HUMAN RIGHTS TRIBUNAL OF ALBERTA

BETWEEN:

Aleksandra Andric

Complainant

- and 585105 Alberta Ltd.

o/a Spasation Salon & Day Spa

Respondent

DECISION
Tribunal Chair:

Sharon Lindgren-Hewlett, B. Comm., LL.B.

Decision Date:

August 6, 2015

File Number:

N2010/04/0010

Alberta Human Rights Commission

th
7 Floor, Commerce Place
10155 102 Street
Edmonton, AB T5J 4L4
Phone 780-427-2951 Fax 780-638-4641

www.albertahumanrights.ab.ca

2015 AHRC 14 (CanLII)

Citation: Andric v. 585105 Alberta Ltd. o/a Spasation Salon & Day Spa, 2015
AHRC 14

[1]
This matter involves a complaint of discrimination in employment filed April 14,
2010 by Ms. Aleksandra Andric (the complainant) against 585105 o/a Spasation Salon
& Day Spa (the respondent or Spasation). Following an assault on the complainant at
work, changes in the complainant's position and location of work were initiated by the
respondent. The complainant alleges the changes were discriminatory on the grounds
of religious beliefs, ancestry or place of origin, contrary to section 7 of the Alberta
Human Rights Act (the Act)1 which sets out:
No employer shall
(a)
refuse to employ or refuse to continue to employ any person, or
(b)
discriminate against any person with regard to employment or any
term or condition of employment,
because of the race, religious beliefs, ... ancestry, place of origin ... of that
person or of any other person.
[2]
The complainant also alleges that certain racial slurs were made by the
respondent during her employment at Spasation.
Issues:
1.

On a balance of probabilities, do the respondents actions

constitute prima facie discrimination?

2.

If prima facie discrimination is established, has the respondent

shown, on a balance of probabilities, reasonable justification for its
actions?

3.

If the Act has been contravened, what is the appropriate remedy?

Positions of the Parties

Complainant
[3]
The complainant submits the respondent made its unilateral decision to transfer
Ms. Andric to another Spasation location after the assault because of the common
religion, ancestry, or place of origin shared by Mr. Hasoon Rahal (Spasation's owner)
and Ms. Johanna Amazu (Spasation employee who assaulted Ms. Andric) and her
husband, Mr. Amazu. The complainant submits there was no legitimate business
reason for the unilateral change to the complainant's terms and conditions of
employment, and the change amounted to a constructive termination of employment.
The complainant alleges the rehiring of Ms. Amazu at another salon under the same
1

Alb erta Human Rights Act, RSA 2000 c. A-25.5

2015 AHRC 14 (CanLII)

Introduction

[4]
The complainant seeks damages in the amount of $15,000 plus lost wages and
interest.
[5]

The complainant called the following witnesses:

Ms. Aleksandra Andric
Ms. Natalee McLeod
Ms. Sarah Hughes

complainant and general manager of West

Edmonton Mall Spasation in March 2010
co-worker and witness to the assault of
March 8, 2010
former employee of Spasation and friend of the
complainant in attendance at the March 12,
2010 meeting

Respondent
[6]
The respondent submits its actions were a lateral, parallel, or "better," transfer of
the complainant to another Spasation location because it would be safer for her
following the assault. In its written submission, the respondent argues the only matter in
issue is whether it would have been safer for the complainant at another Spasation
location. Spasation submits this matter ought to be determined in an employment law
forum and not before a human rights tribunal. Spasation submits they have numerous
employees with wide ranging nationalities and religious beliefs; therefore no
discrimination against the complainant occurred. It further argued no preferential
treatment was established because Ms. Amazu was fired. The respondent submits
there was nothing discriminatory in the reassignment of Ms. Andric and nothing
preferential in the treatment of Ms. Amuzu. The respondent sought dismissal of the
complaint.
[7]

The respondent called the following witnesses:

Mr. Danny Assaf
Mr. Hassoon Rahal
Ms. Salima Khurshed
Ms. Sandra Moren
Mr. Chris Reilly

chief operations officer, representative for the

respondent
owner of Spasation
employed in human resources with the
respondent
an employee or consultant of the respondent in
March 2010
consultant to the respondent in IT and
marketing

2015 AHRC 14 (CanLII)

ownership as the respondent indicates preferential treatment and further supports a

finding that the actions of the respondent were discriminatory because of the religious
connection between the A mazus and the respondent. The complainant argued Mr.
Rahal, the key respondent witness, was not credible or reliable.

