1633092 Ontario Ltd. O/A TOSH Steakhouse and Bar and Haley Rooney

HUMAN RIGHTS TRIBUNAL OF ONTARIO

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B E T W E E N :

Michelle Jaques

Applicant

-and-

1633092 Ontario Ltd.
o/a TOSH Steakhouse and Bar and Haley Rooney

Respondents

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DECISION

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Adjudicator:Daniel Randazzo

Date:March 31, 2016

File Number:2013-14575-I

Citation:2016HRTO403

Indexed as:Jaquesv.1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar

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Introduction

[1]This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, CH.19 as amended (the “Code”), on May 28, 2013,alleging discrimination with respect to employment because of sex (pregnancy).In summary, the applicant alleges that the respondents discriminated againsther byterminating an accommodation plan, failing to accommodate her pregnancy and failing to schedule her for any shifts following her request for accommodation.

BACKGROUND AND EVIDENCE

[2]The Application was filed on May 28, 2013 and was scheduled for hearing on August 12, 2014. Prior to the commencement of the hearing I issued an Interim Decision (2014 HRTO 1195) directing that the Requests for Order During Proceeding (“RFOP”), which included the request to add Ms. Haley Rooney as a personal respondent and the request to have a witness, Ms. Karen McNeilly, testify by teleconference, would be addressed and dealt with at the August 12, 2014 hearing. The RFOP to have a witness, Ms. McNeilly, testify by teleconference encompassed the admissibility of the witness’ affidavit. At the hearing of August 12, 2014, the parties were able to resolve most of the procedural issues that were in dispute. Specifically, the parties agreed to admit into evidence the affidavit of Ms. Karen McNeilly. The issue with respect to adding Ms. Rooney as a personal respondent was not resolved.However by way of an Interim Decision (2014 HRTO 1237), I added Ms. Haley Rooney as a personal respondent.

[3]The hearing was held on January 26 and 27, 2015 and June 15, 2015. I heard from three witnesses:Ms. Michelle Jaques, the applicant, Ms. Haley Rooney, the personal respondent and co-owner of TOSH Steakhouse (“the corporate respondent”) and Ms. Karen McNeilly, a law clerk with the Human Rights Legal Support Centre (“HRLSC”).

[4]The applicant testified that she worked for the corporate respondent for approximately three years. During the period of her employment, the corporate respondent operated a restaurant which was comprised of a “bararea” located on the ground or main floor and a “dining room” located on the second floor. For the first year and half of her employment the applicant worked primarily if not exclusively in the bar area.In October 2011she was moved to the dining room, a move the applicant perceived as a promotion. In February 2013, while employed in the dining room,the applicantadvised, Ms. Janet Forsyth, her General Manager at the time, that she was pregnant. At the beginning of April 2013,at the request of the applicant, the General Manager changed applicant’s shifts from the dining room to the barareato accommodate the applicant’s pregnancy as she was having difficulty managing the stairs to the dining room throughout her shifts in the dining room. The applicant’s initial shift changes, April 5 and 6, 2013, from the dining room to the bar area,were voluntary shift changes agreed to by a co-worker with the knowledge of the General Manager and shift manager. Following the voluntary shift changes, the General Manger began to schedule the applicant in the bararea. The applicant worked in the bar area on April 5 and 6, 2013 (voluntary shift change) and was scheduled by the General Manager and worked in the bararea on April 13, 19 and 20.

[5]On or about April 9, 2013, the General Manager suffered an injury which restricted her mobility and prohibited her from continuing to work for the corporate respondent. As a result,Ms. Rooney, the co-owner, who at the time was on a maternity leave, resumed her role of General Manager and took over scheduling responsibilities. When the applicant arrived at work on April 19, she noticed that the schedule had been changed and that she was no longer scheduled to work downstairs in the bararea but was required to work upstairs in the dining room. She spoke to theshift manager on duty at the time and advised him that she could not work upstairs due to her pregnancy. With the agreement of the shift manager on duty she worked in the bararea (downstairs) for her shift on April 19. She requested Ms. Rooney’s cell phone number but was denied. The applicant came to understand that Ms. Rooney had changed the schedule and that on a go forward basis she would be scheduled to work upstairs in the dining room. In the days that followed the applicant attempted to contact Ms. Rooney but was unable to do so. Eventually on April 26, 2013, she spoke with Ms. Rooney and advised her that she had a doctor’s note confirming her pregnancy and her need for accommodation. She was advised at that time by Ms. Rooney that she did not need to see the doctor’s note and further advised that there were no shifts for her in the bar area but that she could work upstairs in the dining room.

