Canada v. Keays of the Supreme Court noted “that a person who alleges a breach of a provision of the Human Rights Code must seek a remedy within the statutory scheme set out in the Code itself.  Moreover, the recent amendments to the Code (which would allow a plaintiff to advance a breach of the Code as a cause of action in connection with another wrong) restrict monetary compensation to a loss arising out of the infringement, including any injuries to dignity, feelings and self respect.  In this respect, they confirmed the Code’s remedial thrust”.

The Judge also found that any complaint that the infringement part of the case is frivolous or will delay or unduly lengthen the fair trial of this action, will only attract a cost order or set off for costs at the conclusion of the case.  As a result, the motion was dismissed and the plaintiff was successful.

It will be interesting to see if the plaintiff recovers damages for violation of his Human Rights and whether or not he will obtain any monetary compensation under Section 46.1(1) of the Human Rights Code.

The human rights tribunal was of the view that the applicant made out a prima facie case of discrimination on the basis of sex (pregnancy), contrary to sections 5(1), 10(2) and 9 of the Code and that the respondents failed to prove a non-discriminatory explanation for the precipitous termination of the applicant’s employment. There are certain remedies set out by S. 42.5 of the Human Rights Code, one being monetary compensation. Compensation was a big issue in this hearing given that the employer prohibited the employee from satisfying “fresh hours” as required for HRDC in order to qualify for maternity leave benefits.

The applicant testified that after she was terminated from the respondents’ salons, she attempted to look for work, but did not have any success. She attributed her lack of success, in part, to the fact that her pregnancy was increasingly obvious to any potential employer. She had two interviews, but at each of these interviews, testified that the interviewers expressed their opinion that the physical nature of the work would be dangerous for a pregnant woman. At seven months pregnant, she gave up her job search.

The tribunal noted that “With no insurable hours, she was ineligible for maternity and parental benefits following the birth of her son.” As pointed out in paragraph 74 of Dodds v. 2008573 Ontario Inc., 2007 HRTO 17 (CanLII): “It is reasonably foreseeable that a pregnant woman will be unable to find alternate employment during her pregnancy to make up for any shortfall in eligibility requirements to qualify for full maternity leave and parental benefits.” The tribunal found that with respect to the maternity and parental leave, the applicant would have met the threshold for eligibility had she continued to work with the respondents until her due date. The applicant testified that she was planning to and was physically able to work until her due date. The tribunal found that these benefits would have been payable at 55% of the applicant’s averaged insured earnings (i.e., $242 / week) for 50 weeks. The gross total loss of benefits is $12,100.00. Employers – please don’t interfere with the employment of a pregnant woman without the advice and opinion of an employment lawyer. A small business like the respondents obviously did not foresee the issue of discrimination having a probably impact on Ms. Maciel not qualifying for maternity leave benefits. If you are a small business like the repondents you need to protect yourself by learning your rights.

You can contact Matt Lalande here for more information and you can read a copy of the decision below.

The Ontario Human Rights Tribunal is responsible for dealing with applications brought to it by individuals, groups of individuals, organizations or the commission with respect to alleged infringement of the Ontario Human Rights Code. This has been in place since following Bill 107 being proclaimed in force on June 30, 2008.

Employees have one year from the date of the alleged discrimination from which the application relates to apply to the Tribunal.  Employers be careful – the old limitation was 6 months.

Haber & Associates does workplace and HR training.  If you require any assistance responding to a complaint, or if you would like to be advised of any Human Rights issue give us a call.

Here is a good case that tells this story. In the Ontario Human Rights Tribunal case of Chan v. Tai-Pain Vacations, Ms. Chan, alleged that her former employer, Tai-Pan Vacations discriminated against her for having filed a previous complaint with the Ontario Human Rights Commission and on the basis of her sex. It went a little like this.

She told Tai-Pan in December of 2005 that she was pregnant.  They seemed to have a problem with the news and the employment relationship took a nosedive.  Eventually she complained to the Human Rights Commission in 2006. It was alleged that because she complained, the company made her employment unpleasant. It was alleged that they subjected her  to a number of reprisals, threats of reprisals and further discriminatory acts based on her interest in becoming pregnant.   The company and her haddisagreements. She has a miscarriage and at some point, she advises the company that she wants to get pregnant again. Before it hit the board, the complaint was settled by the parties (approximately one year later on March 12, 2007).  She is paid a settlement. Chan then thinks things are well and over but on April 3, 2007,  approximately three weeks after this settlement, Tai-Pan terminated her.  Ms. Chan contended that her termination was in reprisal for her earlier complaint and also to her stated intention to become pregnant again and thus her termination is an act of discrimination based on sex. Tai Pan denied that Ms. Chan’s termination was an act of reprisal or discrimination based on sex.  The respondent submitted that Ms. Chan’s termination, which was without cause, was within Tai Pan’s prerogative given that the company met its obligations under relevant employment law.

How did the evidence come out?

Tai Pan is a travel company that operates in the Metropolitan Toronto area.  The company’s principal business is operating tour buses to the Casino Rama casino.   Ms. Chan’s duties included accompanying customers to Casino Rama, facilitating customers’ entry into the casino and generally being hospitable in a manner that would help build customer loyalty to Tai Pan.  In December 2005 the complainant told Tai Pan management that she was pregnant.  Ms. Chan asked for a transfer to an office position but was told by the respondent that no such positions were available and that she would have to be put on unpaid leave.  In February 2006 the complainant suffered a miscarriage and shortly thereafter returned to work in her CSR position.  She filed her first complaint with the Commission on February 24, 2008 alleging that Tai Pan’s decision to put her on unpaid leave during the period of December 2005 to February 2006 was discriminatory.   This complaint was settled on March 12, 2007 In her evidence, Ms. Chan provided a history of her overall work experience at Tai Pan which included a detailed account of the seven specific actions, Six of  which took place between the filing and settling of her first complaint .

