I've been asked by a number of people to comment on the recent decision from the Human Rights Tribunal of Ontario ("HRTO") in Rocha v. Pardons and Waivers of Canada. This case is one of the first decisions in Ontario addressing the legal rights of persons providing unpaid labour to an employer. This blog post is going to provide a comprehensive background on the facts in the case, overview what happened within the litigation, and then critique the extremely problematic approach the HRTO has adopted.
The Background
So what are the facts in the case? Essentially, this case is a straight-up age discrimination claim with an unpaid labour twist. The applicant in the case, Lina Rocha ("Rocha"), was completing a pre-employment support program with MicroSkills. To successfully graduate from the Microskills program Rocha was required to obtain a six-week unpaid work placement at an employer.
Rocha applied for a "personal assistant/receptionist" position with Pardons and Waivers of Canada ("Pardons") that she found on Kijiji. The advertisement read "[l]ooking for a personal assistant/receptionist for a sales associate at Pardons and Waivers of Canada. Basic admin duties, some accounting and answering the phone. $11/hours, Approx. 30 hrs/week." Rocha then received a response from Julie Hosson ("Hosson"), an employee of Pardons, after which a series of emails were exchanged discussing the possibility of a placement with Pardons. Rocha's initial application indicated that she was graduating from MicroSkills, she was looking for a "placement" or employment, and that she was willing to work "for 6 weeks free". Hosson then inquired via email "what field is the placement for? Is this for high school or University".
Hosson then invited Rocha for an interview via an email, but then followed-up with a telephone call asking Rocha how old she was. Rocha responded that she was forty-five years old to which Hosson said she would have to confirm the interview with her boss. Shortly after this exchange Rocha received an email from Hosson stating "I've been advised that a placement is not suitable for this position but I am looking [unreadable] comes up". Rocha understood that she was not being considered for this position.
Rocha felt that she had been discriminated against by Pardons' actions and filed an application with the HRTO in 2011. She alleged that Pardons had breached ss. 5 and 23(2) of Ontario's Human Rights Code ("the Code"). S. 5 deals with discrimination on the basic of prohibited grounds in the context of employment, while s. 23(2) deals asking questions about prohibited grounds in the context of job applications.
The Litigation
There were three decisions from the HRTO in this case. The decision of July 31, 2012, is mostly procedural and deals with Pardons' failure to file a response. The decision of November 29, 2012 ("November 29 decision"), deals with the substantive legal issues. The decision of April 3, 2013 ("April 3 Decision"), explicitly deals with the issue of remedies. I'm dealing with the later two decisions in this blog post and specifically with the treatment of the issue of unpaid labour.
It should be noted that this case is interesting in that it deals with an older worker who is re-entering the labour market after an absence. A situation which placed the worker in a position of heightened vulnerability to discrimination. Rocha was clearly facing intersecting forms of oppression in re-entering the labour market: she is a woman, coming from a lower socio-economic background, and is a older worker with a tenuous attachment to the labour market.
The November 29 Decision
The November 29 decision found that if Rocha had worked for Pardons it would have been considered "employment" under the Code regardless of whether the work was paid or volunteer. This reasoning flows from a well defined line of cases: Brown v. Robinson (1989), 10 C.H.R.R. D/6286 (B.C.C.H.R.); Thambirajah v. Girl Guides of Canada (1995), 26 C.H.R.R. D/1; and, Nixon v. Vancouver Rape Relief Society (No. 2) (2002), 42 C.H.R.R. D/20. It must be understood that the instant case was relatively novel for Ontario in the context of human rights law. The key takeaway from this decision being that interns, students, unpaid trainees, and apprentices are clearly covered under the Code - this approach is consistent with the broad goal of the Code to ensure that Ontario citizens have human rights protection.
The decision found that Rocha had been discriminated against by Pardons; furthermore, it also held that Rocha hadn't provided enough information with respect to what remedy she wanted beyond the $3,960.00 requested for lost wages and that a teleconference would be held to hear further evidence on the remedy issue.
The April 3 Decision
The April 3 decision is somewhat complex, but here's what happens. The decision finds that Rocha lost an opportunity for further employment in that Pardons denied her a job. Three approaches to assessing the quantum of damages arising from the lost of opportunity are reviewed with the third approach being utilized for the decision. The key line of cases in this decision is: Seguin v. Great Blue Heron Charity Casino, 2007 HRTO 33 (CanLII); Dantu v. North Vancouver District Fire Department (1986), 8 C.H.R.R. D/3649; and, McKinnon v. Ontario (Ministry of Correctional Services), [2007] O.H.R.T.D. No. 5. The Seguin decision awarded the applicant 50% of their lost wages. In a similar vein decision finds that Rocha had a 50% chance of continuing in her employment with Pardons past the six week period of unpaid work.
