Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 5)
1996-12-09
Ontario Board of Inquiry
Mike Naraine Complainant
and
Ontario Human Rights Commission Commission
v.
Ford Motor Company of Canada Ltd., Gord Batstone, George Gojtan, Andy Barr, W.H. Dobson, Bob Daragon and Mike Tighe Respondents
Before: Ontario Board of Inquiry, Constance Backhouse
Decision No.: 96-043-D
Appearances by: Mark Hart, Naomi Overend, Kikee Malik and Fiona Sampson, Counsel for the Commission Fiona Campbell, Michael McFadden, Cheryl Gaster and Karen Andrews (Agent), Counsel for the Complainant Steven Jovanovic, Lisa Kozma, Russell Juriansz and Anne Irwin, Counsel for the Respondents
Summary
This is a decision on remedy following the Board of Inquiry's ruling that Mr. Naraine was subjected to racial harassment in his working environment at Ford Motor Co. of Canada. The Board of Inquiry also concluded that Ford's decision to discipline and discharge Mr. Naraine was discriminatory.
The Board of Inquiry orders Ford Motor Co. to reinstate Mr. Naraine in his employment as an electrician, despite the fact that many years have passed since his discharge. The Board of Inquiry rejects arguments from the respondent that Mr. Naraine should not be reinstated because he was involved in a series of incidents for which he was disciplined, including several upheld by this Board of Inquiry, and that relations between Mr. Naraine, some representatives of his union and Ford supervisors and co-workers were severely damaged at the time of his dismissal. The Board of Inquiry finds that only the remedy of reinstatement would properly serve as restitution to Mr. Naraine. Reinstatement is the remedy which most fully restores Mr. Naraine to the position he would have enjoyed had the wrong not occurred.
The Board finds, further, that it is essential that steps be taken to ensure that Mr. Naraine's reintegration into the work force is successful. It orders Ford to provide appropriate retraining and employee assistance counselling to Mr. Naraine. It also encourages Ford to develop policies to discourage racist graffiti, name-calling and harassment within its plants, to develop an effective procedure to handle future race complaints, and to provide anti-racism education for its work force.
In addition, the Board orders Ford to compensate Mr. Naraine for the income and benefits he would have been entitled to from the time of his discharge in August 1985 until he found alternative employment in the spring of 1987; to restore Mr. Naraine's seniority to reflect continued employment up to the spring of 1987, and to expunge from his record all but the two disciplinary penalties found to be justified by this Board of Inquiry; to pay Mr. Naraine $20,000 in general damages for the infringement of his rights; to pay Mr. Naraine $10,000 for mental anguish caused by the reckless contravention of the Code; and to pay interest on the wage compensation and general damages.
[Ed. Note: See also Naraine v. Ford Motor Co. of Canada (No. 1) (1994), 1994 CanLII 18436 (ON HRT), 24 C.H.R.R. D/457, (No. 2) (1995), 1995 CanLII 18167 (ON HRT), 24 C.H.R.R. D/466, (No. 3) (1995), C.H.R.R. D/96-49 and (No. 4) (1996), 1996 CanLII 20059 (ON HRT), 27 C.H.R.R. D/230 (Ont. Bd.Inq.) and Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (1995), 1995 CanLII 7431 (ON CTGD), 24 C.H.R.R. D/464 (Ont. Ct. (Gen.Div.)).]
Cases Cited
Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 42
Canada (Attorney General) v. Grover (1992), 1992 CanLII 629 (CHRT), 18 C.H.R.R. D/1 (Can.Trib.): 37
Canada (Attorney General) v. Grover (1994), 1994 CanLII 18487 (FC), 24 C.H.R.R. D/390 (F.C.T.D.): 16, 37
Crook v. Ontario Cancer Treatment and Research Foundation (No. 3) (August 26, 1996), (Ont. Bd.Inq.) [unreported]: 39, 45, 47
Entrop v. Imperial Oil Ltd. (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd.Inq.): 39, 47
Foster Wheeler Ltd. v. Ontario (Human Rights Comm.) (1987), 1987 CanLII 8514 (ON HCJDC), 8 C.H.R.R. D/4179: 47
Grainger v. Pic Para Legal Services (1995), C.H.R.R. NP/96-116 (Ont. Bd.Inq.): 39, 47
Harrison v. University of British Columbia (1990), 1990 CanLII 12474 (BC HRT), 12 C.H.R.R. D/303 (B.C.C.H.R.): 23
Impact Interiors Inc. v. Ontario (Human Rights Comm.) (1995), 1995 CanLII 18145 (ON CTGDDC), 23 C.H.R.R. D/348 (Ont. Ct. (Gen.Div.)): 46
McEwen v. Warden Building Management Ltd. (1993), 1993 CanLII 16459 (ON HRT), 26 C.H.R.R. D/129 (Ont. Bd.Inq.): 39
Ontario (Human Rights Comm.) v. Ontario (Ministry of Health) (No. 2) (1995), 1995 CanLII 18153 (ON HRT), 24 C.H.R.R. D/250 (Ont. Bd.Inq.): 39, 47
Ontario (Liquor Control Board) v. Ontario (Human Rights Comm.) (1988), 1988 CanLII 8926 (ON HCJDC), 9 C.H.R.R. D/4868 (Ont. Div.Ct.): 35
Pitawanakwat v. Canada (Attorney General) (1992), 1992 CanLII 7190 (CHRT), 19 C.H.R.R. D/110 (Can.Trib.): 10
Pitawanakwat v. Canada (Attorney General) (1994), 1994 CanLII 3485 (FC), 21 C.H.R.R. D/355 (F.C.T.D.): 10
Tenant Hotline and Peters (Re) (1983), 1983 CanLII 4854 (ON LA), 10 L.A.C. (3d) 130: 6
Toronto (City) and C.U.P.E., Local 79 (1985), 1985 CanLII 5385 (ON LA), 18 L.A.C. (3d) 187: 6
Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), [1989] 1 S.C.R. 1805, 58 D.L.R. (4th) 193: 40
West End Construction Ltd. v. Ontario (Ministry of Labour) (1986), 1986 CanLII 2541 (ON HCJ), 9 C.H.R.R. D/4537 (Ont. Div.Ct.): 47
York Condominium Corp. No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 (Ont. Div.Ct.): 39
Legislation Cited
Ontario
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 127: 48, 50
Human Rights Code, R.S.O. 1990, c. H.19
s. 5(1): 1, 43
s. 5(2): 1, 43
s. 8: 1
s. 9: 1
s. 11: 1
s. 41: 3, 7, 35
s. 41(1): 42
Authorities Cited
Ontario, Ontario Law Reform Commission, Report on Exemplary Damages (1991): 41
Waddams, S.M., The Law of Damages, 2d ed., looseleaf (Toronto: Canada Law Book, 1991, Supp. 1995): 41
1This complaint involves a claim by Mike Naraine that his right to equal treatment with respect to employment has been infringed because of his race, colour, place of origin and ethnic origin, contrary to ss. 4(1), 4(2), 7, 8 and 10 of the Human Rights Code [S.O. 1981, c. 53, now ss. 5(1), 5(2), 8, 9 and 11 of] R.S.O. 1990, c. H.19].
2In an earlier decision, Naraine v. Ford Motor Company of Canada et al. (Decision No. 96-023, July 25, 1996 [reported 1996 CanLII 20059 (ON HRT), 27 C.H.R.R. D/230], this Board of Inquiry held that Mr. Naraine was subjected to racial harassment in his working environment at Ford. The Board also concluded that Ford's decision to discipline and discharge Mr. Naraine was discriminatory. Violations of both ss. 4(1) and 4(2) (now ss. 5(1) and 5(2)) of the Code were found. The Board retained jurisdiction to determine the matter of remedy, the issue which is the focus of this decision.
3The authority to make remedial orders flows from s. 41 of the Code. This provides that once a board of inquiry has found a right of the complainant to be infringed, the board may make an order to:
41(1)(a) direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and
(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilf[u]lly or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
I. REINSTATEMENT
4Counsel for the complainant claimed that Mr. Naraine was entitled to reinstatement with Ford, to a job comparable to the position he held when he was unjustly discharged. Respondent's counsel argued that reinstatement was not appropriate, given Mr. Naraine's history with the company and the length of time that has ensued since his termination. Counsel for the Commission took no position on reinstatement.
5Reinstatement is a remedy which is a creature of statute. At common-law, the courts refused to utilize the doctrine of specific performance in contracts of employment, preferring to award damages. By the middle of the 20th century, the judicial reluctance to order a disaffected employer to take back a discharged employee was transformed with the rise of collective bargaining, labour relations legislation and arbitral jurisprudence. Recognizing that tenure is one of the fundamental pillars of employment, labour arbitrators fashioned new doctrines in which they began to order reinstatement as a matter of right in cases where discharge was unjust.
6Arbitrators have held that so long as the employment relationship appears to be viable, reinstatement orders will issue: Re Corporation of the City of Toronto and Canadian Union of Public Employees, Local 79(1985), 1985 CanLII 5385 (ON LA), 18 L.A.C. (3d) 187 (Arbitrators I. Christie, M. Tate and B.M.W. Paulin). The current labour arbitration position is set out in Re Tenant Hotline and Peters (1983), 1983 CanLII 4854 (ON LA), 10 L.A.C. (3d) 130 at 138–39 (Arbitrator: R.O. MacDowell):
In an ordinary collective bargaining context... a finding that there is no just cause for discharge leads almost inevitably to a direction that the aggrieved employee should be reinstated. Sometimes an arbitrator will substitute some lesser penalty by way of a suspension, or award less than full compensation, but the unjustly discharged employee invariably gets his job back...
In this balancing exercise, arbitrators have recognized that job security and productivity are both interests worthy of protection, and that an over-emphasis on the purely contractual characteristics of the employer-employee relationship would obscure important interests of employees as individuals. Discharge can have devastating consequences for the individual and his family, and is no neutral event for the general community which must frequently absorb related unemployment or welfare costs. Employees invest a part of themselves in their jobs, and, as a matter of fairness, this investment should not be arbitrarily or unjustly extinguished.
7The Human Rights Code is a distinct and separate statute from the labour legislation under which such rules have been developed. However, the language of s. 41 is quite similar to the remedial provisions found in labour legislation. Adjudicators under the Code obviously have the authority to issue orders of reinstatement, and can have resort to the principles and values articulated in arbitration awards insofar as these conform to the goals and purposes of human rights legislation.