The incidents were as follows:

1)  the vice president of Tai Pan asked Ms. Chan why she had made her human rights complaint and it was alleged that she told Ms. Chan that it did not make sense for Ms. Chan to work for the company, and that if the company was to raise wages it would not include the complainant.  Ms. Chan testified that she told Fiona Tran that she planned to get pregnant again and asked whether the company would again prevent her from working.  Fiona Tran allegedly stated that Ms. Chan would not be allowed to work if she became pregnant.
2) She was left out of the annual bonus in 2006, for the first time.
3) she also did not receive a salary increase in either 2006 or 2007, for the first time.
4) The complainant testified that after her first complaint in 2006 she was denied access to a series of regular parties held by Casino Rama for preferred customers which she attended in the past.
5) The company demanded a doctor’s note with respect to her pregnancy issues. The company did not do so in the past.
6) The president told her that if she withdrew her human rights complaint she would receive her bonus and salary increase.
7) The complainant testified that she settled her first complaint on March 12, 2007.  When shortly afterwards she was not issued a work schedule she suspected that she was about to be terminated. She was fired on April 7th 2007. She was told by the company that it had the discretion to terminate anyone as long as it paid.

These facts tell a very serious violation of S.8 of the human rights code.   Section 8 states that : Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

The intention of section 8 of the Human Rights Code is to allow complainants to pursue their rights under the Code without fear of reprisal for doing so. The complainant argued that there was prima facie evidence that the termination was an intended reprisal for Ms. Chan’s past efforts to enforce her rights under the Code that was found in her termination letter stating that it was impossible for them to continue the employment relationship because of the past issues. The board was satisfied that a reasonable inference could be drawn from the language of Ms. Kwan’s May 14, 2007 letter in that Ms. Chan was terminated in response to her having filed a complaint with the Commission.  As such this is, on its face, prima facie evidence, that Ms. Chan’s termination was an act of reprisal.

Decision
The board found that the respondent discriminated against the complainant when it terminated her in March 2008.  This termination was, in their opinion, a deliberate act of reprisal for Ms. Chan’s earlier complaint and the respondent not liking the efforts it had to make to respond to this complaint.  The company’s decision to terminate the complainant a mere three weeks after Ms. Chan’s first complaint was settled goes beyond being willfully blind or reckless, it was a calculated retaliation.  The respondent mistakenly believed it could terminate Ms. Chan with impunity.  The Tribunal found that awarding $15,000 to the complainant for monetary compensation was appropriate, plus another 42K in lost wages.   This was a very substantial award and one they found to be warranted given the serious nature of the discrimination and the humiliation anad loss of dignity suffered by the complainant.

This board’s words were very severe in this case. “The company’s decision to terminate the complainant a mere three weeks after Ms. Chan’s first complaint was settled goes beyond being willfully blind or reckless, it was a calculated retaliation.” Barbara Hall, Chief Commissioner noted that “The Tribunal’s decision reflects the seriousness of this case,” said . “Employers need to understand that they cannot punish employees who pursue their rights under the Human Rights Code,” she said.  This case tells a very serious lesson.  If you have an employee that suddenly hit the human rights tribunal or the labour board, or seeks legal advice on a matter – try and promptly fix the situation.  Don’t lose your temper, don’t announce it, don’t make light of it with anyone outside of top management and don’t speak to that employee about it alone. Don’t do anything to aggravate the situation. Employees have a right to go to the Human Rights tribunal no matter what you say or do. It is a civil right. When you start interfering with their civil rights and liberties you will face a S.8 argument, which the employee has to prove, but if he/she does like in this case, you may want to talk to your bank manager.

I am a commonsensical lawyer. Fix the situation and fast. Fix the relationship. Fix the problem. Don’t make it worse. Your employee is complaining for a reason. A human rights complaint is a complaint of last resort, unless the employee is half bent. When I hear these situations it’s hard to make me believe that you didn’t see this coming, and more so, why it wasn’t taken care of before hand.

Be very careful. The Human Rights Tribunal and the Labour Board will be like a sledgehammer on a shingle if you are or allow any discrimination or violate the major employment law.

Matt Lalande
Hamilton Employment Lawyer

After the application was filed, the Tribunal sent the applicant a Notice of Intent to Dismiss because the Application did not appear to allege a ground or area of discrimination under the Code and therefore does not appear to raise an issue the Tribunal can resolve.

The Tribunal invited the applicant to make written submissions explaining how the Application is within the Tribunal’s jurisdiction. The applicant did not deliver any submissions and the time for doing so has now passed.

It is important to noted that Section 8 of the Code provides as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

On its face, the Application did not allege any facts which come within the scope of section 8.

The applicant did not allege that he attempted to claim or enforce his rights under the Code, that he instituted or participated in proceedings under the Code or that he refused to infringe the right of another person under the Code.

Remember, the jurisdiction of Human Rights is based upon the Code, which prohibits discrimination in goods, services and facilities, including educational services, on the basis of protected grounds listed in the Code. It does not have a general power to inquire into educational relationships and difficulties that may occur in those relationships.

The applicant did not provide a basis for his claim of reprisal that comes within the meaning of the Code, nor did he set out any other ground of discrimination or basis upon which he alleges the Code was violated. Accordingly, the Tribunal did not have  jurisdiction over the Application and they tossed his application.