[8]
In March 2010, Ms. Andric had been an employee of the respondent for
approximately ten years with a few brief interruptions. She started out as a receptionist
in about 2000, and in 2009 was promoted to general manager of the West Edmonton
Mall Spasation Salon (the WEM Salon). The respondent considered the complainant to
be a mature, high performing employee who was great with customers and had strong
product sales.
The Assault
[9]
On March 8, 2010, Ms. Andric was physically attacked at work by Ms. Amazu.
The police were called and attended the scene.
[10] Ms. Andric testified she was talking on the telephone when Ms. Amazu came up
behind her, grabbed her hair and then began punching her in the face. Mr. Danny Assaf
testified he was on the other end of the phone with Ms. Andric and the phone dropped
suddenly. Ms. Natalee McLeod, a stylist working at the WEM Salon, wrote in her police
Witness Statement Form and testified at the hearing that she saw Ms. Amazu on top of
the complainant punching her. She also testified that Mr. Amazu tried to attack the
complainant but was held back. This was corroborated by a nother police Witness
Statement Form. Ms. McLeod was cooperative and truthful and stood to gain nothing
either in giving her initial statement to the police or in testifying at the hearing.
[11] In the incident report created by Mr. Assaf on or near the day of the assault, it is
noted he held a telephone conversation with the Amazus after receiving repeated voice
messages from them. In his incident report it states: they didnt mean for this to happen
Aleks initiated the confrontation. At the hearing of this matter, however, the
respondent agreed Ms. Andric was wrongly attacked from behind. This case proceeds
on the basis of the evidence and agreement of both parties that the complainant was
the victim of an assault by the Amazus at work.
[12] Police statements and the witness testimony of Ms. McLeod also establish that
as the Amazus were walking out of the WEM Salon, Mr. Amazu yelled out "this is not
over, you don't mess with Allah."
March 12, 2010 Meeting
[13] Four days after the assault, a meeting (the March 12 Meeting) was held at the
respondent head office where the respondent told Ms. Andric she was being transferred
from her position and from the WEM Salon. Subsequent correspondence from the
respondent dated March 15, 2010 states:
To Whom It May Concern:
After meeting with Aleksandra (Aleks) at corporate office and due to
recent violent conflict that unfortunately occurred at our West Edmonton
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2015 AHRC 14 (CanLII)

Evidence and Findings

Mall location, the Company decided to transfer Aleks for business

reasons.

[14] Ms. Andric testified that Mr. Rahal requested that she return the key for the WEM
Salon, which she did on March 16, 2010. Medical reports establish Ms. Andric was still
physically impacted by the assault two months after it occurred.
[15] The complainant alleges that at the March 12 Meeting, Mr. Rahal made
statements in reference to the Amazus being family friends, attending the same
mosque, and that Muslims must respect each other at all times. Ms. Hughes, a friend
of the complainant who attended the March 12 Meeting, provided a sworn statement
and testified at the hearing. In her statement, Ms. Hughes sets out Mr. Rahal would not
contact the police as requested by Ms. Andric. He stated: I know her husbands family,
were from the same community, we go to the same mosque Muslims must respect
each other. Mr. Rahal denies making these statements and denied any knowledge of
whether the Amazus attended his mosque. He testified that Muslims attend many
mosques and mosques are very big.
[16] Both parties agree Ms. Andric, Ms. Hughes, Mr. Assaf and Mr. Rahal attended
the March 12 Meeting. The respondent offered conflicting evidence as to whether Mr.
Reilly, Ms. Moren, and Ms. Khurshed were in attendance. Mr. Reilly and Ms. Khurshed
each testified that they did not attend the March 12 Meeting. Ms. Moren testified she
was at the March 12 Meeting. I find that the individuals in attendance at the March 12
Meeting were Mr. Rahal, Ms. Andric, Ms. Hughes, Mr. Assaf and Ms. Moren.
[17] The respondents evidence regarding how it dealt with Ms. Amazu after the
assault is contradictory: It stated at the hearing and in written submissions 2 that it had
fired Johanna Amazu. It also submitted if Johanna Amazu had attempted to come in to
the WEM Salon it would have fired her. 3 These inherently contradictory written
submissions set the stage for the changing testimony of key respondent witnesses.
[18] Mr. Rahal's evidence was variable and shifting from moment to moment on
numerous matters. He would strongly assert a fact as "100 per cent" and within
moments would revise his testimony to be "50/50" or the opposite of what was originally
asserted. The following summarizes some of the numerous inconsistencies in
respondent witness testimony and some of my findings regarding this testimony:

Mr. Rahal testified he did not subsequently hire Ms. Amazu the year
following the assault at another salon he owned because he never did the
hiring. He had previously testified he sometimes did the hiring. On cross
examination, he admitted he interacted with Ms. Amazu and that she was

Respondent's written submission at para 19

Respondent's written submission at para 16

2015 AHRC 14 (CanLII)

A communication advising the revision in your salary, locations &

responsibilities will be given to you once you become available to work.

