Abouchar v. Toronto (Metro) School Board (No. 4)
1999-04-23
Alfred Abouchar Complainant
Ontario Human Rights Commission Commission
Metropolitan Toronto School Board (now Toronto District School Board No. 12) and Conseil des écoles françaises de la communauté urbaine de Toronto (Conseil scolaire public du district centre-sud-ouest no 58) Respondents
Date of Complaint: July 6, 1989 Date of Decision: April 23, 1999 Before: Ontario Board of Inquiry, Katherine Laird Decision No.: 99-002-R
Appearances by: M. Catherine Osborne, Counsel for the Commission Maurice Green, Counsel for the Complainant Brian A. Kelsey and Eric Gillespie, Counsel for the Respondent Metropolitan Toronto School Board John W. May, Counsel for the Respondent Conseil des écoles françaises de la communauté urbaine de Toronto
DAMAGES — damages assessed for relocation expenses and for wilful or reckless discrimination — general damages — determining quantum by establishing duration of award and by using reasonable foreseeability test — special damages — compensation for injury to dignity and self-respect and lost wages — calculation of interest — mitigation operates to reduce award
REMEDIES — apology — display decision in workplace — employment hiring policy to be reviewed — hiring policy to include reference to reprisal protection in human rights legislation — notice of employment vacancies to complainant — publication of decision
Summary: This is a decision on remedies in the case of Alfred Abouchar who complained that he was discriminated against by the Metropolitan Toronto School Board and Le Conseil des écoles françaises de la communauté urbaine de Toronto (CÉFCUT) because of his race, place of origin, and ethnic origin and that he was subjected to reprisals because he had previously filed a human rights complaint.
In an earlier decision, the Board of Inquiry found that the Metro Board infringed Mr. Abouchar's rights by allowing a previous human rights complaint to be a contributing factor in its decision not to offer Mr. Abouchar a seconded position as an Assistant Superintendent in June 1988. In addition, the Board of Inquiry found that CÉFCUT had not treated Mr. Abouchar equally as a candidate in its December 1988 competition because of his place of origin, specifically because he was not a person of Franco-Ontarian origin.
The Board of Inquiry concludes that the Toronto District School Board, as the successor to the Metropolitan Toronto School Board, should pay to Alfred Abouchar an amount equal to the income he would have received had he been successful in the May 1988 job competition for the position of Assistant Superintendent, that is, the wages for that position from August 1, 1988, to July 6, 1989, minus his other earnings during this period.
In addition, the Board orders the Toronto Board to pay Mr. Abouchar's moving expenses for relocating to Ottawa to work, general damages in the amount of $6,000, and damages for mental anguish in the amount of $8,000, all with interest.
The Board orders the successor school board to CÉFCUT to pay Alfred Abouchar general damages in the amount of $6,000, and damages for mental anguish of $10,000, with interest.
Further, the Board orders the successor school board to CÉFCUT to provide Mr. Abouchar with a letter acknowledging that CÉFCUT was found to have infringed his right to equal treatment without discrimination with respect to the May 1988 competition for Assistant Superintendent.
The two school boards are ordered to post the decision of the Board of Inquiry in each of their administrative offices in the Toronto area, to provide copies of a summary of the decision in the staff rooms of all schools under their jurisdiction, to develop and implement a recruitment policy that incorporates the reprisal protection in the Human Rights Code, and to notify Mr. Abouchar of any vacancies for which he is qualified at or above the level of principal for a period of one year from the date of the Board's order.
[Ed. Note: See also (No. 1) (1995), C.H.R.R. NP/96-106, (No. 2) (1996), NP/96-50 and (No. 3) (1998), 1998 CanLII 29892 (ON HRT), 31 C.H.R.R. D/411 (Ont. Bd.Inq.).]
