Human Rights Office

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Human Rights Office

Donna Giguere and Ontario Human Rights Commission v. Popeye Restaurant and Viola Landry 2008 HRTO 2 (CanLII)

Summary:

Ms. Giguere worked as a waitress at Popeye Restaurant in Geraldton, ON. Ms. Giguere was hired by the respondent, Viola Landry in early April, 2004. At the time of hiring Ms. Giguere disclosed to Ms. Landry that her common-law spouse was HIV-positive. Ms. Landry indicated that this was not a problem. On April 20, 2004 Ms. Giguere’s employment was terminated.  Ms. Giguere alleged that the termination of her employment was a result of customer complaints related to her common-law spouse and concerns that Ms. Giguere had or might contract the AIDS virus. In contrast, Ms. Landry alleged that Ms. Giguere’s employment was terminated as a result of the serious financial problems the restaurant was facing. In this case it was found that the termination of Ms. Giguere’s employment, by Ms. Landry and Popeye Restaurant, did constitute a breach of the Code. In particular, it was found that Ms. Giguere was terminated because of her association with a person with a disability (i.e. her HIV-Positive common-law spouse).

Question(s) to be Determined:

1. Did the termination of Donna Giguere’s employment, by Ms. Landry and Popeye Restaurant, constitute a breach of the Code? 

Findings:

1. Did the termination of Donna Giguere’s employment, by Ms. Landry and Popeye Restaurant, constitute a breach of the Code? 

YES

Reasoning:

In this case the termination of Donna Giguere’s employment, by Ms. Landry and Popeye Restaurant, was ruled a breach of the Code because it was found that Ms. Giguere was terminated because of her association with a person with a disability (i.e. her HIV-Positive common-law spouse). “Ms. Landry reacted out of fear and desperation, notwithstanding her original good intentions in hiring Ms. Giguere. She decided to terminate Ms. Giguere, because, as she wrote in the letter of termination, “if this is going to affect business in this way, I have no other choice but to terminate your job” (para 71). The supremacy of the Code was asserted in the decision. “Businesses are required to comply with the Code. Businesses are not required to comply only when it is economically advantageous or economically neutral. Businesses are required to comply even if they feel there is an economic risk or disadvantage. Economic interests and rights do not trump human rights, unless there is a specific exemption in the legislation” (para 77). 

Remedies:

Although it was found that the respondents violated the Code in terminating Ms. Giguere’s employment on April 20, 2014 no personal remedies were awarded to Ms. Giguere. “In the normal course, I would consider awarding special damages for lost income and general damages for the breach of Ms. Giguere’s right to be free from discrimination. I decline, however, to award any personal remedies to Ms. Giguere. I have found that she did offer money to Ms. MacIvor (a witness) in exchange for providing false testimony before the Tribunal. This is an extremely serious breach of the Tribunal’s process” (para 78). 

Instead of awarding a personal remedy to Ms. Giguere, a public interest remedy was awarded. “In my view, there may well be a need for public education in this community about discrimination against people living with HIV/AIDS. The Tribunal is not in a position to order that remedy. But there are organizations that do support individuals living with HIV/AIDS, who work to raise awareness in Geraldton and to provide community education. In that respect, I believe that it would be an appropriate remedy for Ms. Landry to be required to provide assistance in those efforts. This approach will send the message to local businesses and service providers that there are consequences for violating the Code. At the same time, this remedy will assist in raising awareness and understanding in the community” (para 94).

a. Within 60 days, the respondents shall make a charitable donation in theamount of $2500.00 to an organization identified by the Commission thatprovides services to people living with HIV/AIDS in Geraldton, or thatundertakes public outreach or education in respect of HIV/AIDS issues;

b. The respondents shall post Code Cards at the restaurant.