Then the decision states that Rocha had a duty to mitigate her losses by making reasonable efforts to find suitable employment - on this point Rocha found similarly situated employment on December 3, 2011, having lost out on seventeen weeks of work and $5,610.00 in wages due to the discrimination. Now in her application Rocha only requested $3,960.00 is compensation for lost wages. The compensation requested was based on a straight calculation (30 hours per week x $11.00 per hour x 12 weeks) and was based on the suggestion of Rocha's supervisor at MicroSkills after the issue of discrimination was discussed.
In the end, the decision orders that Rocha receive $1,815.00 in compensation for the lost opportunity of working for Pardons. This works out to be compensation equivalent to 5 1/2 weeks of employment. The reasoning adopts the 50% discount utilized in the Seguin decision. The decision explicitly subtracts the six weeks that Rocha was willing to work unpaid, stating at paragraph [13] that "[c]ounting from the first full week of August 2012, until December 3, 2012, when she found another job, and subtracting the six unpaid weeks, this would have amounted to eleven weeks of employment."
The reasoning deployed in this decision is a fundamental error of law with extremely serious ramifications going forward for workplace law in Ontario. In actuality, Rocha should have received $2,805.00 for the lost opportunity of working for Pardons rather than the $1,815.00 she was awarded. There should have never been a "discount" for Rocha's willingness to work unpaid for the duration of six weeks.
The decision also awards Rocha $15,000.00 for a violation of her inherent right to be free from discrimination and for injury to her dignity, feelings, and self-respect. This amount is related to the age discrimination that Rocha experienced in Pardons' decision to deny her an interview after learning that she was forty-five years of age.
The Critique
HRTO Vice-Chair Judith Keene penned the decisions in Rocha v. Pardons and Waivers of Canada. She is a highly experienced human rights lawyer and one of the senior members of the HRTO. Therefore, it is surprising that she made such a serious error. What Keene has essentially used judicial fiat to exclude Rocha from the minimum floor of rights contained in the Employment Standards Act, 2000 ("the ESA").
Given that the vast majority of the cases that the HRTO deal with involve discrimination in the context of employment I'm troubled that a basic tenet of workplace law in Ontario (i.e. the impossibility of an employer or employee to contract out of the social minimums contained in the ESA) was either ignored or not understood. The prohibition on contracting out appears at s. 5(1) of the ESA, it reads: "[s]ubject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void." Simply put, Keene lacked the authority to utilize Rocha's willingness to work unpaid for six weeks in limiting the quantum with respect to the lost opportunity award.
Let me explain my reasoning here. Rocha was responding to an advertisement posted by Pardons seeking an employee, she wasn't responding to advertisement seeking a student. The job advertised by Pardons was intended as a paying position involving administration, accounting, and receptionist duties. Rocha does fall under any of the exclusions permitting unpaid labour enumerated under the ss. 1(2) or 3(5) of ESA or s. 2(1) of O. Reg 285/01. Rocha had no ability under the ESA to consent to unpaid labour or contract out of the minimum wage given that the duties correspond with those that an employee is typically paid for in Ontario. Keene provides no legal justification or statutory authority to ground her reasoning in allowing Rocha's hypothetical unpaid labour to go unremunerated.
This is the second decision in little over a year that butchered the part of the award relating to wages for a vulnerable, precariously employed worker. Last January HRTO Vice-Chair Ken Bhattacharjee wrote a disgusting decision that held that an intellectually disabled woman was only entitled to a wage of $1.25 per hour. In effect, Bhattacharjee re-victimized the woman by discriminating against her on the basis of her disability in finding that she was undeserving of the prevailing minimum wage for her labour. Bhattacharjee's deeply problematic decision led to an expensive reconsideration hearing after the Human Rights Legal Support Centre intervened to represent the woman and defend her interests. It's unfortunate that the body tasked with protecting fundamental human rights has taken to regularly issuing deeply flawed decisions that offend the dignity of the very people seeking protection.
Additional Commentary
I have previous written about the intersection of unpaid labour and human rights, see: here, here, here, and here. Professor David Doorey wrote a commentary on the November 29 decision and Doug MacLeod, an employment lawyer, wrote an article discussing the age discrimination aspect of this case. I'm going to write a follow-up this post at some point with a blog post discussing the impact of unpaid labour, returnships, and discrimination on older workers when they are re-entering the labour market.
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