With respect to his interactions with Mr. Amazu, Mr. Rahal initially stated
no interaction 100 per cent. Mr. Rahal testified he didn't know Mr.
Amazu, had never met him and would not know what he looked like. Later,
he said I know her husband, he called and threatened me. When it was
suggested to Mr. Rahal in cross examination that he had interacted with
Mr. Amazu, Mr. Rahal responded: Prove it. Mr. Rahal later described Mr.
Amazu as a killer and a drug dealer. He further revised his testimony to
say that he knew Mr. Amazu had dark hair. He also testified, I could see
him but Im afraid of him. Hes crazy. Mr. Rahal then acknowledged he
may have interacted with Mr. Amazu when he was picking up his wife but
he had so many employees it was hard to keep track. He also referenced
running into the Amazus in a mall, which, by necessary implication, is an
interaction.

When questioned about a telephone conversation on his personal cell

phone with Mr. Amazu, Mr. Rahal testified that Mr. Amazu's wife must
have given him his personal cell number, again undermining Mr. Rahals
position that he had no contact with Amazu. I am persuaded that both Mr.
Assaf and Mr. Rahal held numerous telephone conversations with either
or both of the Amazus on and after March 8, 2010.

Mr. Rahal also varied his testimony regarding the emotional nature of the
March 12 Meeting, initially describing it as a cool, professional meeting
where the atmosphere was not heated. He testified: It was not much
more than welcome and take care of Andric. This conflicts with the
evidence of Mr. Assaf and Ms. Moren (respondent witnesses) as well as
Ms. Andric and Ms. Hughes (complainant witnesses). Mr. Rahal
subsequently acknowledged the meeting was emotional. Mr. Rahal
insisted he remembered the meeting 90 per cent, yet later stated he
may not remember the events of the meeting as it was so long ago. When
asked whether he agreed the March 12 Meeting was an unusual meeting,
he responded: We call managers meetings all the time.

At one point, Mr. Rahal characterized the respondents actions regarding

Ms. Andrics transfer as entirely to take care of her safety. This is in direct
conflict to another part of his testimony where he stated that where there
is tension in a salon, there has to be a transfer because of the conflict. He
testified that if anybody is fighting we transfer both of them o r we let go
both of them. Mr. Rahal recanted on this point, saying they dont fire, they
transfer. On the evidence, I am not persuaded the respondent had a
general policy that employees are transferred where conflict arises in a
salon. Further, the assault was initiated by Ms. Amazu and is not
accurately characterized as tension between employees. Mr. Rahal also
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2015 AHRC 14 (CanLII)

rehired because he felt pity for her when she approached him. This
explanation was also included in the respondents written submissions.

Regarding Ms. Amazu, the respondent alleged in its written submissions

that she was fired, however in testimony, Mr. Assaf indicated nobody from
the respondent had any contact with Ms. Amazu after the incident. Ms.
Khurshed testified she believed Ms. Amazu left voluntarily. Ms. Khurshed
testified she could not recall whether she had noted fired or quit on the
Record of Employment (ROE) regarding Ms. Amazus departure. I am not
convinced Ms. Khurshed would forget how she characterized such a
significant departure. Issuing an ROE for an employee following an
assault is not in the ordinary course of business.

Mr. Rahal testified Ms. Andric never said she did not want to transfer
because of her safety. This is in direct conflict to the testimony of Mr.
Assaf, Ms. Moren, Ms. Andric, and Ms. Hughes, all of whom testified Ms.
Andric expressed at the March 12 Meeting that she wished to remain in
the WEM Salon for her safety.

Mr. Assaf testified Ms. Andric requested them to contact the police to talk
about where it would be safer for her. Mr. Assaf stated they did not do so.
Mr. Assaf testified they trusted the Edmonton police to do their job. Ms.
Khurshed testified Mr. Rahal and Mr. Assaf talked to the police. Mr. Rahal
stated it was 50/50 whether he called the police. He also testified about a
threatening telephone call from Mr. Amazu after which he stated they
should have called the police because Mr. Amazu threatened him.

When first asked if the Amazus attended the same mosque as Mr. Rahal,
Mr. Assaf responded that he didnt understand what the same mosque is
because Muslims practice prayers in different mosques. Within moments
he testified the Amazus were definitely not in the same mosque as Mr.
Rahal.