8Respondent's counsel took the position that a continued employment relationship between Mr. Naraine and Ford is not viable. He indicated that Mr. Naraine had accumulated a series of disciplinary incidents (including several upheld by this Board of Inquiry) for threatening a supervisor and a fellow employee and a physical altercation with a fellow employee. Witnesses testified to the damaged relations which existed between Mr. Naraine, some representatives of his union, Ford supervisors and co-workers at the time of his dismissal. The evidence adduced at the hearing indicates that, despite the time that has elapsed from the termination to the conclusion of this hearing, Mr. Naraine's name remains well-known at the plant. One witness who testified on behalf of [the] complainant stated that ten years later, Mr. Naraine is "still passionately hated".
9Labour arbitrators have given careful consideration to the problems posed by reinstating an employee into work settings where there is a long history of interpersonal tension and confrontation. They have recognized the disruption, friction and acrimony that can attend the reintegration of a discharged employee. They have acknowledged that the individual being reinstated may be a "marked person" whose reinstatement may constitute a fragile entitlement, good only so long as the individual neither quits in response to further unfair treatment nor provides the company with an opportunity to terminate again. Despite all of these concerns, arbitrators have continued to award reinstatement in virtually all cases. Arbitrator Innis Christie tried to articulate the reasoning behind the decision to reinstate (Re Corporation of the City of Toronto, supra, at 199–200):
There might be some room for concern in cases such as this that a reinstated grievor will be a "marked man", but in a modern employment regime we must avoid unwarranted paternalism. The grievor is, presumably, well aware of the situation. If he is not treated in accordance with the collective agreement he can again have recourse to the grievance procedure. If he is not treated unjustly and ends up worse off than he would have been had he been awarded damages in lieu of reinstatement he will, at least, have been afforded the dignity of a choice in the matter.
10This type of reasoning has provoked discussion in human rights jurisprudence as well. One human rights tribunal initially refused to reinstate the complainant to her original position at the Secretary of State office in Regina because it found that the "reunion would be a recipe for disaster", and that there was "too much bitterness between the parties to think that reinstatement of the complainant to her former job is workable" (see Pitawanakwat v. Canada (Secretary of State)(1992), 1992 CanLII 7190 (CHRT), 19 C.H.R.R. D/110 [at D/137, para. 93 (Can. Trib.). This decision was overturned by the Federal Court Trial Division which concluded that the potential for future problems did not justify a decision to refuse reinstatement, and that failing to grant full reinstatement could "minimize" and "enfeeble" the impact of human rights law (see Pitawanakwat v. Canada (Attorney General)(1994), 1994 CanLII 3485 (FC), 21 C.H.R.R. D/355).
11This Board has found that the circumstances resulting in Mr. Naraine's termination were discriminatory and contrary to the Code. Mr. Naraine testified that it was his wish to be reinstated, and he never wavered in this position. Now 53 years old, he explained that he believes he has given the better part of his working life to Ford, and feels that he still has much to offer the company. He also seeks reinstatement because he wishes to be part of the resolution of racial difficulties at Ford.
12Mr. Naraine has offered to accept reinstatement to any of Ford's Windsor plants, as well as to consider reinstatement to any of the corporation's plants in the United States, thus providing the respondent with significant leeway in selecting the work site it thinks will afford the likeliest opportunity for successful re-entry. Mr. Naraine has also offered to be accommodating in terms of the particular electrician's job to which he is assigned.
13The union that holds collective bargaining rights with the company is a strong and progressive labour organization. Although some of the union's Windsor representatives showed a surprising lack of understanding about racism and its effects upon Mr. Naraine, other union officials who testified were markedly more sensitive. There is a realistic prospect that the union will be able to monitor Mr. Naraine's continued employment fairly and with vigilance. On the balance of probabilities, the continuation of the employment relationship appears viable.
14During their oral argument, I invited submissions from counsel as to the financial value of reinstatement, had the Board decided not to require the respondent to re-employ Mr. Naraine. The costing out of the value of reinstatement is admittedly a complex and difficult task. Counsel for the complainant argued that the amount should be determined by adding up the full cost of Mr. Naraine's salary and benefits until the date of his projected retirement, plus some additional amount to compensate for the "non-economic value of reinstatement", a calculation which arrived at a total of well over a million dollars. Counsel for the Commission took the position that the amount sought by the complainant was unduly high, suggesting a figure that would be closer to half that amount, but did not offer any detailed explanation as to the basis for this figure. Counsel for the respondent offered a persuasive critique of the calculations of the other two parties, but failed to provide any specific quantification of his own. In my opinion, none of the submissions of counsel were particularly helpful on this point, and all failed to offer any convincing quantification of the economic worth of reinstatement in these uncertain economic times.
15After reflecting upon the problems inherent in quantifying the value of reinstatement, and considering all of the other factors present in this case, I have concluded that only the remedy of reinstatement would properly serve as restitution to Mr. Naraine. Reinstatement is the remedy which most fully attempts to put Mr. Naraine back into the position he would have enjoyed had the wrong not occurred, to "make whole" his loss resulting from the violation of the Code. Reinstatement can also serve the educational purposes of human rights legislation in that it will signify to all Ford supervisors, employees and members of the wider community, through a concrete and highly visible order, that discriminatory conduct will be redressed by boards of inquiry. Under the circumstances, the actual arrangements for reinstatement may take some weeks to complete. However, Mr. Naraine's entitlement to payment of compensation and benefits is effective upon the parties' receipt of this decision.