CASES CITED
Abouchar v. Toronto (Metro) School Board (No. 3)(1998), 1998 CanLII 29892 (ON HRT), 31 C.H.R.R. D/411 (Ont. Bd.Inq.): 36
Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 27
Canada (Attorney General) v. Morgan (1989), 1989 CanLII 138 (CHRT), 10 C.H.R.R. D/6386 (Can.Trib.): 26, 44
Canada (Attorney General) v. Morgan (1991), 1991 CanLII 13184 (FCA), 85 D.L.R. (4th) 473, 21 C.H.R.R. D/87 (F.C.A.): 16
Canada (Attorney General) v. Rosin (1990), 1990 CanLII 12957 (FCA), 16 C.H.R.R. D/441 (F.C.A.): 43
Drummond v. Tempo Paint and Varnish Co. (No. 5) (1999), 1999 CanLII 35163 (ON HRT), 33 C.H.R.R. D/184 (Ont. Bd.Inq.): 10, 25
Folch v. Canadian Airlines International (1992), 1992 CanLII 7197 (CHRT), 17 C.H.R.R. D/261 (Can.Trib.): 15, 20
Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 5) (1996), 1996 CanLII 20056 (ON HRT), 28 C.H.R.R. D/267 (Ont. Bd.Inq.): 15, 25, 27
Impact Interiors Inc. v. Ontario (Human Rights Comm.) (July 13, 1998), CHRR Doc. 99-191e (Ont. C.A.): 43
Imperial Oil Ltd. (No. 7) v. Entrop (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd.Inq.): 25
Lord v. Haldimand-Norfolk Police Services Board (1995), 1995 CanLII 18169 (ON HRT), 23 C.H.R.R. D/500 (Ont. Bd.Inq.): 25
Rodovanovic v. Via Rail Canada Inc. (1994), 1994 CanLII 521 (CHRT), 26 C.H.R.R. D/149 (Can.Trib.): 44
Rand v. Sealy Eastern Ltd. (1982), 1982 CanLII 4878 (ON HRT), 3 C.H.R.R. D/938 (Ont. Bd.Inq.): 37
Rivers v. Squamish Indian Band Council (1994), C.H.R.R. NP/96-5 (Can.Trib.): 14
Suchit v. Sisters of St. Joseph's (1983), 1983 CanLII 4723 (ON HRT), 4 C.H.R.R. D/1329 (Ont. Bd.Inq.): 14
Waroway v. Joan and Brian's Upholstering & Interior Decorating Ltd. (1992), 1992 CanLII 14290 (ON HRT), 16 C.H.R.R. D/311 (Ont. Bd.Inq.): 15
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.): 43
York Condominium Corp. No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 (Ont. Div.Ct.): 4
LEGISLATION CITED
Ontario
Courts of Justice Act, R.S.O. 1990, c. C.43: 43
Education Quality Improvement Act, 1997, S.O. 1997, c. 31
Human Rights Code, R.S.O. 1990, c. H.19
s. 41(1): 3
s. 41(1)(a): 60
s. 41(1)(b): 27, 30
INTRODUCTION
1On March 27, 1998, the Board of Inquiry released my decision on the merits of the complaints of Alfred Abouchar against the Metropolitan Toronto School Board ("Metro Board") and Le Conseil des écoles françaises de la communauté urbaine de Toronto ("CÉFCUT"). I found that the Metro Board had infringed Mr. Abouchar's rights under the Human Rights Code [R.S.O. 1990, c. H.19] ("Code") by allowing a previous human rights complaint to be a contributing factor in its decision, in June 1988, not to offer Mr. Abouchar a seconded position as an Assistant Superintendant. In addition, I found that CÉFCUT had not treated Mr. Abouchar equally as a candidate in its December 1988 competition for the same position. I held that Mr. Abouchar's place of origin, specifically the fact that he was not a person of Franco-Ontarian heritage, was one factor in the unequal treatment afforded to him as a candidate in the December 1988 job competition, but that his place of origin was not a factor in the decision to offer the position to another candidate.
2This hearing was bifurcated. The issues of remedy and costs were the subject of evidence and submissions in September and December 1998, and January 1999. This is my decision with respect to remedy. It will be followed by a decision on the application of CÉFCUT for an order of costs as against the Human Rights Commission.
