Guild Automotive Restorations Inc. v. Pilkey, 2013 ONSC 3129

CITATION: Guild Automotive Restorations Inc. v. Pilkey , 2013 ONSC 3129 DIVISIONAL COURT FILE NO.: 443/12 DATE: 20130531 SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT) RE: GUILD AUTOMOTIVE RESTORATIONS INC. o/a THE GUILD OF AUTOMOTIVE RESTORERS and FRANK MOREA v. CHRISTINA PILKEY and HUMAN RIGHTS TRIBUNAL OF ONTARIO BEFORE: Justices Lederman, Swinton and Harvison Young COUNSEL: Elisabeth Widner and Asha James, for the Applicant Toby Young and Kingsley Laurin, for the Respondent Christina Pilkey Brian Blumenthal, for the Respondent Tribunal HEARD AT TORONTO: May 28, 2013 E N D O R S E M E N T Swinton J.

Introduction [ 1 ] The applicant Guild Automotive Restorations Inc. brings an application for judicial review of a decision of the Human Rights Tribunal (“the Tribunal”) dated August 3, 2012. The Tribunal upheld the respondent Christina Pilkey’s complaint of discrimination on the basis of gender and reprisal for asserting her human rights and awarded her $15,000 for general damages and six months lost wages. The applicant also seeks review of the Tribunal’s refusal to reconsider the initial decision. [ 2 ] For the reasons that follow, I would dismiss the application, as the Tribunal reached a reasonable decision.

The Standard of Review [ 3 ] The parties all agree that the standard of review of the decision is reasonableness (see s. 45.8 of the Human Rights Code , R.S.O. 1990, c. H.19 as amended; Shaw v. Phipps , 2012 ONCA 155 at para. 10 .) [ 4 ] The applicant suggests that the reasonableness and adequacy of the reasons should be assessed in light of the fact that there was no transcript of the proceedings. In my view, there is no heightened obligation on the Tribunal to give a particular type of reasons in the absence of a transcript or a recording.

The task for this Court is to consider the reasons given and to determine whether they provide an

intelligible explanation for the decision and whether the result falls within a range of reasonable, acceptable outcomes, given the facts and the law. Was the finding that gender was a factor in Ms. Pilkey’s discipline unreasonable? [ 5 ] The Tribunal found that gender was a factor in Mr. Taylor’s decision to discipline Ms. Pilkey for swearing. The Tribunal found that “there can be no other explanation for this discipline” than the fact that Ms.

Pilkey is a woman. [ 6 ] The applicant argues that the Tribunal’s decision on this issue was unreasonable because the Tribunal failed to take into account a number of factors: • The context in which the swearing took place, • The fact that Ms. Pilkey had sworn previously and not been disciplined, • The fact that Mr.

Taylor, the new manager, was more rigorous in his management style, and • The fact that a male employee had been terminated because of an incident that included swearing. [ 7 ] As well, the applicant argues that the Tribunal unreasonably refused to make a finding as to the nature of the relationship between Ms. Pilkey and the former manager, Mr. D’ Innocenzo, and should have made a finding of the exact words used by Ms. Pilkey on October 29, 2009. [ 8 ] There was no need for the Tribunal to make a finding about the precise nature of the relationship between Ms. Pilkey and Mr.

D’Innocenzo in order to come to a conclusion about the presence of gender discrimination when Ms. Pilkey was disciplined for swearing. The swearing incident involved the conduct of Mr. Taylor, the new supervisor, and not Mr. D’Innocenzo. [ 9 ] Nor was there a need for the Tribunal to resolve the dispute between Ms. Pilkey and Mr. Taylor as to which word she used. It is clear that she used a vulgar word that describes a female body part. [ 10 ] The Tribunal found that Ms. Pilkey’s comment was directed at herself and not at her supervisor, Mr.

Taylor, and thus the Tribunal rejected the assertion that she was insubordinate. The Tribunal also found that swearing was common in this workplace (even Mr. Taylor engaged in this practice). However, no male employee had been disciplined for swearing. Ultimately, the Tribunal rejected Mr. Taylor`s explanation that Mr. Taylor disciplined Ms. Pilkey because she used vulgar language to refer to a body part. [ 11 ] The applicant points to an incident where a male employee was terminated for swearing.

However, the facts of that dismissal are different, as the employee wrote the swear words on the dust of a car and the content was clearly directed at the previous supervisor, Mr. D’Innocenzo. Thus, the case involving the male employee was a case of insubordination. The Tribunal found no insubordination here. That is a finding of fact it could make on the evidence before it. [ 12 ] Given its findings of fact, the Tribunal concluded that gender was a factor in the decision to discipline Ms. Pilkey for the words she used.

