McCallum v. Toronto Transit Comm. (No. 2)

1997-09-16

Ontario Board of Inquiry

John McCallum Complainant

and

Ontario Human Rights Commission Commission

v.

Toronto Transit Commission Respondent

and

Attorney General of Ontario Intervener

Date of Complaint: January 6, 1994

Date of Decision: September 16, 1997

Before: Ontario Board of Inquiry, G.K. McNeilly

Decision No.: 97-019

Appearances by: Fiona Sampson, Counsel for the Commission John McCallum, on his own behalf David Wakely, Counsel for the Respondent Peter Landmann, Counsel for the Intervener

DAMAGES — damages assessed for wilful or reckless discrimination — compensation for injury to dignity and self-respect

Summary: This is a decision about a personal remedy for John McCallum in a complaint alleging that the Toronto Transit Commission discriminates against gay and lesbian employees. John McCallum alleged that the Toronto Transit Commission failed to provide employees with same-sex partners with the same employment benefits as employees with opposite-sex partner.

The hearing on the merits was adjourned when the Toronto Transit Commission agreed to be bound by the decision in a related case, Dwyer v. Toronto (Metro). In that case a Board of Inquiry ruled that an identical policy of the Municipality of Metropolitan Toronto violated the Ontario Human Rights Code's prohibition against discrimination in employment based on sexual orientation.

The Board of Inquiry orders the Toronto Transit Commission to pay John McCallum $2,500 as compensation for loss of the right to be free from discrimination.

CASES CITED

Blainey v. Ontario Hockey Assn. (No. 2) (1988), 1988 CanLII 8886 (ON HRT), 9 C.H.R.R. D/4972 (Ont. Bd.Inq.): 12

Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 6

Crabtree v. 671632 Ontario Ltd., (1996), C.H.R.R. NP/97-25 (Ont. Bd.Inq.): 12

Crook v. Ontario Cancer Treatment and Research Foundation (No. 3) (1996), 1996 CanLII 20054 (ON HRT), 30 C.H.R.R. D/104 (Ont. Bd.Inq.): 6

Dwyer v. Toronto (Metro) (No. 3) (1996), 1996 CanLII 20051 (ON HRT), 27 C.H.R.R. D/108 (Ont. Bd.Inq.): 1

Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513, 124 D.L.R. (4th) 609: 7

Grainger v. Pic Para Legal Services (1995), C.H.R.R. NP/96-116 (Ont. Bd.Inq.): 6

Leshner v. Ontario (No. 2) (1992), 1992 CanLII 14288 (ON HRT), 16 C.H.R.R. D/184 (Ont. Bd.Inq.): 7, 12

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.): 6

York Condominium Corp. No. 216 v. Dudnik (No. 2) (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325 (Ont. Bd.Inq.): 6

York Condominium Corp. No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 (Ont. Div.Ct.): 6

LEGISLATION CITED

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 128: 8

Human Rights Code, R.S.O. 1990, c. H.19

s. 41: 2

s. 41(1)(b): 5

Municipality of Metropolitan Toronto Act, R.S.O. 1990, c. M.62, s. 107: 3, 13

INTRODUCTION

1The hearing in this matter was commenced via conference call on May 26, 1995. On January 11, 1996, a motion was brought by the intervener, the Attorney General of Ontario (“AG”), for an order adjourning the proceeding until a decision of the Board was rendered in Dwyer v. Toronto (Metro) (No. 3)(1996), 1996 CanLII 20051 (ON HRT), 27 C.H.R.R. D/108. On March 29, 1996, I granted the adjournment. A decision in Dwyer was released on September 27, 1996.

2Subsequent to the Dwyer decision, the parties settled the merits of the instant complaint, leaving only the assessment of damages to be adjudicated. All parties to this proceeding agreed that s. 41 of the Human Rights Code, R.S.O. 1990, c. H.19 should be applied to assess damages, if any.

3The complainant in this matter alleged discrimination with respect to employment, on the basis of sexual orientation, by the Toronto Transit Commission (“TTC”). Specifically, the complaint related to the definition of “spouse” in s. 107 of the Municipality of Metropolitan Toronto Act, R.S.O. 1990, c. M.62 (“MMTA”) and the policy of the TTC to deny spousal benefits to same-sex spouses, allegedly in violation of the Human Rights Code.

SUBMISSIONS

4Counsel for the Human Rights Commission (the “Commission”) submitted that there is a presumption in favour of general damages. The guiding principle in human rights law is to have meaningful compensation to make the complainant whole.

5In this regard, the Commission advanced claims for damages under the Code, s. 41(1)(b) paraphrased:

(i) restitution for loss arising out of the infringement; and

(ii) monetary compensation for mental anguish where the infringement has been engaged in wilfully or recklessly.

6Commission counsel referred to a number of decisions in support of an award of damages, including: Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170; Dudnik v. York Condominium No. 216 (No. 2) (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325; York Condominium Corporation No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406; Ontario (Human Rights Comm.) v. Ontario (Ministry of Health) (No. 2) (1995), 1995 CanLII 18153 (ON HRT), 24 C.H.R.R. D/250; Grainger v. Pic Para Legal Services (unreported, September 15, 1995, Ont. Bd.Inq. [C.H.R.R. NP/96-116]); and Crook v. Ontario Cancer Treatment and Research Foundation (No. 3) (unreported, August 26, 1996, Ont. Bd.Inq. [reported 1996 CanLII 20054 (ON HRT), 30 C.H.R.R. D/104]).