Mr. Rahal initially testified the decision to transfer Ms. Andric was not
made prior to the March 12 Meeting, however, he subsequently changed
this testimony. Mr. Assaf testified the decision was made prior to the
March 12 Meeting, at a meeting of Spasation management that Mr. Rahal
was part of.

The respondent, in its written submissions, indicated that it told the

complainant she would remain as a general manager. The respondent
further submitted "she was offered a parallel or better transfer." However,
Mr. Rahal contradicted this submission when he was presented with
written documentation which stated that he had reported there were no
general manager positions available in March 2010. Mr. Assaf testified it
may have been a parallel or better transfer with more money, however,
7

2015 AHRC 14 (CanLII)

offered conflicting testimony about whether he visited the salon after the
incident.

Ms. Moren testified there was no meeting scheduled for March 12, 2010,
and Ms. Andric just showed up. While stated confidently, this was in direct
conflict with the respondents submissions and several witnesses at the
hearing. Ms. Morens testimony contained what seemed to be her opinion
that a transfer from the WEM Salon to a receptionist position at another
salon would be safer for Ms. Andric, but she advanced no convincing
reasons for this opinion. Ms. Moren also testified Ms. Andric was a friend
of hers at the time. Ms. Moren appeared to believe Ms. Andric was a
receptionist and not the general manager in March 2010. Given Ms.
Morens lack of knowledge of the position Ms. Andric held, I attach no
significance to Ms. Morens testimony, twice repeated, of her friendship
with Ms. Andric and the corresponding implication that Ms. Morens
testimony should be provided greater weight.

Ms. Khurshed testified she was not at the March 12 Meeting but was
briefed on what occurred and took minutes. When asked where the
minutes were, she attempted to amend her testimony, saying there were
no minutes, just notes in her book when she was briefed. The respondent
was given an opportunity to provide the notes but failed to do so.
Consequently, I draw an adverse inference that the notes would not have
supported the respondents position at the hearing. This inference is of
minor consequence to my findings but is yet another example of
inconsistencies in the respondents evidence.

Mr. Reilly was a consultant who performed IT work for the respondent on
a part-time basis. He presented in a truthful and forthright manner, saying
he had not observed any discrimination at Spasation. Since he was not at
the March 12 Meeting, he was not able to provide any evidence about the
events relevant to the alleged discrimination in this complaint.

[19] In addition to the circumstances surrounding the assault, Ms. Andric testified Mr.
Rahal made statements in a one-on-one meeting with her about a previous manager of
the WEM Salon being a "Jewish bitch" and words to the effect that Arabs are better than
Jews. Ms. Andric testified she was told she would have to testify against the former
manager or potentially lose her job. Mr. Rahal denied that he talked to Ms. Andric about
the previous manager. He refused to answer any further questions about what he said
about the previous manager because he stated a court case was pending.
[20] The case of Faryna v. Chorney 4 is often cited in assessing the credibility of
witness testimony when there is conflicting evidence:

Faryna v. Chorney [1952] 2 D.L.R. 354 (B.C.C.A.) at para 10

2015 AHRC 14 (CanLII)

he admitted on cross examination that there were no general manager

openings at the time.

[21] Ms. Andric and Ms. Hughes testified in a truthful, forth right, and consistent
manner. Ms. Andric was clear and direct in her testimony about the statements being
made and she was not shaken on cross examination. Ms. Hughes sworn statement and
testimony corroborate Ms. Andrics evidence. Ms. Hughes testimony was responsive,
matter of fact, and without embellishment. The testimony of the complainant and other
complainant witnesses is consistent with what is likely to have occurred given the
overall context of this complaint.
[22] In contrast, I have considered the inconsistencies inherent in the (often changing)
testimony offered by Mr. Rahal as well as Mr. Assaf and Ms. Moren, including:

whether Ms. Andric expressed concerns about her safety;

the reason for the transfer;

when the decision was taken to transfer Ms. Andric;

whether the police were or would have been called;

whether the respondent had communicated to Ms. Andric that a

parallel or better transfer was being offered.