That was a conclusion that the Tribunal could reach on the evidence, and its reasoning process is intelligible and transparent. I would not give effect to this ground for judicial review. Was the finding of reprisal unreasonable? [ 13 ] The applicant argues that the finding that there was a reprisal was unreasonable because the Tribunal did not articulate the need for intention on the part of the applicant. [ 14 ]

Section 8 of the Code reads: 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. [ 15 ] Intent to retaliate is a requirement for a finding that s. 8 has been contravened. However, intent can be inferred from the evidence ( Jones v. Amway of Canada Ltd. , [2002] O.J. No. 1504 (Div. Ct.) at para. 11 ). [ 16 ] Nowhere in the reasons does the Tribunal mention the need for intention.

Instead the Tribunal states (at para. 70), “To prove reprisal, an applicant must show a link between the invocation of rights and the retaliatory act being complained of”, and then cites Smith v. Menzies Chrysler , 2009 HRTO 1936 at para. 162 . I note that Smith , in the particular paragraph cited, states that intention can be inferred for purposes of finding a reprisal. [ 17 ] The Tribunal made a number of key findings. It found that the applicant had asserted her human rights on at least four occasions in October 2009, including on October 29 and October 30 (the day on which she was dismissed).

The Tribunal found that Mr. Taylor’s decision to terminate the employment was sudden and made without consultation or reflection. Apparently, he was exasperated by Ms. Pilkey’s complaint about sex discrimination. The Tribunal also found that there was no malicious purpose in Ms. Pilkey’s assertion of her human rights. [ 18 ] The Tribunal found Ms. Pilkey’s employment was terminated on October 30. The issue was whether this was done as a reprisal. [ 19 ] The Tribunal then considered the reasons for termination given by Mr. Taylor, and found that they were not supported by the evidence. For example, Ms.

Pilkey had not been insubordinate when she swore; there was not a history of “constant insubordination”; and there were not “multiple warnings” issued to her. The Tribunal found that the only warning she had received was for lateness. [ 20 ] The Tribunal tied the termination directly to Ms. Pilkey’s refusal to sign the written warning, stating at para. 77 of the reasons:

It was this act of perceived insubordination that became the catalyst for her termination. Her insubordination was her refusal to accept discipline that she believed was discriminatory. I therefore find the applicant was reprised [ sic ] against for claiming her human rights contrary to

section 8 of the Code. [ 21 ] It would have been preferable for the Tribunal to set out more precisely the requirements to find a contravention of s. 8 of the Code, including the requirement to prove intent. However, when the reasons on this issue are read as a whole, it is apparent that the Tribunal did apply the correct test and reasonably inferred an intent to retaliate against Ms. Pilkey when Mr. Taylor terminated her employment because she insisted on her rights under the Code. Therefore, I would not give effect to this ground of review.

Was the damage award unreasonable? [ 22 ] The Tribunal awarded $15,000 for damages for injury to dignity, feelings and self-respect. The Tribunal has a broad discretion in determining remedies, including the appropriate quantum of damages (Code, s. 45.2(1)). [ 23 ] The award was for both the discriminatory discipline and the retaliation. In making its decision, the Tribunal considered the vulnerability of Ms. Pilkey, the employer’s knowledge of that vulnerability, and the impact of the termination of her employment.

It considered various factors such as humiliation, hurt feelings and loss of self-respect. [ 24 ] I see no error in failing to reduce the damages awarded because of Ms. Pilkey’s conduct, as there was no finding by the Tribunal that she contributed to the conflict with Mr. Taylor, as in Abdallah v. Thames Valley District School Board , 2008 HRTO 230 . In the circumstances, the award was within a range of reasonable outcomes and the result was explained adequately. [ 25 ] With respect to the lost wages, the Tribunal concluded that Ms.

Pilkey would not continue to work with the applicant in the long term, either because of termination or resignation. It chose a period of six months as the outside limit of her continued employment. While the award may be generous, again, it cannot be said to be unreasonable. Conclusion [ 26 ] For these reasons, the application for judicial review is dismissed. [ 27 ] The Tribunal does not seek costs and none are awarded. [ 28 ] The applicant shall pay costs to Ms. Pilkey in the amount of $10,000, an amount agreed upon between counsel for the applicant and counsel for Ms.

Pilkey. _____________________________ Swinton J. _____________________________ Lederman J. _____________________________ Harvison Young J. Released: May 31, 2013