Foster Wheeler Ltd. v. Ontario (Human Rights Comm.) (No. 2)
1985-11-18
CHRR Doc. 86-018
Gladstone Leslie Scott Complainant
Foster Wheeler Ltd. Respondent
Date of Decision: November 18, 1985
Place: London, Ontario
Before: Ian A. Hunter
Appearances by: Michael Bader, Counsel for Gladstone Leslie Scott and the Ontario Human Rights Commission Richard J. Nixon, Counsel for Foster Wheeler Ltd.
DAMAGES — punitive damages — lost expense allowance, health and welfare benefits, pension plan contributions and wages — interest on total damages — duty to mitigate — COSTS — complainant hiring own counsel
Summary: This is a decision as to remedy, following a holding on May 17, 1985 that the respondent discriminated against the complainant on the basis of race and colour. The board holds that Scott would have worked as a welder on a Jamaican project for its full duration, had he not been denied the opportunity to do so because of discrimination. The board assesses special damages for lost income by averaging the weekly wages of four welders who were employed on the project. The board finds that Scott complied with his duty to take all reasonable steps to mitigate his loss, even though he turned down a job offered in Alberta by the respondent some time after the act of discrimination. The board accepts evidence that the Alberta job was for a two to three week duration, and that Scott's refusal to accept it was reasonable, because: (a) he had a real expectation of nearby, longer term employment with Ontario Hydro; (b) by accepting the Alberta job, he would have lost his position on his union's out-of-work list; (c) he was concerned about jeopardizing his outstanding complaint against the respondent. Special damages for lost wages would total $39,162.69 for 27 weeks, but a deduction of $11,356.21 is to be made for employment income earned during the period. The net award for lost wages is $27,806.48.
The board also orders compensation for lost employer pension plan contributions of $1,918.35, and lost health and welfare plan benefits of $661.50. There was evidence that men employed in Jamaica received a significant weekly expense allowance, which they could either spend or bank. The board makes no order in this regard since the allowance came not from the respondent but from the Jamaican contractor, and since Scott did not actually incur the expenses which the allowance was primarily intended to cover. As part of special damages, Scott also claimed $5,000.00 in legal fees. These are denied because until the second day of hearings Scott had chosen to engage his own counsel rather than to accept legal representation offered by the Ontario Human Rights Commission. On the issue of general damages, the board believes that the experience of discrimination had a devastating effect on Scott and his relationships with family and fellow workers. The board states that in its opinion a board of inquiry should not assess punitive damages. The relatively high award of $4,500.00 recognizes the very serious effect of discrimination on this particular complainant.
On the total award for special and general damages of $34,886.33, the board also orders interest to be paid of $15,027.60, commencing from the date of service of the complaint and based on prime interest rates for the relevant years.
REMEDY AND ORDER
1On May 17, 1985 I issued my Decision in this case holding that Foster Wheeler Limited had discriminated against the complainant, Mr. Gladstone Leslie Scott contrary to the Ontario Human Rights Code.
2Section 19(b) of the Code empowers a Board of Inquiry to ". . . order any party who has contravened this Act to do any act or thing that, in the opinion of the board, constitutes full compliance with such provision and to rectify any injury caused to any person or to make compensation therefor."
3Hearings took place in Toronto on November 4, 5, 11 and 12 at which time I heard viva voce evidence and submissions of both counsel as to the appropriate order to redress the act of discrimination suffered by Mr. Scott at the hands of Foster Wheeler.
4There is ample authority that such an order should compensate a complainant for both special (i.e., lost wages and benefits) and general (i.e., pain and suffering, humiliation, injury to feelings and reputation) damages. See Torres v. Royalty Kitchenware Limited (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 at D/863 for a comprehensive review of the cases and principles of assessment.
5As to the purpose to be served in assessing damages under section 19(b) I repeat what I wrote in Bruton and McInnis v. M.H.G. International Limited and William Colborne (1983), 1982 CanLII 4885 (ON HRT), 4 C.H.R.R. D/1173 at D/1176: "The purpose of an order as I conceive it, should be to restore the complainants, so far as that is possible, to the position they would have been in but for the illegal and discriminatory act." I do not believe it is the function of a Board of Inquiry to assess punitive or aggravated damages.
Special Damages
6Mr. Scott was very anxious to go on the Jamaican project. Had he not been discriminated against because of his race and colour he would have gone. Had he gone, he testified that he would have worked as much and as long as possible because he needed the money. I accept that evidence.