[6]Following the conversation of April 26, 2013, the applicant contacted the HRLSC who had both verbal and written communications with Ms. Rooney. Ultimately, the applicant was not scheduled to work following the exchanges between herself and Ms. Rooney and between the HRLSC and Ms. Rooney.

[7]Ms. Rooney testified that she, along with her husband, was the owner of the corporate respondent. Ms. Rooney was initially the General Manager responsible for the bar areaand dining room. In August 2012, she hired Ms. Janet Forsyth to take over the General Manager role. Ms. Rooney testified that the General Manager was responsible for the overall operations of the restaurant including the responsibility of hiring, firing and scheduling, which included the authority over any requests for scheduling accommodations. During any given shift when the General Manager was not in, the Bartender served as a shift manager. The shift manager did not have the power to hire or fire and did not have authority over scheduling.

[8]With respect to the applicant, Ms. Rooney testified that in October 2011,the applicant was moved from the bar area to the dinning room. This move, which Ms. Rooney describes as a lateral move, was prompted by “awkward” interactions between the applicant and patrons. It was Ms. Rooney’s belief that the applicant’s strengths and weaknesses were better suited for the dining room. The applicant was described by Ms. Rooney as a great employee.

[9]Ms.Rooney worked until September 2012 at which time she left on maternity leave and Ms. Forsyth took over as General Manager. Ms. Rooney had no involvement with the restaurant’s operations from September 2012 to April 8, 2013. During this time Ms. Forsyth was responsible for all hiring, firing, discipline and scheduling, which included responsibility for any requests for scheduling accommodations.

[10]On April 8, 2013, Ms. Rooney, due to Ms. Forsyth’s injury, returned to work. Upon her return, Ms. Rooney changed the schedule and without any knowledge of the applicant’s pregnancy, scheduled the applicant to work upstairs in the dining room. Ms. Rooney testified that she did not learn of the applicant’s pregnancy until April 26, 2013. On April 26, 2013, the applicant called her at approximately 4:50 p.m. to discuss her work schedule and accommodations. Ms. Rooney testified that she was running late and as a result the conversation with the applicant was rushed. During this conversation the applicant advised Ms. Rooney that she worked in the bar area the previous shifts due to her pregnancy and, for the same reasons, she could not work in the dining room on her April 27, 2013 shift or on any shift thereafter. The applicant requested that her April 27, 2013 shift be changed from the dining room to the the bar area and advised Ms. Rooney that she had a medical note confirming her pregnancy and restrictions. Ms. Rooney advised that it was not possible to schedule her in the bar area and that she would find someone to cover applicant’s April 27, 2013 shift in the dining room. Ms. Rooney testified that the decision to cover the applicant’s April 27, 2013 shift was a short-term accommodation with the full intention of making long-term accommodations at a later date.

[11]The applicant attended at the restaurant once on May 1, 2013 to retrieve her tips but did not speak to Ms. Rooney. On May 2, 2013, Ms. Rooney and the applicant had a telephone conversation in which the applicant stated that due to her pregnancy she could not work upstairs in the dining room and that she was medically unfit to use the stairs to the dining room. Ms. Rooney advised the applicant that she could not work in the bar area. Ms. Rooney testified that she needed more information with respect to the applicant’s limitations before she could determine how to accommodate the applicant. Ms. Rooney asked the applicant to come in to discuss the matter however the applicant refused.

[12]On May 9, 2013, Ms. Rooney received a demand letter from Ms. Karen McNeilly, of the HRLSC containing facts which Ms. Rooney believed to be inaccurate and demands which Ms.Rooney took as threatening. With respect to her discussion with Ms. McNeilly, Mr. Rooney testified that she provided reasons, which included operational concerns, the applicant’s interaction with patrons approximately one and a half years prior and company policy as for her determination that applicant could not be accommodated by scheduling her shifts in the bar area. There were email exchanges between the parties after May 9, however they did not meet nor speak directly after this date.