16In making an order for reinstatement, I am cognizant that the success of Mr. Naraine's continued employment with Ford is an important component of the goal of furthering racial harmony within the respondent's corporation. It is important for both parties, and critical to the public interest, that steps be taken to enhance the likelihood of Mr. Naraine's successful reintegration to the Ford work force. The purposes of the Code will only be realized to the extent that the parties are able to resolve their past differences and move towards a working environment which values racial integration and equality. Boards of inquiry have jurisdiction to ask the parties to try to work out the details of reintegration between themselves, while remaining seized of the matter in a supervisory capacity should there be unforeseen complications in complying with the order; see, for example, Canada (Attorney General) v. Grover(1994), 1994 CanLII 18487 (FC), 24 C.H.R.R. D/390 (F.C.T.D.). It is also open to a board of inquiry to issue guidelines to accompany an order of reinstatement, that will assist the parties in effecting a successful reconciliation. This appears to be precisely the sort of case which would benefit from this flexibility of approach. The evidence in this case suggests that an order for reinstatement may not result in a seamless re-entry into the automotive plant for Mr. Naraine. To attempt to maximize the prospects for success, movement is required from both sides to this dispute.
II. GUIDELINES TO ASSIST THE PARTIES IN REINSTATEMENT
17The respondent has an obligation to recognize and respond pro-actively to the potential problems that will face Mr. Naraine upon his re-entry. The first aspect of this responsibility is obvious and relates to the nature of the work environment that will greet Mr. Naraine when he resumes employment. Ford needs to take steps to make clear to all its employees that racist graffiti, name-calling and harassment are intolerable. Should problems arise despite Ford's best efforts at prevention, the company needs to ensure that all instances of discriminatory behaviour are met with swift and certain censure. What is somewhat less clear is how an order of this Board can contribute to the improvement of the respondent's working environment.
18The Ontario Human Rights Commission filed a number of requests that it argued would assist in rectifying the problems at Ford. First, it requested that Ford be ordered to post "Code cards" containing a brief summary of the rights protected under the Code, in a permanent location in visible places throughout the workplace. This appears to be a rather stock request on the part of the Commission, routinely made (and frequently granted) in employment cases over the course of the past decades. Its appropriateness as a remedy deserves further scrutiny at this point in the development of human rights jurisprudence.
19Presumably the intent of "posting" such Code cards is to educate employees and managers about the protections under the legislation. The goal is to ensure that should fresh violations occur, the work force would be thoroughly conversant with the avenues of redress. There is a growing literature on the reasons why individuals who experience discrimination do not file formal complaints. Lack of information regarding rights and complaint mechanisms is one, but only one, of a host of factors which result in vast numbers of victims refusing to seek legal redress. The problems run far deeper than this, encompassing fear of retribution and ridicule, reluctance to embark upon a process notorious for its delay, a history of damage awards strikingly lower than in the civil system, and recognition of the excessive emotional and financial costs of proceeding with a complaint. Even assuming that ignorance of the legal protections available for human rights is a critical factor here, the Commission's remedy is unduly narrow. Posting Code cards with a precis of the legislative provisions inscribed does little to extend the wide-ranging and detailed education that workers need concerning discrimination and the law. Assuming that such postings can have any significant impact on the norms and behaviours in the workplace seems naive at best, foolhardy at worst. The Commission ought to be examining the many reasons why individuals who have legitimate grievances refuse to utilize its procedures and working towards rectifying these deficiencies. Asking for directives to "post Code cards" is a relic from a bygone era, and deserves to be treated as such in future adjudication. This request is denied.
20The Commission also requested that the respondent be ordered to provide a series of educational seminars on racism, with attendance mandatory for all employees at Ford's Windsor plants. The Commission asked that the content of the seminars — which should include such topics as what constitutes racism, the harm associated with racism, avenues of redress available to victims, and the consequences of engaging in racist behaviour — should be assembled by experts acceptable to both the respondent and the Commission. In many cases, orders such as these form an important part of the remedial package for human rights proceedings. In the particular circumstances of this case, however, I do not think that issuing peremptory and mandatory orders concerning such educational seminars would contribute effectively to the elimination of racism at Ford at this time. I have commented earlier on the marked and extraordinary delays which characterized this case (eight years for the Commission to move the complaint from the investigation stage to a board of inquiry). Most of the evidence adduced at the hearing focused on incidents of discrimination which occurred between the 1970s and mid-80s. It would be difficult under these specific circumstances for the Board or the Commission to know exactly what sort of training would be most useful in this same work setting in the late 1990s.
21This is not to suggest that Ford has no need of anti-racism educational training within its plants. The evidence in this case speaks volumes about the pervasiveness of racial intolerance and the widespread insensitivity of Ford managers and employees to the nature and harm of racism. Unless the environment has magically transformed itself between the date of hearings and the present, racism continues to exist within the Windsor plants (as it does throughout many aspects of Canadian society). Ford would be well advised to direct its attention to improving matters through the utilization of expert consultants and with the aid of those within its work force and union who are knowledgeable about the specific problems at Ford.
22The respondent is a large-scale industrial corporation and is undoubtedly accustomed to seeking the advice of outside consultants on diverse matters. Ford management is now aware of the findings made against their organization in this hearing. The Canadian Auto Workers Union, while not a party to this proceeding, must also be aware of the problems with their handling of Mr. Naraine's difficulties that were uncovered during the hearing. In the circumstances of this case, the respondent and its union are the organizations with the greatest knowledge and capacity to design an effective educational program. Ford management in conjunction with its union should determine for themselves what sorts of interventions would improve the working environment. The failure to do so will only provoke more racist incidents, more human rights complaints, more labour relations complaints, more collective agreement grievances and more damage awards. With decisions such as Mr. Naraine's now a matter of public record, it will be increasingly difficult for Ford to take the position in future cases that it had no knowledge of the problems of racism within its plants. Ford must be only too cognizant of the potential for future liability should it fail to take effective measures to rectify the situation.
