Ontario (Human Rights Comm.) v. Fort Frances (Town) Commissioners of Police (No. 2)
1989-11-14
Kathleen Pattison
Complainant
The Board of Commissioners of Police for the Town of Fort Frances, Michael Solomon as Chief of Police, and Jack Murray as Deputy Chief of Police
Respondents
Before: Ontario Board of Inquiry, D. J. Baum
Comm. Decision No.: 268B
Appearances by: Kim Twohig, Counsel for the Ontario Human Rights Commission
Allan G. McKitrick, Counsel for the Respondents
DAMAGES — limited to conditions specified in original award
Summary: This is an interim decision regarding damages.
This Board of Inquiry found that Kathleen Pattison was discriminated against because of her sex when she was removed from her duties as a police officer because she was pregnant and not offered alternate available work as a clerk-typist.
The decision of the Board of Inquiry was appealed to the Supreme Court of Ontario which affirmed it and returned the matter to the Board of Inquiry for determination of damages.
In its original decision, the Board of Inquiry ruled that Ms. Pattison was entitled to work available overtime clerk-typist shifts after she was removed from police officer duties. The Ontario Human Rights Commission argues that Ms. Pattison should have been entitled to work any available clerk-typist shifts between January 24 when she was taken off the police officer roster and May 10, 1985 when she became ill. There were only 2 overtime clerk-typist shifts during this period, but 78 regular clerk-typist shifts were available.
The Board of Inquiry rejects the Commission's argument, ruling that the original award was not altered on appeal to the Supreme Court. Consequently, Ms. Pattison is entitled to compensation only for available overtime shifts which were worked during the January to May period.
[See also Ontario (Human Rights Commission) v. Fort Frances (Town) Commissioners of Police (1988), 1988 CanLII 8864 (ON HCJDC), 10 C.H.R.R. D/5831 (Ont. Div.Ct.); aff'g (sub nom. Pattison v. Fort Frances (Town) Commissioners of Police) (1987), 1987 CanLII 8553 (ON HRT), 8 C.H.R.R. D/3884 (Ont. Bd.Inq.). The final award regarding damages has been reported at 1989 CanLII 9076 (ON HRT), 11 C.H.R.R. D/347.]
Cases Cited
Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), 10 C.H.R.R. D/6183: 4, 10
Legislation Cited
Ontario
Human Rights Code, 1981, S.O. 1981, c .53
I
1A decision in the above-named matter was rendered as a Board of Inquiry on February 5, 1987, [Ontario (Human Rights Comm.) v. Fort Frances (Town) Commissioners of Police, 1987 CanLII 8553 (ON HRT), 8 C.H.R.R. D/3884]. An appeal from that decision was taken to the Supreme Court of Ontario, Toronto Divisional Court, [1988 CanLII 8864 (ON HCJDC), 10 C.H.R.R. D/5831]. For purposes of this ruling, the pertinent part of the Divisional Court's ruling through Montgomery J., which sustained the findings of the Board of Inquiry, are found at p. 21 [D/5835]:
The Board [of Inquiry] has found that during the leave of absence granted to the appellant in relation to her first pregnancy, direct discrimination because of sex was practised against her because she was not offered part-time work as a clerk typist (if that work was available), whereas male officers in a situation of being on leave of absence for health reasons would have been offered such part-time work. While sparse, the facts tend to be compatible with that finding and we do not propose to interfere with it.
The award is affirmed and the matter returned to the Board to conclude the determination of any monetary sum, if any, to which the appellant is entitled, in respect of the last mentioned direct discrimination.
2On December 12, 1988, the Commission submitted a notice of motion for leave to appeal to the Ontario Court of Appeal. On March 14, 1989, the Commission abandoned the motion for leave to appeal through an appropriate notice of abandonment filed with the Court of Appeal. This left standing the order of the Divisional Court.
3I initiated discussions and correspondence with the parties to determine if there could be an agreed statement of facts which, in turn, might expedite final decision in this matter. In August 1989, the Commission did attempt to provide a statement of facts and to quantify damages in relation to that statement. The respondents replied that the Commission raised entirely new issues, some of which went to the substance of the original complaints. The respondents asked for a hearing to put their concerns on the record, to seek rulings from me, and to have determined the measure of damages, if any, due and owing to the complainant. On November 1, 1989, the request of the respondents was formalized by way of an application. In effect, the respondents stated that preliminary to any hearing, and in order to properly prepare for and meet the contentions raised by the Commission, it was desirable to have me pass upon the propriety of that which the Commission was attempting to demonstrate.
I agree, and, as a result, this interim award has been prepared. It is intended to clarify the meaning of the final award.
II
4The Commission in its Submissions Re: Compensation raised three matters. (1) Police officers were frequently called upon to fill in for absent clerk typists as part of their regular duties. (2) Police officers, from time to time, were given alternate duties as clerk-typists. The final award should be read as including the right of the complainant to such alternate duties. (3) The recent decision of the Supreme Court of Canada, Brooks v. Canada Safeway Ltd., [1989 CanLII 96 (SCC), 10 C.H.R.R. D/6183], governs these proceedings. That decision, in some way, affords the complainant a claim to such alternate employment.
5Some of the relevant portions of the Commission's submissions are as follows:
It is submitted that the complainant should not have been economically disadvantaged because of her pregnancy. Brooks v. Canada Safeway Limited, at p. 27.