EVIDENCE OF KAREN MCNEILLY

[13]The respondents objected to the applicant’s attempt to call Ms. Karen McNeilly, who is a law clerk with the HRLSC, as a witness and objected to the admission of a client tracking document which had not been previously produced to the respondents. The objection was based upon the grounds that the witness was a law clerk with HRLSC and it was improper, contrary to the rules of practice and procedure and a miscarriage of justice to allow her to testify. Furthermore, the witness had, in December 2013 provided an affidavit stating that applicant called the HRLSC “on or about April 26, 2013”. The respondents had relied upon this information in preparing their case. The applicant was now attempting to introduce a document which would, if accepted into evidence, suggest that the applicant called the HRLSC on a date other than and later than April 26, 2013. After hearing the parties’ submissions, I allowed the witness to testify. I noted that the admissibility of the witnesses’ affidavit, and therefore her testimony with respect to the affidavit, was previously dealt with and that the respondents had,on August 12, 2014,consented to the admission of the affidavit into evidence. With respect to the client tracking document, which had not previously been produced by the applicant, I ruled that the document would not be admitted into evidence. The admission of the document at such a late date would be unfair and highly prejudicial to the respondents, particularly when the respondents had relied upon the affidavit in the preparation of their case. I noted that should the witnesses’ testimony differ from that contained in her previously sworn statement, then the parties would be free to argue the weight and reliability of the witness’ testimony

[14]I note at this juncture that Ms. McNeilly’s testimony did differ from the statements contained in her affidavit. The witness testified that the applicant contacted the HRLSC on April 29th while her affidavit states that the HRLSC was contacted “on or about April 26th” Furthermore, the witness testified that the affidavit, when provided to the respondent in December 2013, attached an incorrect letter as its exhibit. The letter attached to the affidavit contained errors and differed from the actual letter that was sent to the respondent on May 9, 2013. Where the evidence of Ms.McNeilly differed from the evidence of Ms. Rooney, I preferred the evidence of Ms. Rooney and have not taken the testimony of Ms. McNeilly into consideration when making my determinations.

DECISION

[15]For the reason that follow, the Application is granted. The respondents unilaterally and without notice withdrew the accommodation plan that had been put into place by the respondents’ General Manager, failed to accommodate the applicant’s pregnancy and then failed to schedule the applicant for any shifts following the withdrawal of the accommodation plan. These actions taken by the respondents are violations of the Code.

[16]The relevant provisions of theCode are:

5. (1)Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

10. (2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

11. (1)A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a)the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b)it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. R.S.O. 1990, c.H.19, s.11(1).

(2)The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

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

3.An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party out to do to promote compliance with this Act.

[17]It is well established that in an application alleging a violation of the Code, the applicant bears the onus of establishing a prima facie case of discrimination: Ontario Human Rights Commission v. Simpson-Sears Ltd., [1985] 2 SCR 536 (“O’Malley”)at para 28. In establishing discrimination, the ordinary civil standard of proof upon a balance of probabilities applies: Ontario (Human Rights Comm.) v. Etobicoke (Borough), [1982] 1 SCR 202.

[18]In the matter before me the applicant has made three allegations of discriminatory acts:

1.The unilateral termination of the accommodation plan.

2.The failure of the respondents to accommodate the applicant’s pregnancy.

3.The failure of the respondents to schedule the applicant for any shifts following her request for accommodation.

The unilateral termination of the accommodation plan

[19] I accept the applicant’s evidence that her General Manager agreed to and implemented an accommodation plan. The applicant testified that with the General Manager’s and shift manager’s knowledge, she voluntarily made a shift change with a co-worker on April 5 and 6, 2013 that allowed her to work in the bar area and that following her discussions with the General Manager with respect to her pregnancy and need for accommodation, she was scheduledby the General Manager to work in the bar area.This is supported by Ms. Rooney who acknowledged in her testimony that the General Manager was responsible for accommodating shift requests. Furthermore, the work schedules for the period of April 8 to 21, 2013 show the applicant being scheduled the bar area on the main floor. Finally, Ms. Rooney acknowledged and the documents and work schedules confirm, that upon Ms. Rooney’s return to work, she changed the work schedules and moved the applicant from the bar area to the dining room.