REMEDIAL AUTHORITY OF THE BOARD OF INQUIRY
3The authority of the Board of Inquiry to make remedial orders is established in s. 41(1) of the Code as follows:
Orders of boards of inquiry
41(1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the board may, by order,
(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 wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
4Human rights jurisprudence has articulated several categories, or types, of remedies that may be requested under s. 41(1). Under para. (a), adjudicators have made orders granting public interest remedies sought by the Commission, including, for example, a requirement to post a summary of Code obligations in the respondent's place of business or a requirement to conduct workplace seminars on human rights. Under para. (b), compensation has been ordered for specific losses, such as lost earnings, as well as for loss of the right to freedom from discrimination. These two categories of restitutional damages are referred to in the jurisprudence as "special damages" and "general damages" respectively. In addition, where the infringement of the complainant's rights has been wilful or reckless, damages have been ordered under para. (b) as monetary compensation for any mental anguish suffered by the complainant. The Divisional Court, in York Condominium Corp. No. 216 v. Dudnik(1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 (at D/413), directed that damages for emotional stress or suffering must be ordered as a mental anguish award, and not as general damages for loss of the right to freedom from discrimination, thus requiring a prior finding that the infringement has been wilful or reckless.
ORDERS SOUGHT BY THE COMPLAINANT AND THE COMMISSION
In Respect of the Metro Board Complaint
5Mr. Abouchar requested special damages for his loss of earnings for the period from June 1988, when the first disputed job competition took place, to June 1993, when he lost his employment in a comparable position for the Ottawa-Carleton French-language school board. The total wage loss claim amounts to $122,776.08, plus interest. As well, he sought compensation for various expenses associated with his relocation to Ottawa.
In Respect of the Metro Board Complaint and the CÉFCUT Complaint
6Mr. Abouchar requested, in respect of each complaint, general damages in the amount of $20,000, for loss of the right to freedom from discrimination, and an award as compensation for mental anguish, in the amount of $10,000. He asked that this combined amount of $30,000 be ordered as against each of the respondent school boards, for a total of $60,000, plus interest.
7In addition, the Commission sought the following non-monetary remedies as against each of the school boards:
Ӣ publication of a letter of apology
Ӣ posting of my decision in schools and/or administrative offices
Ӣ review of hiring policies
Ӣ training of staff in bias-free recruitment
Ӣ preparation of a report to the Commission on the hiring and promotion of minorities into senior positions over the next three years
Ӣ notice to the complainant of any non-bargaining unit vacancy for which he is qualified for a three-year period, and a requirement that he be interviewed and his application given serious consideration.
8The Commission requested that all of the remedies be ordered against the Toronto District School Board and/or Le Conseil scolaire public du district centre-sud-ouest, as the successor boards to the Metro Board and CÉFCUT, respectively. Pursuant to the Education Quality Improvement Act, 1997, S.O. 1997, c. 31, O. Reg. 460/97 and O. Reg. 185/97, the liabilities of the former school boards named in these complaints are transferred to the new district school boards. Accordingly, my order will be directed to the new boards.
9The submissions of counsel and my decision on each of the orders sought are set out below.
SPECIAL DAMAGES
Wage Loss
10I have recently reviewed the human rights jurisprudence with respect to wage loss awards in the following passage from my decision in Drummond v. Tempo Paint and Varnish Co. (No. 5)(1999), 1999 CanLII 35163 (ON HRT), 33 C.H.R.R. D/184 [at D/186, paras. 5–8].
In assessing the quantum of special damages for wage loss, the jurisprudence has rejected the employment law principle of "reasonable notice", following the direction from the Ontario Court of Appeal in its decision in Airport Taxi Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347. In that decision, the Court stated that the purpose of compensation under human rights legislation is to "restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred" (at p. D/6348).
A number of decisions, before and since the Court of Appeal decision in Piazza, have considered the reasonable foreseeability of the loss as an appropriate test in assessing quantum. In awarding damages for wage loss, several decisions, under both the Ontario and federal legislation, have held that an award should cover, but not exceed, a reasonably foreseeable period for the complainant to seek and obtain alternative employment: Torres v. Royalty Kitchenware Ltd. (1982), 3.C.H.R.R. D/858 at 872; Cameron v. Nel-Gor Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at 2197; Mears et al. v. Ontario Hydro et al. (1983), 1983 CanLII 4713 (ON HRT), 5 C.H.R.R. D/1927 at 1941–2; DeJager v. Dept. of Nat. Defence (1987), 1987 CanLII 94 (CHRT), 8 C.H.R.R. D/3963 at 3965–6; Engell v. Mount Sinai Hospital (1989), 1989 CanLII 9070 (ON HRT), 11 C.H.R.R. D/68 at 74; Canada (A.G.) v. McAlpine (1989), 1989 CanLII 9428 (FCA), 12 C.H.R.R. D/253 at 258–9 (Fed.C.A.).