23The second aspect of the respondent's responsibility relates individually to Mr. Naraine. Mr. Naraine has been away from his job at Ford since August 1985. He will undoubtedly require re-training to permit him to become conversant with technological developments since his termination. Human rights tribunals have the authority to award training to complainants; see, for example, Harrison v. University of British Columbia(1990), 1990 CanLII 12474 (BC HRT), 12 C.H.R.R. D/303 (B.C.C.H.R.). In this case, it is appropriate to direct the respondent to make the necessary training available to Mr. Naraine, with the costs borne by the company.
24It is also foreseeable that Mr. Naraine may require employee assistance counselling to enable him to work out useful strategies to cope with stress after reinstatement. To the extent that the cost of such counselling is not already covered under the employment benefits package available to Mr. Naraine, the respondent is directed to compensate Mr. Naraine for reasonable counselling expenses associated with the reintegration process.
25It is also foreseeable that Mr. Ford may have fresh complaints about racial harassment and racial discrimination after he is reinstated to his employment. It is the obligation of the respondent to ensure that there is an effective avenue to handle racial complaints within the company, that will quickly and thoroughly resolve all problems that may arise. Some of the attributes of successful complaints procedures include: (1) safe and easy access for employees wishing to register complaints; (2) well-trained individuals assigned to investigate difficulties; (3) speedy and thorough efforts at resolution; (4) effective remedial measures where problems prove irresolvable through conciliation. The respondent has an additional obligation to ensure that Mr. Naraine is clearly aware of the process by which he should register such complaints with the company.
26Mr. Naraine also has a role to play in the process of successful reinstatement. In an earlier decision of this proceeding (Naraine v. Ford Motor Company of Canada, supra), the Board found that Mr. Naraine made verbal threats to one of his supervisors, Andy Barr, and verbal threats and physical contact with Victor Mena, a co-worker. This Board ruled that such behaviour, whether or not provoked by specific instances of racism or the wider level of general racism in the plant, was unacceptable in the workplace. Violence and threats of violence go far beyond any definition of tolerable behaviour. The Board held that these acts constituted disciplinable offences which would justify a suspension of several weeks' duration.
27Throughout the hearing, counsel for the respondent drew repeated attention to Mr. Naraine's track record of losing his temper. Mr. Naraine must accept that responding to racism with violence and threats of violence is completely unjustifiable. Just as it is foreseeable that Ford's working environment may continue to generate problems of racism, it is also foreseeable that Mr. Naraine may lose his temper in response to racist acts. He has a responsibility to work towards the acquisition of skills and techniques which have been designed to facilitate temper control.
28I should be clear that I do not mean to suggest that the overall solution to racial harassment is the development of "anger management" techniques. It should be stressed that Mr. Naraine's anger was not a contributing cause of the racism in the workplace, not does it in any way diminish Ford's responsibility for the violations of the Code. As I stated in an earlier decision, many of Mr. Naraine's outbursts in the plants are eminently understandable as a legitimate response to racism, directly provoked by the racial abuse directed at Mr. Naraine. However, a simple loss of temper must be distinguished from outbursts which encompass physical violence and threats of physical violence. The latter behaviour is never tolerable in the workplace. Neither Mr. Naraine nor the public will benefit from an order for reinstatement if incidents such as these continue.
29In the past few years, specialized courses in "anger management" training have been developed for individuals who have experienced problems with violent assault. Referrals to experienced therapists, who offer group or individual sessions that run for approximately sixteen weeks, can typically be obtained from community organizations such as the John Howard Society and the Family Services Association. While I think that it would be extremely helpful for Mr. Naraine to enroll in sessions such as these, under the circumstances of this case, it should be left up to Mr. Naraine himself to pursue counselling, in the say way that the respondent has been left to design its own program of anti-racist initiatives.
III. REMEDIES RELATING TO SPECIAL DAMAGES FOR BACK-PAY AND BENEFITS
30Counsel for the complainant requested compensation for back-pay (including overtime and credit for vacation days) to the date of reinstatement, less any mitigated earnings. They also requested the reinstatement of Mr. Naraine's seniority and pension to date continuously from the time of his original hire to the present. Counsel for the Commission sought back pay only to the date of Mr. Naraine's hiring at General Motors in the spring of 1987. The Commission indicated that this constituted comparable employment and terminated Ford's liability. Respondent's counsel also argued that any liability on the part of his client was severed upon Mr. Naraine's hiring at General Motors.
31In the circumstances of this case, the appropriate order is for back-pay only up to the date that Mr. Naraine obtained employment with General Motors. Mr. Naraine was under a legal obligation to mitigate his losses, which he did. When he secured a position as an electrician at General Motors, this constituted comparable employment and terminated the respondent's continuing liability. The fact that Mr. Naraine was discharged from General Motors in the spring of 1989 does not reactivate Ford's liability. Counsel for the complainant argued that the circumstances of Mr. Naraine's termination at General Motors also centred around complaints of racism in the plant. This too, does nothing to reactivate Ford's liability for back-pay. Mr. Naraine brought a separate human rights complaint against General Motors, a proceeding which was settled between the complainant and his employer before it got to adjudication. Whatever losses Mr. Naraine experienced pursuant to his claims against General Motors were resolved with the final and binding settlement he signed then. These losses cannot be mobilized afresh and drawn back retroactively into the present proceeding.