[23] The disparities in the respondent witness testimony do not support that the
respondent is advancing the truth of what occurred. Where there is a direct conflict in
the evidence offered by a witness for the respondent and evidence offered by Ms.
Andric or Ms. Hughes, I prefer and accept the evidence of Ms. Andric and Ms. Hughes
as reliable and credible. In the above summarization of the evidence, I have made
findings regarding certain facts. I also make the following important findings regarding
the March 12 Meeting:

Mr. Rahal began the March 12 Meeting by suggesting Ms. Andric

was responsible for the attack and further stating you dont look
too bad;

Ms. Andric did communicate at the March 12 Meeting her views of

why the WEM Salon would be safer for her;
9

2015 AHRC 14 (CanLII)

The credibility of interested witnesses, particularly in cases of conflict of

evidence, cannot be gauged solely by the test of whether the personal
demeanour of the particular witness carried conviction of the truth. The
test must reasonably subject his story to an examination of its consistency
with the probabilities that surround the currently existing conditions. In
short, the real test of the truth of the story of a witness in such a case must
be its harmony with the preponderance of the probabilities which a
practical and informed person would readily recognize as reasonable in
that place and in those conditions.

Mr. Rahal did make the statements at the March 12 Meeting

regarding a shared religious community with the Amazus. I also find
as a fact that these statements were made by Mr. Rahal in a
manner that conveyed he was rationalizing Ms. Andrics transfer for
these reasons.

Additional findings are:

Mr. Amazu, in his parting words after the assault, stated words to
the effect "this is not over. You don't mess with Allah";

Mr. Rahal uttered derogatory slurs against the previous manager

and Jews;

The respondent did not communicate that the transfer was better or
lateral.

Jurisdiction
[24] The respondent provided written submissions arguing that this matter belonged
in an employment law forum, not before a human rights tribunal. It submitted: "If Andric
had an issue with her transfer and saw this as a "constructive dismissal", then her resort
is to employment law, not a Human Rights complaint."
[25] An employer is subject to statutory obligations under the Act, irrespective of
whether there may be a separate common law action in an employment law forum. The
complaint was filed with the Commission as a human rights complaint. I was appointed
pursuant to section 27 of the Act and this Tribunal has jurisdiction to hear and decide
the complaint.
Prima Facie Analysis
[26] The Supreme Court of Canada has outlined the specific analysis to be
undertaken in assessing a prima facie case of discrimination, in Moore v. British
Columbia (Education):5
to demonstrate prima facie discrimination, complainants are required to
show that they have a characteristic protected from discrimination under
the Code; that they experienced an adverse impact with respect to the
service; and that the protected characteristic was a factor in the adverse
impact.

Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 at para 33

10

2015 AHRC 14 (CanLII)

[27] If the test is met on a balance of probabilities, the burden shifts to the respondent
to show, also on the balance of probabilities, that there was no discrimination, a
reasonable justification for the discrimination exists, or the respondent accommodated
the complainant to the point of undue hardship.

[28] At the hearing, the complainant advanced numerous grounds of discrimination

including race, religious beliefs, ancestry, or place of origin. Other than Mr. Assaf
remarking: We are from the Middle East and Rahals derogatory slurs regarding Jews
and Arabs, little evidence was submitted regarding race, ancestry or place of origin.
[29] However, it was not in dispute that the Amazus and Mr. Rahal shared a Muslim
religious belief and Ms. Andric did not. The context surrounding Mr. Rahal's statements
imply an attempt to explain the changes to the complainant's employment because of
the religion or religious beliefs shared with the Amazus. Preferential or adverse
treatment based on friendship is not protected under human rights legislation, 6
however, action or exclusion connected to a protected ground is entitled to protection. 7 I
find, based on Mr. Rahal's statements, that the respondent's actions regarding Ms.
Andric's employment were motivated, at least in part, by the fact that Ms. Andric was not
a Muslim and did not share the common religious beliefs of the respondents. A sufficient
connection to religious belief has been established such that Ms. Andric is entitled to
claim protection under the Act.
Was there an adverse impact?
[30] Mr. Rahal advised Ms. Andric of the transfer. Ms. Andric immediately relayed to
the respondent that she did not want to transfer from the location where she had
successfully been employed with the respondent for a decade. Ms. Andric made it very
clear at the March 12 Meeting that she considered the location of her employment at the
WEM Salon to be so important as to be a fundamental term of the contract. On the
evidence, Ms. Andrics position was justified given that her job position, duties and
salary were being affected.
[31] If the respondent truly intended the transfer to be lateral or parallel, it ought to
have specifically confirmed that any changes would include a parallel or better salary
and position. As indicated earlier, the respondent's attempt to suggest Ms. Andrics
position as general manager was secure or that a better position was offered is not
supported by the evidence and is also contrary to a plain reading of the respondents
March 15, 2010 letter where unknown future "revisions" to the complainant's salary,
location and responsibilities were to be imposed. Being subjected to a workplace
transfer of location with unspecified responsibilities and a potential demotion or
reduction in salary are adverse impacts.