Other decisions, relying on the principle that the complainant is to be placed in the position that he or she would have been in but for the discrimination, have held that reasonable foreseeability should not limit a wage loss award particularly, but not only, when the complainant is reinstated in employment by the Board of Inquiry: Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 at 62–4; Cashin v. C.B.C. (1990), 1990 CanLII 12446 (CHRT), 12 C.H.R.R. D/222 at 232–4; Rinn v. Keewatin Air Ltd. (1984), 1988 CanLII 119 (CHRT), 9 C.H.R.R, D/5106 at 5130–1.
The Federal Court of Appeal, in reviewing the competing principles regarding recovery for wage loss, has enunciated a "common sense" test in Canada (A.G.) v. Morgan et al. (1991), 1991 CanLII 13184 (FCA), 85 D.L.R. (4th) 473 at 482 (per Marceau, J.A.):
I think one should not be too concerned by the use of various concepts in order to give effect to the simple idea that common sense required that some limits be placed on liability for the consequences flowing from an act, absent maybe bad faith. Reference is made at times to reasonable consequences, a test more appropriate, it seems to me, in contract law. At other times, standards such as direct consequences or reasonably closely connected consequences are mentioned. The idea is always the same: exclude consequences which appear down the chain of causality but are too remote in view of all the intervening facts. Whatever the source of liability, common sense still applies.
11In the Drummond decision, I note that human rights tribunals, in applying these competing and overlapping principles, have awarded wage loss damages for periods ranging from a few weeks or months to several years. The jurisprudence has been consistent in requiring a complainant to take steps to mitigate a wage loss by seeking other employment, but has not necessarily required a complainant to accept a job at a lower wage rate or in another community.
12In the present case, there are several possible dates that might be considered appropriate cut-off points for a wage loss award. Counsel for the Metro Board argued that the period of foreseeable loss ended in December 1988, when it was expected that the new French-language school board would re-run the competition. CÉFCUT did, as we know, run a second competition at the end of 1988, and the complainant was not chosen as the successful candidate.
13In my view, if the wage loss award was limited to the period prior to January 1989, the complainant could not be said to have been placed in the position that he would have been in but for the discrimination. Mr. Abouchar was the candidate chosen by all but one of the members of the selection committee in the first competition. He would have been successful in the job competition but for the wrongful consideration of his prior human rights complaint. Arguably, he is entitled to be compensated for the full period of the secondment, which was initially expected to run to December 1989, but in fact ended with a competition for a permanent position in May 1989. In an alternative argument, counsel for the Metro Board submitted that Mr. Abouchar's wage loss entitlement should terminate at the end of May 1989, after he refused CÉFCUT's offer of an interview for the permanent position.
14Another issue concerned the impact of Mr. Abouchar's decision, at the beginning of June 1989, to accept a position as a Superintendent for the Ottawa-Carleton French-language school board. This position was comparable to the position which Mr. Abouchar was improperly denied in the Metro Board competition; in fact, it was superior in rank to the seconded position of Assistant Superintendent, but its pay level was lower throughout the relevant period by an annual amount in excess of $20,000. Counsel for the Commission and complainant submitted that Mr. Abouchar should be compensated for the shortfall in his wages from June 1989 until July 1993, when his employment with the Ottawa-Carleton school board ended. In taking this position, counsel relied upon human rights jurisprudence in which a complainant has been compensated for a wage loss experienced in temporary or part-time employment obtained as part of a mitigation effort: Suchit v. Sisters of St. Joseph's for the Diocese of Toronto (1983), 1983 CanLII 4723 (ON HRT), 4 C.H.R.R. D/1329 (Ont. Bd.Inq.); Rivers v. Squamish Indian Band (1994), C.H.R.T. T.D. 3/94 [C.H.R.R. NP/96-5 (Can.Trib.)].
