Meeting 18: Discrimination, Hiring and Records Management

Summary:

Cenanovic v. 2332489 Ontario Inc. operating as the Bourbon St. Grill and Weiwei Zhu, 2014 HRTO 1811 (CanLII)

On November 15, 2013 the individual respondent, Weiwei Zhu posted an ad on Kijiji for full-time and part-time female servers. The ad read as follows:

(Female Only)

We are looking for full and part-time server (with strong customer service skill. Must be to deal with customers in a fast friendly and efficient manner.

Please send your resume with pic and qualified candidate will be called for interview (para 7).

On November 16, 2013 the applicant, Mr. Cenanovic, replied to the kijiji ad with his resume. On November 17, 2013 the applicant conducted an internet search for human rights lawyers. On November 18, 2013 the applicant called and tape recorded a conversation with Mr. Weiwei. In this conversation Mr. Weiwei reaffirmed his commitment to looking only for female servers. Also on November 18, 2013 the applicant met with Mr. De Bousquet, his legal counsel. This sequence of events is important to the finding rendered in this case. In this case it was found that based on the express wording of the job ad, that the respondents contravened sections 5 and 23(1) of the Code. It was not however found that Mr. Cenanovic was denied the opportunity to be considered for this job because of gender. The reasons provided for this finding were as follows:

1. In relation to this particular job advertisement, no one was hired. Instead an already existing employee, Mr. Li filled the vacancy
    
2. Although the written and verbal intent was to hire a female server the restaurant instead hired Mr. Li, a man.
    
3. In this case there is insufficient evidence to establish that the respondents received the applicant’s job application.

In this case the adjudicator was not convinced that the applicant’s job application was bona fide (see timeline above).

Questions to be Determined:

1. Did the respondents, contravene sections 5 and 23(1) of the Code when they posted a job ad on Kijiji for a server that stated “female only”?
    
2. Did the applicant, Mr. Cenanovic, establish that he was denied the opportunity to be considered for this job because of his gender?

Findings:

1. Did the respondents, contravene sections 5 and 23(1) of the Code when they posted a job ad on Kijiji for a server that stated “female only”?
   
   YES
    
2. Did the applicant, Mr. Cenanovic, establish that he was denied the opportunity to be considered for this job because of his gender?
   
   NO

Reasoning:

1. In this case there was no dispute that the respondents posted a job ad on Kijiji on November 15, 2013 looking for female servers. In defense of the ad, the individual respondent indicated that his command of the English language is very weak and that he copied and pasted from another Kijiji ad. In this case the individual respondent’s evidence was not accepted for a number of reasons as outlined below.
   
   I do not accept the individual respondent’s evidence for a number of reasons. One, the job ad asked for a picture of the job applicant. In my view, a picture is not necessary to discern an applicant’s job experience and customer service skills. Two, the job ad stated expressly that only females were to apply. Although the applicant’s written English may be weak, he was fluent enough to know the meaning of these words. Three, when the applicant called the individual respondent on November 18, 2013, the individual respondent stated repeatedly that he was looking for females only. Four, in their Response to the Application, the respondents stated the following:
   
   It is my own experiences, sometimes the patrons especially the aged patrons like to talk to female servers. It is my observation and experience that some female servers are more attentive and easy to talk. It is undeniable that in most of companies or food industries, the servers, the front desk receptionists are female. It is not a gender discrimination at all.
   
   Since Evral left, we received many complaints from the patrons asking where Evral was. It is also my own experiences that I was not good for being a server. Sometimes I did not attend to some small details. As such, I honestly planned to hire a female server to replace Evral.
   
   I posed a job opening in Kjiji seeking a female server. I honestly wished to hire a female server to replace Evral. I honestly believed that I could post the job opinion for a female server (para 28).
   
   As stated above in this case the applicant, Mr. Cenanovic, did not establish that he was denied the opportunity to be considered for this job because of his gender. The reasons provided for this finding were as follows:

1. In relation to this particular job advertisement no one was hired. Instead an already existing employee, Mr. Li filled the vacancy
   
   In my view, the applicant has failed to establish that his job application was not considered because of his gender for the following reasons. One, although the respondents indicated that they intended to hire a server, they did not hire anyone in    response to the job ad because Mr. Li was hired. I accept the individual respondent’s evidence in this regard and it is supported by the payroll records that were filed. Once Mr. Li was hired, the respondents’ staffing complement of two part-time servers was filled (para 41).
    