Widenmaier v. Victoria Shipyards and others, 2011 BCHRT 47 at p.7

Ib id at p.8; Thomson v. Eurocan Pulp & Paper Company 2002 BCHRT

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2015 AHRC 14 (CanLII)

Did Ms. Andric have a characteristic protected under the Act?

[33] The facts of this case establish that a fundamental change to the contract of
employment 8 occurred, was initiated by the respondent, and was the catalyst that
ultimately brought an end to a successful ten-year employment relationship between the
parties. This is an adverse impact by any measure. This branch of the Moore, supra
analysis is satisfied.
Were religious beliefs a factor in the adverse impact?
[34] The departing words of the Amazus to the effect that "this is not over, you don't
mess with Allah," would not normally impact an employer. The full nature and extent of
the interactions between the Amazus and the respondents is not before me, however
the evidence showed numerous conversations between Mr. Assaf and the Amazus as
well as between Mr. Rahal and the Amazus. I find Mr. Rahal's expressions during the
March 12 Meeting indicate that the shared religious beliefs with the Amazus were a
factor in the respondents decision to transfer the non-Muslim complainant.
[35] There is a sufficient connection between the adverse impact on the complainant
and the protected ground of religious beliefs under the third branch of Moore, supra.
[36] Having met all three branches under Moore, prima facie discrimination by the
respondent against the complainant on the ground of religious beliefs is established on
the balance of probabilities and the onus shifts to the respondent to justify its actions.
Has the respondent shown reasonable justification for its actions?
[37] The leading case known as Meiorin9 sets out a three step test to assess whether
an employer may justify its actions as a Bona Fide Occupational Requirement (BFOR)
or for another reasonable justification.

See for example, the leading test for constructive dismissal in Farb er v. Royal Trust Co., 1997 CanLII 387 (SCC),
[1997] 1 S.C.R. 846, 145 D.L.R. (4th) 1 at para 33 as discussed in Alb erta Permit Pro v. Booth, 2009 ABCA 146
(CanLII)
9
British Columbia (Public Service Employee Relations Commission) v. BCGSEU (Meiorin) 1999 CanLII 652 (SCC),
[1999] 3 SCR 3, at paras 54-55

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2015 AHRC 14 (CanLII)

[32] The respondent's response of May 2010 set out that it was "Still Waiting for Aleks
to Call and Give Availability for Work" however there was no evidence that the
respondent attempted to contact the complainant between March and May of 2010 OR
after May 2010. The respondent offered no evidence that it sought to retain the
complainant as an employee. In this circumstance, Spasation unilaterally changed
important terms and conditions of employment for Ms. Andric, who clearly did not
accept or agree to the changes. There is no room to consider that Ms. Andric voluntarily
resigned or quit her employment. In this circumstance, I find Ms. Andric did not bear
responsibility to contact Spasation with availability for work at an undetermined location
with an undetermined salary with undetermined responsibilities.

(1) that the employer adopted the standard for a purpose rationally
connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest
and good faith belief that it was necessary to the fulfilment of that
legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment
of that legitimate work-related purpose. To show that the standard
is reasonably necessary, it must be demonstrated that it is
impossible to accommodate individual employees sharing the
characteristics of the claimant without imposing undue hardship
upon the employer.
[38] The respondent relied on reasons of safety or business to justify its transfer of
Ms. Andric. On the facts, the respondents position cannot be maintained even on
superficial examination.
[39] I accept that Ms. Andric believed and conveyed to the respondent that the WEM
Salon would be a safer location for her. I accept that Ms. Andric held discussions and
sought advice with the police about her safety, which in part motivated her desire to
remain at the WEM Salon. I accept as truthful and reliable that Ms. Andric told Mr.
Rahal the Amazus were banned from the mall where the WEM Salon was located. I
accept the testimony of Ms. Andric and Ms. McLeod that Mr. Assaf was directly advised
by the police officer who attended the scene that the Amazus were banned from West
Edmonton Mall. I accept as truthful the complainant's explanation that she preferred to
be at the WEM Salon where she had friends and coworkers who kne w the Amazus by
sight and who could again assist the complainant if the Amazus returned. I accept the
complainant's explanation that she could have accessed mall security or a friend or coworker to walk her to her car in the parking lot if she was concerned.
[40] The respondent did not squarely address any of these points concerning the
issue of safety i n a meaningful way. Instead, it made the rather bald assertion that
another salon would be safer solely because the Amazus wouldn't know where she
was. In response to this, the complainant pointed out that her whereabouts could easily
have been determined at another salon by asking around. If a new location had been
found out by the Amazus, the complainant would have been in unfamiliar surroundings
with unfamiliar people.