32The respondent is ordered to pay Mr. Naraine special damages in the amount of what he would have earned in his position at Ford from the date of discharge to the date he assumed employment with General Motors, subject to the following limitation. This Board earlier held that Ford was justified in taking some disciplinary action against Mr. Naraine for his actions with respect to Andy Barr and Victor Mena. Based on the evidence before me concerning Ford's disciplinary practices, suspension for six days on the first incident and twelve days on the second would appear to be an appropriate penalty. Consequently, Mr. Naraine's award for back-pay must be reduced by the compensation he would have earned during those eighteen days. The overall amount should be calculated to include a component for overtime and any wage increases that may have occurred during the relevant period, reduced by the usual employment deductions. Mr. Naraine obtained several short-term positions outside of the automotive sector during this period, and these mitigated wages must also be deducted. Seniority, pension benefits and vacation entitlement should accrue from the date of discharge in August 1985 to the date of hiring at General Motors in the spring of 1987. To the extent that Mr. Naraine can document costs he has borne which would otherwise have been paid for under the employee benefit package (medical, dental, etc.), these too are compensable during the relevant period.
IV. LEGAL COSTS
33Counsel for the complainant explained that Mr. Naraine has accumulated sizeable legal bills attributable to this proceeding. In complex human rights proceedings, it has become routine for complainants to retain private counsel. Counsel for the Commission is appointed to represent the public interest, and at points the Commission's sense of the public interest may diverge substantially from the interests of the complainant. Increasingly, complainants are exhibiting some reluctance to entrust the proceeding solely to Commission counsel. In cases such as this, where the record indicates extraordinary delay, indecision and change of opinion on the part of the Commission, complainants' worries are far from ephemeral.
34Each of the many lawyers who appeared in this proceeding demonstrated superb litigation skills. Without fail, they exhibited exceptional talent, wide-ranging knowledge of the case and thoughtful legal analysis. The role played by Mr. Naraine's own counsel was also outstanding. In this proceeding, Mr. Naraine's decision to retain private representation indicated exceptionally good judgment. Through significant stretches of its process, the Commission was unable to look after Mr. Naraine's interests in a timely and effective fashion. The lawyers and agent who appeared on behalf of Mr. Naraine called crucial evidence and contributed singularly important argument before this Board.
35In this context, counsel for the complainant asked this Board to award Mr. Naraine the legal costs he incurred as they related directly to this proceeding. The basis for this claim, they argued, rests with the broadly remedial power of a board of inquiry under s. 41 of the Code to "direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act", and to "direct the party to make restitution, including monetary compensation, for loss arising out of the infringement". The wording of this section would seem to be sufficiently broad to encompass a complainant's legal costs. However, the Ontario Divisional Court ruled otherwise in Karumanchiri v. Liquor Control Board of Ontario (1988), 1988 CanLII 8926 (ON HCJDC), 9 C.H.R.R. D/4868 at D/4875 [paras. 37672–75]:
There is no inherent jurisdiction in a court, nor in any other statutory body, to award costs.
The Board of Inquiry is created by the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. As a statutory body it can only have jurisdiction to award costs if such jurisdiction is expressly given to it either by the Code or some other Act.
The legislature has expressly provided for the recovery of costs in limited circumstances "to the person complained against" under section 40(6) [now s. 41(4)] of the Ontario Human Rights Code... The power of the Board of Inquiry under section 40(1) to "make restitution including monetary compensation" is not an express provision for the award of costs to complainants under the Code. The rule of liberal interpretation to carry out the objects of the Code to, as far as possible, remedy the effects of and prevent discrimination do not apply to procedural matters or the question of costs.
Under the principle of statutory interpretation, expressio unius exclusio alterius, by expressly providing boards of inquiry with the authority to award costs only in section 40(6) [now s. 41] of the Code, the legislature has excluded jurisdiction to award costs otherwise under the Code.
36The award of costs overturned by the Ontario Divisional Court in the latter case had originally been made to respondents, but it would seem that the Court's analysis applies to all orders of costs. In accordance with the Divisional Court ruling, it appears that boards of inquiry do not have jurisdiction to award costs except in accordance with s. 41(4), where there is a finding that the complaint was trivial, frivolous, vexatious, made in bad faith, or caused undue hardship to the respondent.
37To accept this position as the current state of the law is not to imply acquiescence or agreement. The Code speaks only to the legal costs of the respondents, ostensibly assuming that complainants require no separate counsel from that of the Commission. This is increasingly at odds with the experience and practice of human rights complainants. Other jurisdictions permit boards of inquiry to award legal costs in appropriate cases; see, for example, Grover v. National Research Council of Canada(1992), 1992 CanLII 629 (CHRT), 18 C.H.R.R. D/1 at D/54 (Can.Trib.); aff'd without consideration of the issue of legal costs in Canada (Attorney General) v. Grover, supra. The courts might be asked to revisit their analysis of this matter in the near future. Failing that, legislative revision is clearly in order.