7Commission counsel argued that compensation is merited because of the nature of the discrimination the complainant faced and the ongoing effect the whole matter had on him. She submitted that the complainant testified that the whole matter caused him frustration and a great amount of stress, so much so that it was necessary for him to seek psychological counselling. While acknowledging that the respondent, TTC, was not solely responsible for all that occurred, the complainant takes the position that its hesitance to deal with the matter to extend benefits contributed to and aggravated his stress and medical problems. The complainant also took the position that it was reckless of the respondent to not extend benefits to him and his partner, after recent court decisions such as Egan v. Canada(1995), 1995 CanLII 98 (SCC), 124 D.L.R. (4th) 609 and this Board's decision in Leshner v. Ontario (No. 2)(1992), 1992 CanLII 14288 (ON HRT), 16 C.H.R.R. D/184 (Bd.Inq.). This allegedly reckless conduct left him feeling insulted and showed the TTC to be a corporation lacking in humanitarian concerns.

8Commission counsel claimed for general damages an award of $10,000 and, for mental anguish for the reckless behaviour of the respondent TTC an award of $2,000. In addition, the Commission claimed pre-judgment interest pursuant to s. 128 of the Courts of Justice Act [R.S.O. 1990, c. C.43]. No claim was made for special damages arising from the TTC's policy.

9Counsel for the respondent TTC submitted that the purpose for awarding damages is to put the person back in the position he was [in] before the alleged infringement. The parties agree that the complainant suffered no financial loss as at all times he was covered on full benefits plus the respondent had undertaken to cover his benefits if they ran out.

10The respondent took the position that its governing statute, the MMTA, prevented it from extending benefits to same-sex spouses. The TTC submitted that it was in fact sympathetic to the complainant's position but the TTC was advised that it would be a violation of its governing statute if it extended benefits to same-sex spouses. To extend benefits before the decision in Dwyer, the TTC submitted, it would have had to exercise a power and authority not granted to it by its enabling statute.

11On requesting an adjournment of this matter, the respondent undertook to accept the decision of the Board of Inquiry in Dwyer that involved a similar challenge to same-sex definition of “spouse”. The Board in Dwyer found the definition of spouse to be discriminatory and ordered that benefits be extended to same-sex spouses. Prior to the resumption of this instant hearing, the respondent extended same-sex benefits to the complainant. As there was no financial loss suffered by the complainant or his same-sex spouse, the respondent argued that there should be no award made in favour of the complainant.

12In support of its submissions, the respondents presented the following cases: Leshner, supra; Crabtree v. 671632 Ontario Ltd. (c.o.b.) Econoprint (Stoney Creek)), [1996] O.H.R.B.I.D. No. 37 (QL) [C.H.R.R. NP/97-25] (Ont. Bd.Inq.); and Blainey v. Ontario Hockey Assn. (No. 2)(1988), 1988 CanLII 8886 (ON HRT), 9 C.H.R.R. D/4972 (Ont. Bd.Inq.).

DECISION

13I have considered the submissions of the parties. The hearing in this matter did not continue on the merits because of the respondent's undertaking to follow the decision in Dwyer. In my view, the TTC did not intentionally apply a policy or take a position which it knew would infringe the complainant's rights under the Code. It acted within the strict mandate of its statute but was also aware of the developing body of case law that found definitions similar to s. 107 MMTA to be inconsistent with today's equality values. I am persuaded by the following factors: early on in the proceedings, the respondents gave an undertaking to cover any costs or expenses incurred by the complainant that was not otherwise covered by his policy; and, the respondent's human resources personnel worked closely with the complainant to provide him with resources and a vehicle to express and disseminate his views throughout the organization. I find that the evidence does not show a pattern of wilful or reckless disregard for the complainant's rights such as might support an award for mental anguish.

14The fact that the TTC felt it may have been technically without authority to grant benefits to persons in same-sex relationships does not absolve it of responsibility. The Municipality of Metropolitan Toronto, the TTC's governing body, had extended benefits to same-sex spouses since 1992, even though it did so on an “interim” basis because it too had a statutory definition of “spouse” similar to that in the MMTA. The TTC could have copied Metro and concluded this matter sooner. There is no question in my mind that the complainant suffered stress and anxiety given that he had to sustain this complaint over a period of three years. The TTC's lack of intention is not reason enough to refuse to make an award to compensate the complainant for losses arising out of the infringement. I therefore find that this is an appropriate matter in which to make a compensatory award. In doing so, I am relying on the decision of Dwyer, which decision the TTC accepted to settle the instant matter. The complainant, I accept, experienced infringement of his right to be free from discrimination and I order an award of $2,500 to compensate the complainant for this infringement.

ORDER

15The respondent TTC is ordered to pay to the complainant as general damages:

(a) the sum of $2,500 as compensation for the loss of his right to freedom from discrimination;

(b) pre-judgment interest from the date [that] the complaint was filed, January 6, 1994, to January 11, 1996, the date of the motion to adjourn, calculated at the rate of 4.3 percent per annum on the amount of $2,500.