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Having considered the various alternatives, I propose the following threestep test for determining whether a prima facie discriminatory standard is
a BFOR. An employer may justify the impugned standard by establishing
on the balance of probabilities:

[42] Further, in rejecting the respondent's additional submission that the proposed
transfer of Ms. Andric was for legitimate business reasons, I have considered the
following factors:

Mr. Assaf was referred to the March 15, 2010 letter and asked to
define what business reasons it was referring to. He responded
that there was a violent incident at the location where Ms. Andric
was a victim and the fact that it happened in the business is the
business reason. Not only does the March 15, 2010 letter not
clarify Ms. Andric was a victim, but this position justifying business
reasons borders on being nonsensical;

The respondent agreed Ms. Andric was a valued, trusted, highperforming employee and prior to the assault there were no
performance concerns with her. In any event, performance as
related to business reasons or otherwise was not raised as a
motivation for the transfer;

Ms. Khurshed testified she thought other employees at the WEM

Salon may have lost respect for the complainant because of what
occurred. Ms. Khurshed offered no rationale for this opinion and I
give it no weight as a business reason;

The transfer was initiated within a week of the assault and no

business reasons appeared to have arisen during that time frame;

The respondent offered no reasonable explanation of a legitimate

business reason for transferring the complainant from the WEM
Salon.

[43] Somewhat related to the business reason submission, the respondent

submitted an unsigned Employee Contract, and argued this gave the respondent the
right to make changes from time to time. This, the respondent s ubmits, enables the
respondent to make changes for business reasons and is a full answer to allegations of
discrimination. In the absence of specific language in the contract addressing transfers
or changes to responsibilities and under what circumstances these may occur, this
argument cannot succeed. Human rights are paramount over general language in a
contract that enables a change in duties from time to time.
[44] On a balance of probabilities, the evidence does not support the respondent
transferred Ms. Andric for her safety, for legitimate business reasons, or under the
authority of an employment contract. As no reasonable justification has been advanced
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[41] I do not accept that a transfer out of the WEM Salon for safety reasons was
rationally connected to performance of the job in these circumstances or was
reasonably necessary for Ms. Andrics safety.

for the respondents actions, it has not established there was a bona fide occupational
requirement or reasonable justification to transfer Ms. Andric from the location she had
worked at for ten years. Accordingly, a contravention of section 7 of the Act has been
found on the balance of probabilities and a remedy will follow.

[45]

Section 32(1)(b) of the Act sets out:

A human rights tribunal

(b) may, if it finds that a complaint has merit in whole or in part, order the
person against whom the finding was made to do any or all of the
following:
(i)

to cease the contravention complained of;

(ii)

to refrain in the future from committing the same or any similar

contravention;

(iii)

to make available to the person dealt with contrary to this Act the
rights, opportunities or privileges that person was denied contrary
to this Act;

(iv)

to compensate the person dealt with contrary to this Act for all or
any part of any wages or income lost or expenses incurred by
reason of the contravention of this Act;

(v)

to take any other action the tribunal considers proper to place the
person dealt with contrary to this Act in the position the person
would have been in but for the contravention of this Act.
[Emphasis added]

[46] The Alberta Court of Appeal has recently addressed general damages and lost
income awards in human rights cases, noting:10
Human rights legislation must be accorded a broad and purposive
interpretation having regard to its fundamental purpose: to recognize and
affirm that all persons are equal in dignity and rights and to protect against
and compensate for discrimination. In addition to compensating victims of
discrimination, the remedial authority under human rights legislation
serves another important societal goal: to prevent future discrimination by
acting as both a deterrent and an educational tool: Canada (Treasury
Board) v Robichaud, 1987 CanLII 73 (SCC), [1987] 2 SCR 84.