2. Although the written and verbal intent was to hire a female server the restaurant instead hired Mr. Li, a man.
   
   Two, although the respondents indicated an intention to hire a female server in the job ad and during the taped telephone conversation between the individual respondent and the applicant, the respondents hired Mr. Li, a male employee (para 42).
    
3. In this case there is insufficient evidence to establish that the respondents received the applicant’s job application.
   
   Three, there is insufficient evidence to establish that the respondents received the applicant’s job application. While the applicant produced evidence of his job application to Kijiji, there is no evidence that Kijiji sent it to the respondents. Although the applicant took steps to identify the restaurant and its owner, he did not apply to the restaurant directly, notwithstanding his evidence that he applied for jobs in this way (para 43).
    
4. In this case the adjudicator was not convinced that the applicant’s job application was bona fide (see timeline above).
   
   In this case, there are several reasons to doubt the sincerity of the applicant’s job application. The applicant has never worked in a fast-food restaurant. He has worked as a bartender or server in restaurants; working in a food court is very different. Although the applicant testified that he applied to more than 50 jobs through the internet and by dropping off resumes at restaurants and bars, there is no documentary evidence of the applicant’s job hunt prior to November 2013, the period of time that he was ostensibly looking. Within 48 hours of responding to the job ad on Kijiji, the applicant took steps to retain a lawyer. This suggests the applicant’s primary concern was the content of the ad, rather than being denied consideration for the job. Finally, I am concerned about Mr. De Bousquet’s communications with the individual respondent and his message that he would owe “a lot of money”. This raises the question in my mind regarding the purpose of filing the Application (para 44).

Remedy:

Cenanovic v. 2332489 Ontario Inc. operating as the Bourbon St. Grill and Weiwei Zhu, 2015 HRTO 833 (CanLII)

In this case the applicant requested $25,000 in monetary compensation in addition to an order requiring the respondents to retain an expert in human rights law to assist them in revising policies and procedures and provide human rights training. In addition the applicant requested an order requiring the respondents to post a copy of the Code beside the food permit in the restaurant (para 6).

In this case none of these request for remedy were awarded. Dealing with the issue of compensation it was stated that,

The real difficulty with respect to the applicant’s request for compensation is that he failed to give any evidence on the impact of seeing the job ad. The applicant’s evidence dealt mainly with the impact of being rejected for the job. Because the applicant did not give any evidence about the impact of the ad itself, I can only conclude its effect was minimal or non-existent (para 13).

In the absence of sufficient evidence from the applicant concerning the impact of the job ad coupled with the fact that it is questionable as to whether the applicant was a  bona fide job applicant, I am making no award for monetary compensation. The purpose of monetary compensation under section 45.2 of the Code is to remedy the loss arising from the infringement. In this case, there is no evidence that the applicant experienced a loss relating to the posting of the Kijiji ad alone (para 14).

In response to the systemic orders requested by the applicant it was found that these had already been implemented by the respondents and that there was no need for any further orders.

Paquette v. Amaruk Wilderness Corp. and Christopher Fragassi-Bjornsen, 2016 BCHRT 35 (CanLII)

In the summer of 2014 Bethany Paquette applied for an Assistant Guide Internship with Amaruk Wilderness Corp. Ms. Paquette had previous experience working in this area and in particular, had previously worked as a raft guide. From 2009-2014 Ms. Paquette attended Trinity Western University (TWU). While at TWU Ms. Paquette completed a Bachelor of Science Degree in Biology. As part of her time at TWU, Ms. Paquette signed a “Community Covenant”. This “Community Covenant” was essentially a student code of conduct that reflected TWU’s evangelical Christian views. Shortly after applying to work for Amaruk Wilderness Corp., Ms. Paquette received an email from an employee at the company stating that not only did she not meet the minimum requirements for this position, but that she would not be a suitable candidate for the position because of her Christian views (para 35). After having received this email Ms. Paquette responded via email, defending her Christian views (para 36). After Ms. Paquette’s response email she received two further emails from Amaruk Wilderness Corp. In both of these emails further attacks on her education, views on homosexuality and Christianity were lobbied. Ms. Paquette did not respond to these later emails (para 37 and 43). Ultimately, Ms. Paquette was not interviewed for the Assistant Guide Internship position. In this case Ms. Paquette alleged discrimination on the basis of ancestry, religion and political belief. It was found, that “the respondents’ perception of Ms. Paquette’s religious beliefs were a factor in their decision not to hire her to an internship” (para 86). Ms. Paquette established a prima facie case of discrimination in relation to religion that the respondents failed to rebut. In relation to the other grounds, ancestry and political belief, a prima facie case of discrimination was not established.