38The respondent's counsel has also asked this Board to entertain an application for costs. Counsel was not able to file the argument prior to the issuing of this decision, but advised that the application will relate to the portions of the complaint that were dismissed against the corporate respondent, and the failure of the Commission's case against the six Ford employees who were named as individual respondents. I will retain jurisdiction to hear arguments on this point, to be scheduled immediately after the release of this decision.
V. GENERAL DAMAGES
39In Ontario, human rights adjudicators have divided awards for general damages into two headings. The first branch covers non-pecuniary intangible damages arising from infringement of the Code. The Ontario Divisional Court has specified that this head of damages cannot encompass mental anguish or stress; see York Condominium Corp. No. 216 v. Dudnik(1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406. Boards have continued to award compensation under this branch for, among other things, loss of the right to be free from discrimination and the experience of victimization; see, for example, McEwen v. Warden Building Management Ltd. (unpublished decision, November 14, 1993, Ont. Bd.Inq. [now reported 1993 CanLII 16459 (ON HRT), 26 C.H.R.R. D/129]); Entrop v. Imperial Oil Ltd. (No. 7)(1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd.Inq.); Ontario (Human Rights Comm.) v. Ontario (Ministry of Health) (No. 2) (1995), 1995 CanLII 18153 (ON HRT), 24 C.H.R.R. D/250 (Ont. Bd.Inq.); Grainger v. Pic Para Legal Services (unpublished decision, September 15, 1995, Ont. Bd.Inq. [C.H.R.R. NP/96-116]); Crook v. Ontario Cancer Treatment and Research Foundation (unpublished decision, August 26, 1996, Ont. Bd.Inq.). There is no ceiling on the amount of damages that can be awarded under this heading.
40The second branch covers compensation for complainants who have experienced mental anguish where the respondent has acted in a wilful or reckless manner. Some earlier decisions described such awards as "punitive", a characterization that has been criticized by the courts as beyond the jurisdiction of a board of inquiry; see, for example, York Condominium, supra. A clearer and more accurate characterization of this branch of recovery is that it represents "aggravated" damages. In Vorvis v. I.C.B.C.(1989), 1989 CanLII 93 (SCC), 58 D.L.R. (4th) 193 at 201, the Supreme Court of Canada distinguished between damages for mental distress, "which would include cases properly classified as aggravated damages" and punitive or exemplary damages:
Punitive damages, as the name would indicate, are designed to punish. In this, they constitute an exception to the general common law rule that damages are designed to compensate the injured, not to punish the wrongdoer. Aggravated damages will frequently cover conduct which could also be the subject of punitive damages, but the role of aggravated damages remains compensatory...
Aggravated damages are awarded to compensate for aggravated damage... [T]hey take account of intangible injuries and by definition will generally augment damages assessed under the general rules relating to the assessment of damages.
41In its Report on Exemplary Damages (1991) at 27, the Ontario Law Reform Commission describes aggravated damages as
merely a particular type of compensatory general damages, legitimate in their own right, as part of the standard compensatory function of tort law. The purpose of aggravated damages is to compensate the victim for aggravated injury to "the plaintiff's proper feelings of dignity and pride".
Professor Waddams also considers the nature of aggravated damages in The Law of Damages, 2d ed. (1995) at 11-1, noting that
aggravated damages describes an award that aims at compensation, but takes full account of the intangible injuries, such as distress and humiliation, that may have been caused by the defendant's insulting behaviour.
42The maximum award that can be ordered under this branch of s. 41(1) is $10,000. Before awarding damages under this branch, boards must find that the complainant has experienced "mental anguish" and that this was caused by the respondent's wilful or reckless breach of the Code. Professor Cumming, as he then was, defined "recklessly" in Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at D/2198 [para. 18546]:
It seems to me that "recklessly" as used in paragraph 40(1)(b) [now 41(1)(b)], and preceded by the phrase "where the infringement has been engaged in..." means more than mere or ordinary negligence. For the "infringement to be engaged in recklessly" means the contravenor's conduct must be such as to evince disregard of or indifference to consequences, that is, the conduct is done with rashness or heedlessness; it is done wantonly. The state of mind of the contravenor pays no regard to the probable or possibly injurious consequences accompanying her conduct, and the contravenor persists in spite of such knowledge.
43In the circumstances of this case, it is appropriate to make an order for damages under both branches of s. 41(1). With reference to the first branch, Mr. Naraine experienced racial harassment in his working environment, racially discriminatory discipline, and racially discriminatory discharge. The respondent's contraventions of the Code were not isolated, single events but continuous, on-going breaches spanning a significant length of time and violating two separate sub-sections of the Code. Mr. Naraine is entitled to $10,000 in compensation for the violation of s. 4(1) [now s. 5(1)] and $10,000 in compensation for the violation of s. 4(2) [now s. 5(2)], making a total of $20,000 in general damages for the intrinsic value of the infringement of his rights and as compensation for his experience of victimization.
44Under the second branch of the test, Mr. Naraine is entitled to $10,000 for mental anguish caused by the respondent's recklessness in contravening the Code. The evidence adduced during this hearing attests dramatically to the magnitude of emotional damage that Mr. Naraine experienced because of the racial discrimination he endured. The statutory ceiling is very low, and reflects legislative perspectives set more than a decade ago when the value of money was considerably higher. The many discriminatory events which occurred within the respondent's plants took place over an extended period of time. The evidence indicates that the respondent's supervisors were aware of most of the practices, and directly contributed to many others. The company's virtual indifference to racial slurs and graffiti indicates rashness and heedlessness, and a virtual disregard of the consequences. The evidence warrants a finding that the respondent's actions were "reckless" within the definition listed above.