7In assessing special damages, I intend to use the experience of the four welders – Messrs. Ribiero, Valero, Masri and Anderson – as the basis for several calculations. In one respect, namely the duration of the employment which Mr. Scott could reasonably have anticipated, I intend to use Mr. Ribiero as the standard for compensation. Mr. Ribiero stayed on the Jamaican project until the final week, September 25, 1982; that is, he worked 27 consecutive weeks. I accept Mr. Scott's evidence that he would have stayed as long as possible on the project and I believe that the fairest approach is to use the 27 week period as the outside limit on compensation.
Lost Wages
8The four welders (Ribiero, Valero, Masri and Anderson) earned a total of $104,433.92 in wages. The four men worked a total of 72 weeks. The average weekly wage was $1,450.47. Mr. Scott could quite possibly have made more than this by working a higher number of night shifts for which a shift premium of $3.32 per hour was paid. Nevertheless, I am satisfied that the average weekly wage is the appropriate figure to use.
9Consequently, Mr. Scott's entitlement to lost wages is $1,450.47 per week for a period of 27 weeks = $39,162.69.
Mitigation
10A complainant is under a duty to take all reasonable steps to mitigate his damages; cf. Torres, op cit. at D/871ff. The evidence led before me confirms that Mr. Scott made a concerted effort to find welding employment from March 18, 1982 onwards. The evidence also confirmed that Mr. Scott was offered a job in the Alberta Tar Sands on the Suncor project with Foster Wheeler on June 3, 1982.
11Mr. Scott testified that Bill Ritchies phoned him and told him that there was a job for "two weeks." Mr. Scott said that he would consider it. Approximately one hour later Mr. Scott called Mr. Ritchies back and explained that he had decided not to take the job because he was anticipating a 12 week job with Ontario Hydro in Toronto. Also, Mr. Scott's name was on the Union out-of-work list and he did not wish to jeopardize his position on the list for the sake of a two week job in Alberta.
12Mr. Wronski testified that he told Mr. Ritchies to contact Mr. Scott because he knew that Mr. Scott had a current Foster Wheeler welding ticket. Mr. Wronski testified that the probable duration of the Tar Sands job was "6-8 weeks."
13Mr. Bill Ritchies initially testified that Mr. Wronski told him the job was for "six to seven" weeks; subsequently, he changed that to "six to eight weeks." Mr. Ritchies testified that when he actually phoned Mr. Scott he told him that the probable duration was "five to six weeks" because he knew that out-of-province welders would be the first to be let go. When Mr. Scott rang back and declined the offer, Mr. Ritchies testified that he (i.e., Scott) said he didn't think it was worth his while to go out to Alberta for a two to three week job thereby jeopardizing his chance at the Hydro job. Mr. Ritchies made no response to correct Mr. Scott's apparent misapprehension that the job was only for two to three weeks. Finally, it should be noted that between Mr. Ritchies' call to Mr. Scott and Mr. Scott's reply, Mr. Scott rang Mr. Len Marino, the human rights officer investigating the case, to inquire whether accepting the job offer would jeopardize his complaint. Mr. Marino made a contemporaneous note of this telephone conversation and his note indicates that the duration was two to three weeks.
14If I were required to determine precisely what Mr. Scott was told as to the probable duration of the project, I would prefer his evidence to that of Messrs. Wronski and Ritchies. I do not have to make that choice. Either way, I am satisfied that Mr. Scott's decision not to accept the Alberta Tar Sands project was a reasonable one. First, he was on the Union out-of-work list and he would have lost his ranking by accepting the out-of-province job. Second, he had a real expectation of a job with the Ontario Hydro much closer to home and for a longer duration. Third, he had an outstanding complaint against Foster Wheeler. Even so, I am satisfied that Mr. Scott would have accepted any reasonable job offer, from Foster Wheeler or from any other employer, of longer duration than the anticipated Ontario Hydro job. Consequently, the June 3 job offer does not constitute an unreasonable refusal by Mr. Scott to mitigate his damages.
15Between the act of discrimination (March 18, 1982) and the cutoff date for compensation (September 25, 1982) Mr. Scott did mitigate his losses by accepting all employment which came his way. In that time he worked for four different employers: Frankel Steel (June 29-July 28); Toronto Iron Works (August 8-September 9); E.S. Fox Limited (September 14) and Plibrico Canada Limited (September 15-September 20). Through those periods of employment he earned a total of $11,356.21. This amount is to be deducted from the wages he would have earned on the Jamaican project.
16Consequently, special damages for lost wages are $39,162.69 minus $11,356.21 = $27,806.48.
Pension
17Mr. Scott lost Company pension plan contributions of $1.45 per hour work. The average hours worked on the Jamaican project by the four welders was 1,323 hours.