Question to be Determined:

1. Did the respondents, Amaruk Wilderness Corp. and Christopher Fragassi-Bjornsen, discriminate against the complainant, Bethany Paquette, in the area of employment on the basis of ancestry, religion and political belief, contrary to s. 13 of the Human Rights Code?

Findings:

1. Did the respondents, Amaruk Wilderness Corp. and Christopher Fragassi-Bjornsen, discriminate against the complainant, Bethay Paquette, in the area of employment on the basis of ancestry, religion and political belief, contrary to s. 13 of the Human Rights Code?
   
   YES

(But only in relation to religion. In this case, it was not found that the complainant experienced discrimination on the bases of ancestry or political belief)

Reasoning:

1. In this case it was determined that the respondents, Amaruk Wilderness Corp. and Christopher Fragassi-Bjornsen discriminated against Ms. Paquette on the basis of religion in the area of employment. Looking at the email correspondence between the respondents and Ms. Paquette it was stated that,
   
   The second [email], however, makes a point of taking issue with the principles embraced by TWU and with Christianity on a broad brush basis, which implies that Ms. Paquette’s religious beliefs were a factor in rejecting her employment application. The e-mails following Ms. Paquette’s response of September 13 clearly connect those comments by Mr. Amundsen on September the 11th with Amaruk’s decision to reject Ms. Paquette’s application and expressly confirm that religion was a factor that was considered. Mr. Amundsen on September 14th states:
   
   …This is precisely because we cannot tolerate discrimination, or intolerance, that graduates from Trinity Western University are not welcome in our (Norwegian) company…..(para 68).
   
   Confirming this statement it was said that “both Amaruk, through its employee’s actions, and Mr. Fragassi-Bjornsen have discriminated against Ms. Paquette on the ground of religion by harassing her for her presumed religious beliefs and declining to accept her application for an internship, in part because of those beliefs” (para 88).
   
   In relation to the allegation of discrimination on the basis of political belief it was stated that “while, in my view, it is probable that the sentiments espoused in the Respondents’     emails quality as an attack on Ms. Paquette’s political beliefs, it is not necessary for me to decide that and I decline to do so, particularly in a case where no argument to the contrary has been provided to me” (para 75).
   
   In relation to the allegation of discrimination on the basis of ancestry it was stated that, Ms. Paquette relies upon Mr. Amundsen’s comment on September 14, 2014 that “people who did not agree with your church would be flayed, burnt, roasted, quartered,etc....so you guys have a long history of intolerance. …” I’m not satisfied that this comment was meant to be discriminatory of Ms. Paquette on the basis of her ancestry. Neither do I think it has this effect. Rather, I see this paragraph as a general statement of the historical practice of Ms. Paquette’s religion based upon Mr. Amundsen’s assumptions of Ms. Paquette’s religious beliefs (para 76).
   
   After reviewing previous Tribunal decisions, it was stated that “historical religious practices or one’s religious background do not fall within the rubric of ancestry” (para 77).

Remedy:

I find that the Respondents have violated the provisions of s. 13 of the Code and order that they jointly and severally:

            a. Cease to contravene the Code and refrain from committing the same or similar contraventions;

            b. Pay to Ms. Paquette the sum of $8,500 for injury to dignity and self-respect;

            c. Pay to Ms. Paquette the sum of $661.08 for reimbursement of expenses incurred in this proceeding; and

            d. Pay to Ms. Paquette post-judgement interest on the aforesaid sum.

St. Patrick’s Home of Ottawa Inc. v. Canadian Union of Public Employees, Local 2437, 2016 ONLA 10432 (CanLII)