10

Walsh v. Mob il Oil Canada 2013 ABCA 238 at paras 31-32

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Remedy

[47] Ms. Andric has demonstrated a stable employment history, first with Spasation
for ten years, and with her current employer, Coupe Nouvelle Leather Fashions Ltd.
(Coupe Nouvelle) (nearing five years at the date of hearing). Ms. Andric testified that
her employment at Coupe Nouvelle was at a lower income level than at Spasation. The
complainant submitted T4s for the income from Coupe Nouvelle for the years 2010,
2011, 2012, 2013, and 2014 however she did not submit T4s for the previous years
while with Spasation. Ms. Andric testified that her monthly income at Spasation
amounted to around $3,500.00, sometimes a little more, sometimes a little less.
[48] Ms. Andric testified, and I accept as reasonable, that she began looking for work
when she was fully healed, within a couple of months following the assault. Within six
months of beginning her job search, Ms. Andric mitigated her damages by securing
employment at Coupe Nouvelle in November 2010. If the discrimination had not
occurred, it is foreseeable Ms. Andric would have remained at the WEM Salon on an
ongoing basis.
[49] The purpose of an award for lost wages is to put the complainant in the position
she would have been in had her rights not been violated. Such an award ought to reflect
the social importance of the rights that are being protected. In Walsh, the Court of
Appeal considered the assessment of appropriate "cut-off dates" for damages for lost
wages, stating the correct test is: 11
... [A]ny damages causally linked to the discriminatory conduct are
payable, subject to a limitation imposed on a "principled basis."
[50] In assessing the causal link between the discrimination and the lowered income,
I note Ms. Andric began with the respondent as a receptionist and over the years was
promoted to more responsible positions. I draw the inference that a period of time at
another retail location may be necessary to again work her way up the ranks to a
position of more responsibility, with the concomitant increased salary. In addition, a
period of time to acquaint with product and service offerings is required. Ms. Andric
testified that the business of Coupe Nouvelle had declined and her income and hours
declined accordingly.
[51] I award lost wages to Ms. Andric for a period of 24 months, from March 2010 up
to and including March 2012. This encompasses time for healing, job search, and a top
up of wages to enable the complainant to establish herself in a new retail environment.
The complainant did not provide evidence regarding any job search efforts after the
11

Walsh, supra, at para 49

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Damage awards that do not provide for appropriate compensation can

minimize the serious nature of the discrimination, undermine the mandate
and principles that are the foundation of human rights legislation, and
further marginalize a complainant. Inadequate awards can have the
unintended but very real effect of perpetuating aspects of discriminatory
conduct.

[52] For purposes of calculating lost wages, the respondent is to provide a breakdown
of monthly product sales from the WEM Salon to the complainant. The complainant is to
declare any income earned throughout the entire period. In terms of quantifying the
differential, the Wage Rate is to be calculated at $2,500 plus the applicable
percentage of sales (1 per cent of sales under $100,000 and 1.5 per cent of sales over
$100,000). Lost wages are to be calculated as follows:

For the period she was not working, lost wages are the Wage Rate
less required statutory deductions. If Ms. Andric received
Employment Insurance (EI) during this time an appropriate pay
back to EI should be made by either the respondent or Ms. Andric;

For the period she worked with Coupe Nouvelle, the difference
between the Wage Rate and gross earnings at Coupe Nouvelle,
less required statutory deductions.

[53] With respect to general damages for injury to dignity and self-respect, it is to be
recalled the respondent initially suggested the complainant may have initiated the
confrontation. In its March 15, 2010 letter, it referenced a "violent conflict" without
explanation that the complainant was a victim and not a participant. The unilateral
transfer after the ten-year employment relationship negatively impacted Ms. Andric's
self-esteem. The complainant felt as though the respondent was justifying or tolerating
the physical injuries inflicted on her and then penalizing her because she was not a
Muslim. Ms. Andric testified the treatment by the respondent was worse than the attack
by the Amazus. Ms. Andric felt demeaned by this treatment. I am satisfied Ms. Andric
was profoundly impacted by the discriminatory treatment. I have reviewed the cases
submitted regarding general damages, 12 and have determined that $15,000 is an
appropriate award of general damages for distress, injury and loss of dignity.
[54] Ms. Andric is to receive interest on general damages and wage loss in
accordance with the rates set out in the Judgment Interest Act13 from March 15, 2010.
[55]

I retain jurisdiction to address quantification of wage loss, if necessary.

August 6, 2015

Sharon Lindgren-Hewlett, B. Comm., LL.B.

Tribunal Chair

12

Most notably Simpson v. Oil City Hospitality Inc., 2012 AHRC 8, and Gadowsky, Re [1981] 1 W.W.R. 647
Judgment Interest Act, J-1 RSA 2000

13

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decline in business of her current employer. I have taken this into account in declining to
order top up wages for the full five year period.

Appearances

Mr. Danny Assaf, Representative

for the Respondent 585105 Alberta Ltd. o/a Spasation Salon & Day Spa

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2015 AHRC 14 (CanLII)

Mr. William Peachman

Mr. Ally Ismail, Pro Bono Students Canada
assisting the Complainant