Case Background
In Khanom v. Idealogic PDS Inc., 2024 ONSC 5131, which arose out of a motion for default judgment, the Plaintiff, whose job title is undisclosed, requested to work from home during a government-imposed stay-at-home order. The Plaintiff’s duties were primarily computer-based. The Plaintiff conveyed that her request derived from concerns regarding her diabetic husband’s health, as he was particularly vulnerable to health risks posed by COVID-19. Despite awareness of these motivations, the Defendant refused the request and subsequently terminated the Plaintiff’s employment.
The Plaintiff Was Wrongfully Dismissed
Justice Parghi ruled the Defendant lacked just cause to terminate the Plaintiff as the request to work from home edid not constitute cause.
Given the Plaintiff’s age (undisclosed), 13.5 years of service, and sincere efforts to mitigate damages, Justice Parghi awarded 14 months’ salary in the amount of $36,979.02 as compensation for the wrongful dismissal of the Plaintiff.
Violation of the Human Rights Code
In addition to her wrongful dismissal claim, the Plaintiff argued that her termination violated Section 12 of the Human Rights Code of Ontario (the “Code”). This section states that a right under the Code is infringed where discrimination occurs because of one’s relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.
In this case, the Plaintiff alleged that their termination and lack of accommodation were based on her relationship with her husband. Her husband has diabetes which qualifies as a disability under the Code.
Section 12 Test
To substantiate a claim under Section 12, an employee must prove, on a balance of probabilities, that their termination or lack of accommodation was "because of" or “based on” their relationship with someone identified by a prohibited ground of discrimination. The relationship itself must only have been a factor influencing the employer’s decision.
It is important to note that the employee does not need to prove that the employer has a particular animus against individuals with disabilities or that the employer intended to discriminate. The Code is concerned with the impact of conduct and not its underlying intent.
Application of the Test
The Plaintiff was successful in meeting the Section 12 test. The Plaintiff requested to work from home due to her husband’s disability. The Defendant terminated the Plaintiff due to this request while fully aware of the motivations behind the request. Therefore, the termination was because of the Plaintiff’s relationship with a disabled individual and in direct contravention of Section 12 of the Code, which prohibits discrimination on such grounds.
Based on a consideration of the Plaintiff’s hurt feelings, humiliation, loss of dignity and self-respect (a.k.a. “General Damages”), Justice Parghi awarded $15,000 for the Defendant’s breach of its obligations under the Code.
Takeaways
- Section 12 Damages
The author was unable to find any Ontario decisions where a court awarded a Pplaintiff damages for hurt feelings, humiliation, loss of dignity and self respect with a respect to a breach of s. 12 of the Code. That said, readers should exercise caution given that this decision arises out of a motion for default judgment. It is possible that it could one day be set aside if the defendant brings the requisite motion.
- Inconvenience Damages
In addition to the damages awarded under the Code, which were considered in the assessment of aggravated damages, the Plaintiff was awarded $3,000 in aggravated damages and $1,000 in "inconvenience" damages.
The inconvenience damages were awarded due to an incorrectly completed Record of Employment (“ROE”) which delayed the Plaintiff’s ability to apply for Employment Insurance benefits.
Of note, the authority for the inconvenience damages was a Small Claims employment law case (Ellis v. Artsmarketing Services Inc, 2017 CanLII 51563) which appears to have referenced non-employment law cases as an authority for such damages. In Ellis, aggravated damages were considered but not awarded due to insufficient evidence. In essence, inconvenience damages were utilized to circumvent the aggravated damaged evidentiary burden.
In Khanom, the use of inconvenience damages for an unsatisfactory ROE seems somewhat redundant given that similar misconduct could be addressed through established damage avenues. For instance, in Pohl v. Hudson’s Bay Company, 2022 ONSC 5230, punitive damages were awarded for failure to provide a timely and accurate record of employment.
Overcomplicating the calculation of damages may risk either overcompensation or insufficient compensation under established heads of damages.
Nevertheless, for employees, Khanom sets a precedent for seeking inconvenience damages for improperly completed . For employers, this case underscores the importance of ensuring that ROEs are accurately, and quickly completed to avoid potential liability.
- No Reference to Age & Type of Employment
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is no reference to both the Plaintiff's age and job title in this decision. The lack of information regarding these two Bardal factors means that Khanom is not particularly useful for common law reasonable notice purposes. This is unfortunate given that, here, someone making just over $30,000.00 per year with 13.5 years of service was awarded 14 months. Yet not knowing the plaintiff’s age and type of employment, or even if she was employed full or part time, means that we are lacking context with respect to the notice period award.
The author wishes to thank the L&E Law Section Newsletter Editor, Mitchell Rose, for his insights and support in developing this article.
ABOUT THE AUTHOR
Tyler Sparrow-Mungal is a third-year law student at the Lincoln Alexander School of Law with a keen interest in pursuing a career in labour and employment law. He can be reached at tyler.sparrow@torontomu.ca.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.