In this case, the Grievor, Ms. B.A. worked as a Regular Part-Time Dietary Aid at St. Patrick’s Home of Ottawa (St. Pat’s). In addition to working at St. Pat’s the Grievor worked at West End Villa Extendicare (West End Villa) as a part-time Dietary Aid/Dishwasher. In August 2013, St. Pat’s requested that the Grievor provide a medical certificate indicating her fitness and ability to perform her position at St. Pat’s. This request was made in response to the Grievor’s comments that she required accommodation at her other workplace, West End Villa. In September, a medical certificate was supplied to St. Pat’s which read as follows: “pt is able to perform the duties of Dietary Aid at St Pat’s home”. In October of 2013 West End Villa began to question whether the medical restrictions that the Grievor was presenting were legitimate. West End Villa, knowing that the Grievor was employed at St Pat’s, contacted St. Pat’s and requested information about the Grievor’s work situation including whether she had worked her regularly scheduled shifts, whether she had requested any workplace accommodations or provided any work related restrictions, her hours of work and length of shifts and whether St. Pat’s had in fact been accommodating her. After considering this request, St. Pat’s disclosed to West End Villa that the Grievor was not currently being accommodated, had no work-related restrictions and that she was working her regularly scheduled shifts. In addition, St. Pat’s provided a copy of the medical note the Grievor had supplied to West End Villa. After this disclosure of information by St. Pat’s to West End Villa, St. Pat’s apologized to the Grievor indicating that the disclosure of information was wrong. In this case it was found that St. Pat’s breached the Occupational Health and Safety Act in the disclosure of medical information. In addition it was found that the release of the Grievor’s medical information to West End Villa constituted harassment and that the sharing of medical information amounted to the Tort of Invasion of Privacy or Intrusion on Seclusion.

Questions to be Determined:

1. Does the sharing of the medical information amount to a breach of the Occupational Health and Safety Act?
2. Does the release of the medical information constitute Harassment?
3. Does the sharing of the medical information amount to the Tort of Invasion of Privacy or Intrusion on Seclusion?

Findings:

1. Does the sharing of the medical information amount to a breach of the Occupational Health and Safety Act?
   
   YES
    
2. Does the release of the medical information constitute Harassment?
   
   YES
    
3. Does the sharing of the medical information amount to the Tort of Invasion of Privacy or Intrusion on Seclusion?
   
   YES

Reasoning:

1. In this case it was found that the sharing of medical information amounted to a breach of the Occupational Health and Safety Act.
   
   Section 63(1)(f) of this Act specifies that no person shall disclose any information obtained in any medical examination except in a form that will prevent the information from being identified with a particular person or case. The copy of the note that this Employer gave to West End Villa contained medical information from the Grievor’s doctor that clearly identified the Grievor. Further, section 62(2) of the Act mandates that no employer shall seek to gain access to a health record concerning a worker without the worker’s written consent, except by an order of the court or other tribunal or in order to comply with another statute. The Grievor gave no consent to the release of the information or note and West End Villa neither requested the note nor had any legal authorization to receive it. Since West End Villa had no right to seek the Grievor’s health information, this Employer had no right to provide it (p. 14).
    
2. In this case it was found that the release of medical information constituted harassment under the definitions provided in the collective agreement.
   
   The release of medical information about one’s personal health, regardless of the contents of the note, is objectively offensive and embarrassing. It can also cause humiliation. It is not sufficient for this Employer to say that the contents of the note in question do not disclose any medical conditions that would stigmatize or cause embarrassment to a reasonable person. Any medical information is personal, private and must remain confidential. The nature and extent of information that may be revealed in a medical note may have a bearing on the remedy available when there has been improper disclosure, but the disclosure of personal medical information of any kind is very disrespectful and offensive and therefore amounts to harassment as defined by these parties in this Collective Agreement (p. 14-15).
    
3. In this case it was determined that the sharing of medical information amounted to the Tort of Invasion of Privacy or Intrusion on Seclusion.
   
   The Agreed Facts reveal that although this Employer’s Human Resources department and contractor acted in the honest belief that they were doing no wrong, the release of medical information was done deliberately and done without regard to the Employer’s Confidentiality Policy and without seeking legal advice. Therefore, it was reckless and improper. This was an intrusion into the Grievor’s private medical affairs. Any reasonable person would be offended by such conduct and would suffer distress as a result. Accordingly, the elements of “intrusion on seclusion” or invasion of privacy have been established. However, the Court of Appeal also made it clear that such a finding will not normally result in significant monetary damages (p. 16).

Remedy:

1. The Employer is ordered to require any of its contractors or agents that have any interaction with residents or staff to abide by its Confidentiality Policy and to sign its Confidentiality Agreement;
    
2. I declare that by disclosing the Grievor’s confidential medical information without her consent, the Employer breached the Collective Agreement, the Occupational Health and Safety Act and committed the tort of Intrusion on Seclusion;
    
3. The Employer is ordered to comply with and require compliance with its Confidentiality Policy; and
    
4. The Grievor shall be paid the sum of $1,000.00 as damages as a result of the above.