The Supreme Court of Canada has recently stated:
In terms of the economic consequences to the employee resulting from the inability to perform employment duties, pregnancy is no different from any other health-related reason for absence from workplace.
Brooks v. Canada Safeway Limited, supra, at p. 20.
It is submitted that although the finding in this case was that the complainant suffered discrimination because of sex because she was not given the same opportunities to perform the duties of clerk typist as male constables, the principles enunciated in the present Brooks case are equally applicable to the present case.
The agreed facts indicate that there were only two overtime shifts in which police officers acted as clerk typists during the relevant period. However, there were 78 full shifts and two partial shifts in which police officers performed the duties of clerk typist as an alternative to their regular duties, albeit during their regular shift.
It is submitted that in light of the evidence and the findings of the Board of Inquiry as a whole, the criteria for the determination of the amount owing Ms. Pattison outlined in paragraph 1 on page 44 [of my Final Award] could only have been intended to refer to the complainant's substitution for absent clerk typists in lieu of those constables who performed such work on an alternative basis. Otherwise, paragraph 2 on page 44 (of the Final Award) would be redundant. Furthermore, it is submitted that the result would be grossly unfair, considering the number of clerk typist shifts performed by police constables during the relevant period, if the complainant were allowed to substitute for absent clerk typists only when constables performed such work on an overtime basis.
There is no dispute that from January 24 until May 1985 the complainant was on an unpaid leave of absence and was prohibited from earning any income outside the Fort Frances Police Force. Constable Barnard (of the Fort Frances Police Force), on the other hand, had been, and would have been, in receipt of his full salary and benefits until he was reinstated to his regular duties in June of 1985 whether or not he had performed the duties of clerk typist.
It is submitted that the complainant, in order that she could earn some income, ought to have been permitted to work any of the shifts which were assigned to police officers, including Constable Barnard, from January 24 to May 10, 1985.
III
6The final award in this matter, quoted by the Commission, provided (at p. 44 [at D/3901]) guidelines which the parties were to use for the purpose of quantifying damages, if any, to be paid to the complainant:
From the time of the January 1985 leave of absence, she [the complainant] was entitled to substitute for absent Clerk Typists in lieu of those Constables who performed such work on an overtime basis. In this regard, she is to be paid at her then prevailing rate as a Constable.
Where one Clerk Typist shift followed another and overtime would have been required, Ms. Pattison was entitled to share in that overtime on the [same] basis as other Constables.
The computation of damages for Ms. Pattison is to end as of May 1985 when she became ill.
7The guidelines, as part of the award, were before the Divisional Court on the application for review. They set the criteria under which damages, if any, were to be paid the complainant. And, it is that award which the Court affirmed, and which must control in determining damages. In that regard, it would be wrong to attempt, in any way, to rewrite the award. It must be taken in accordance with the plain meaning of its words.
8In my view, the Commission in its submission has gone beyond that plain meaning in an apparent effort to make paragraph two of the award, quoted above, give the complainant a right to clerk-typist shifts worked as an alternative to regular police shifts. It is true, as the Commission has noted, that constables frequently worked clerk-typist shifts as part of their regular shifts. At the time of hearing on this matter, the details as to the frequency of shift work were not before me. They were contained in police logs. The parties agreed at the hearing that they would consult such logs, should the complaints be sustained in whole or in part. The purpose of referring to regular shift alternative work was to draw a line of distinction between that and overtime work. I intended to do precisely what was provided in the award. The rationale for this decision is contained in the award. In any event, this is not the time to restate that rationale. This is a time to implement the award.
9It was overtime, and only overtime, to which the complainant was entitled under the award. Paragraph two of the award (at p. 44) is not to be read as a mechanism for the availability of alternative shift work. Paragraph two was designed to clarify a form of overtime; it was not intended to achieve any other end.
10There is a suggestion in the Commission's submission that the recent Supreme Court of Canada decision in Brooks, supra, somehow bestows upon the complainant a right to alternative work of the kind described in this award. If there is such an argument, it is misplaced in this proceeding. I am called upon to implement the award as it was rendered, and as it was presented to the Divisional Court. If there were an argument that a different measure of damages applied, using in part the rationale of Brooks, the Commission should have raised the matter on appeal. But the Commission abandoned its appeal following the decision of the Divisional Court. It knew, or should have known, that Brooks was under consideration by the Supreme Court of Canada. It was not for me at this point in the proceedings to hear arguments as to the substantive application of Brooks. My task is limited: under the award what is the extent, if any, of damages to be paid the complainant?
IV
11Based on the submissions of the parties, I have clarified the meaning and intent of the award in this matter in the following manner:
Only the overtime work of clerk-typist may be claimed by the complainant under the terms of the award.
Alternative shift work was not included within the measure of damages under that award.
Arguments relating to the application of Brooks are not relevant to these proceedings.
12I order the parties to notify me within forty hours following receipt of this interim award as to whether there is a need for a full hearing to quantify the monies, if any, owing to the complainant. If, as the Commission has indicated, there are only two overtime shifts applicable, it may be wasteful of public resources to convene a hearing. It may be possible, bearing in mind the lines drawn by the interim award, to now have an agreed-upon statement of facts upon which I can rule, or to have the parties agree upon the specific measure of damages, if any.