VI. INTEREST
45Professor Dawson describes the current state of Ontario human rights law on pre-judgment interest in Crook, supra, at 54:
In Board of Inquiry decisions under the current Code and since the influential initial decision of Cameron v. Nel-Gor Castle Nursing Home(1984), 5 C.H.R.R. D/2[1]70 (Cumming), Boards have considered that they have jurisdiction to award prejudgment interest on both special and general damage awards along the approach of interest awards as stipulated by civil actions legislation (formerly the Judicature Act, now the Courts of Justice Act, R.S.O. 1990, c. C.43). Certainly section 41(1)(b) of the Code permits a Board of Inquiry to award monetary compensation "for loss arising out of the infringement" in directing restitution in order to place the complainant in the position she would have been in had the discrimination not occurred. Consistent with West End Construction [v. Ontario (Ministry of Labour) (1986), 1986 CanLII 2541 (ON HCJ), 9 C.H.R.R. D/4537], I interpret this as including a right to award prejudgment interest. It may also be noted that the Respondents have had the use of the sum due to Dr. Crook throughout the period.
46Counsel for the Commission sought an award of interest, but also cited the recent decision of the Ontario Divisional Court in Impact Interiors v. Ontario (Human Rights Comm.) (1995), 1995 CanLII 18145 (ON CTGDDC), 23 C.H.R.R. D/348, which noted briefly that the Code "does not provide for an award of interest". Counsel advised that in the wake of this decision, it is no longer entirely clear whether boards of inquiry have the jurisdiction to award interest. It is not apparent from the Impact Interiors decision whether the ruling is restricted to the particular facts of the case, in which no claim for interest was made. The Board in Crook noted that it is reasonable "to assume that the case law was not before the Divisional Court on this point.
47Two other rulings of the Divisional Court run entirely opposite to Impact Interiors, indicating that boards of inquiry do have jurisdiction to award interest; see Scott v. Foster Wheeler Ltd.(1987), 1987 CanLII 8514 (ON HCJDC), 8 C.H.R.R. D/4179; West End Construction [v. Ontario (Ministry of Labour) (1986), 1986 CanLII 2541 (ON HCJ), 9 C.H.R.R. D/4537]. Impact Interiors is currently under appeal, and I was advised that boards of inquiry issuing decisions after Impact Interiors have continued to award interest in accordance with their normal practice while they await further instruction from the appeal ruling; see, for example, Grainger, supra; Crook, supra; Entrop, supra; Roberts, supra.
48In the circumstances of this case, it is appropriate to order pre-judgment interest on the special and general damages, at a rate calculated in accordance with s. 127 of the Courts of Justice Act [R.S.O. 1990, c. C.43]. The interest is payable from the date that the Commission notified the respondent of the complaint. There were two complaints in this proceeding, the first dated May 24, 1985, and the second dated October 24,1985. Since the entirety of the case was not apparent to the respondent until the second complaint was filed, the interest ought to begin to run on the date that the Commission served notice upon the respondent of the second complaint dated October 24, 1985.
VII. OTHER REMEDIES WITH RESPECT TO MR. NARAINE
49Counsel for the complainant and the Commission requested that the respondent be ordered to make revisions to Mr. Naraine's employment record to expunge reference to his series of disciplinary penalties. With the exception of the six-day suspension in relation to the Andy Barr incident, and the twelve-day suspension from the Victor Mena incident, any such disciplinary notations should be deleted.
SUMMARY
50The respondent is ordered to do the following:
reinstate Mr. Naraine in employment, with entitlement to wages and benefits commencing upon the date the parties receive this decision;
pay Mr. Naraine special damages to compensate for the income and benefits he would have been entitled to for the period from his discharge at Ford in August 1985 to his hiring at General Motors in the spring of 1987 (the calculation must also reflect his suspension for eighteen days during that period);
restore Mr. Naraine's seniority to reflect continued employment up to the date of his hiring at General Motors, and expunge from his disciplinary record all but the two disciplinary penalties justified under this proceeding;
provide appropriate re-training and employee assistance counselling to Mr. Naraine;
pay Mr. Naraine $20,000 as general damages to compensate him for the intrinsic value of the infringement of his rights and as compensation for his multiple experiences of victimization;
pay Mr. Naraine an additional $10,000 for mental anguish caused by the reckless contraventions of the Code.
pay Mr. Naraine pre-judgment interest on his special and general damages, payable from the date that the Commission notified the respondent of Mr. Naraine's second complaint of October 24, 1985, at rates pursuant to s. 127 of the Courts of Justice Act.
51This decision also recommends a series of additional steps be considered by the respondent and the complainant, although none of the following items are the subject of a formal and binding order. The respondent should consider:
the development of policies to discourage racist graffiti, name-calling and harassment within its plants and to ensure that any such incidents that may arise are met with swift and certain censure;
the development of an effective procedure to handle future race complaints; and
the provision of anti-racism education for its work force.
52The complainant should consider enrolling in a course of training which will assist him in the acquisition of skills and techniques which have been designed to facilitate temper control.
53This Board will remain seized of this proceeding, retaining jurisdiction to hear and decide any outstanding matters related to this decision which are not capable of resolution by the parties themselves.