18Mr. Scott is entitled to lost pension plan contributions in the amount of 1,323 x $1.45/hour = $1,918.35.
Health and Welfare Plan
19The Company paid 50 ¢ per hour worked into a health and welfare plan for each employee.
20Even though Mr. Scott continued to receive health and welfare benefits for the period he was unemployed (thanks to accumulated "credits" in the hourly bank), I am satisfied from the evidence that he was denied a benefit, pursuant to this plan, a benefit which he should have received. Mr. John Schel, who is a trustee of the plan, was uncertain whether Mr. Scott could use a lump sum award to, in effect, repurchase credits in the plan. Nevertheless, I am satisfied that he is entitled to lost health and welfare benefits to be calculated 1,323 hours x 50 ¢ per hour worked = $661.50.
Expense Money
21In Jamaica the men were paid a weekly expense allowance (initially $150 Jamaican per week rising to $210 Jamaican per week in June 1982). Initially, I was inclined to include a sum representing lost expense allowance. Mr. Wronski testified that the men could do anything they wanted with the expense money, even bank it. However, on reflection, I am persuaded that I ought not to include this since (a) the allowance came not from Foster Wheeler but from the Jamaican contractor; and (b) Mr. Scott did not incur the expenses (lunches, island transportation, sundries) which the allowance was primarily intended to cover.
Legal Fees
22Mr. Scott incurred over $5,000 in legal fees retaining the services of a lawyer in Jamaica and in Toronto. He claimed recovery by way of special damages.
23I am not prepared to include such costs. The Ontario Human Rights Commission provides investigation, conciliation, and even legal services, to complainants without cost. Mr. Scott was entitled to decide that he preferred separate representation. But he is not entitled to have the respondent pay for this. I should add that, on the second day of the hearing, Mr. Scott dismissed his Toronto lawyer and, for the remaining 17 days of hearings, was very ably represented by Commission counsel, Mr. Bader.
General Damages
24Mr. Scott testified that the experience of discrimination was "one of the most devastating things that ever happened to me in my life," and that it affected relationships with his family and fellow workers. I believe his evidence. In the dozen or more Boards of Inquiry which I have conducted, I have never seen a complainant quite so crushed by the experience. Mrs. Scott testified that, since the incident, her husband has been suspicious, verging at times on paranoia.
25In trying to determine an appropriate award of general damages I have considered not only the facts of the instant case but tried, however difficult it is, to make comparative factual evaluations with such cases as Torres, op. cit., Rand v. Sealey Eastern (1982), 1982 CanLII 4878 (ON HRT), 3 C.H.R.R. D/938; Cameron v. NelGor Castle (1984), 1983 CanLII 4713 (ON HRT), 5 C.H.R.R. D/1927; Hendry v. Liquor Control Board of Ontario (1980), 1980 CanLII 3901 (ON HRT), 1 C.H.R.R. D/160; Phalen v. Solicitor General for Canada (1981) 1981 CanLII 4301 (CHRT), 2 C.H.R.R. D/433. After considering these (and other) decisions, and acknowledging the inexact nature of such comparison, I have decided that the appropriate award of general damages should be $4,500. This is substantially more than many of the human rights cases I have cited (which recognizes the very serious effect which the discriminatory act had on this particular complainant) and yet is substantially less than the highest award (Hendry, op. cit.) in which, it seems to me, a punitive element crept into the assessment.
26Accordingly, the total of special and general damages to be awarded to the complainant is $34,886.33.
Interest
27Recent decisions have awarded interest on the total special and general damages. The appropriate date to commence interest is the date of service of the complaint which is agreed between the parties to have been April 23, 1982. The prime interest rates for the appropriate years were: 1982 – 16%; 1983 – 11 %; 1984 – 12%; 1985 – 10%.
28The interest should not be compounded and the figures given represent partial years in 1982 and 1985.
1982 – $3,863.99.
1983 – $3,837.49.
1984 – $4,186.35.
1985 – $3,139.77.
Total interest awarded – $15,027.60.
ORDER
29This matter coming on for hearing before this Board of Inquiry constituted pursuant to the Ontario Human Rights Code, in the presence of counsel for the Commission and counsel for the respondent, upon hearing evidence adduced by the parties and what was alleged by the parties, and upon finding that the complaint was substantiated by the evidence and upon hearing submissions as to the appropriate award:
IT IS HEREBY ORDERED THAT:
30The respondent Foster Wheeler pay to Mr. Gladstone Leslie Scott compensation in the form of special and general damages in the amount of $34,886.33 and interest in the amount of $15,027.60.