15Counsel for the Metro Board, on the other hand, relied on case law, holding that a respondent is no longer responsible for a wage differential once a complainant accepts a comparable job. See Naraine v. Ford Motor Co. of Canada (No. 5)(1996), 1996 CanLII 20056 (ON HRT), 28 C.H.R.R. D/267 (Ont. Bd.Inq.); Waroway v. Joan and Brian's Upholstering & Interior Decorating Ltd.(1992), 1992 CanLII 14290 (ON HRT), 16 C.H.R.R. D/311 (Ont. Bd.Inq.); Folch v. Canadian Airlines International(1992), 1992 CanLII 7197 (CHRT), 17 C.H.R.R. D/261 (Can.Trib.). The decisions in Rivers v. Squamish Indian Band and Suchit v. Sisters of St. Joseph's for the Diocese of Toronto, which were relied upon by the Commission, also recognize the legitimacy of terminating damages at the point at which comparable employment is obtained.
16Adopting the "common sense" approach urged by the Federal Court of Appeal in the Morgan v. Canada decision, supra, I find that July 6, 1989 is a reasonable cut-off date for a wage loss award in this case. On this date, Mr. Abouchar commenced employment in a permanent position at a superior rank with the Ottawa-Carleton board. Although I find that Mr. Abouchar should be compensated for his expenses in making the move to Ottawa, as discussed below, I do not think that it is reasonable for the Metro Board to bear responsibility for the fact that salary levels at the Ottawa school board were considerably lower than at CÉFCUT. The lower wages which Mr. Abouchar received as a Superintendent with the new Ottawa-Carleton school board were not a reasonably direct consequence of the infringement of Mr. Abouchar's rights in the Metro Board competition. Even if it was foreseeable that Mr. Abouchar would seek comparable employment in Ottawa, there was no evidence establishing that the earnings differential was foreseeable.
17I am reinforced in my decision to disallow the wage loss claim after this date by the fact that the secondment arising out of the second competition had in fact been terminated in the previous month with the CÉFCUT competition for a permanent position. There was evidence in the hearing on the merits to indicate that early termination of the secondment was foreseeable at least as a possibility.
18Let me emphasize that I am not relying at all on the fact that Mr. Abouchar declined to participate in the May 1989 competition for the permanent CÉFCUT position. There was considerable dispute about the factual circumstances surrounding that competition, but I do not find it necessary to sort out those circumstances, nor do I have an evidentiary basis for doing so. Given my findings about the treatment afforded Mr. Abouchar in the initial CÉFCUT competition, and his understandable perception that discrimination was a factor in the decision not to offer him the job in December 1988, Mr. Abouchar should not be penalized for his failure to enter into the May 1989 competition.
19Although I find that Mr. Abouchar should be compensated for the initial cost of his re-location to Ottawa, I do not accept his claim for all of the expenses associated with the fact that his family decided not to re-locate to Ottawa. There were no doubt many factors which contributed to that decision, including his wife's position with CÉFCUT in Toronto. In my view, it is not appropriate to require the Metro Board to bear the cost of the decision of the Abouchar family to maintain two households. Accordingly, I am dismissing the claims for rent, regular hydro and telephone service, the purchase of a car and other miscellaneous expenses in Ottawa. As well, I am dismissing the claim for the cost of various trips between Ottawa and Toronto after September 30, 1989, on the basis that, by that date, the process of re-locating to Ottawa was complete.
20My decision to disallow these expenses is consistent with the decision of the Federal Human Rights Tribunal in Folch v. Canadian Airlines International, supra.
GENERAL DAMAGES
21Mr. Abouchar is entitled to a general damages award against each of the respondent school boards to compensate him for his loss of the right to full enjoyment of his rights under the Code. This award should compensate him for any loss of dignity or humiliation which he experienced as a result of the infringement of his rights. His entitlement to an award for mental anguish is considered in the next section.
22The Commission sought an award of general damages in the amount of $20,000 as against each respondent school board. In opposing an award of this magnitude, counsel for the respondents asked me to consider two special circumstances. In the case of the Metro Board competition, I was asked to consider the fact that the process was tainted by the conduct of two persons who were not employees of the Board and did not have a long-term association with it. Ms Gillipsie, the selection committee member who raised the prior human rights complaint in the selection deliberations, was a volunteer member of the Task Force established by the Ministry of Education to oversee the implementation of Bill 75. Mr. Lalonde was, at the time of the first competition, an employee of the Ministry of Education, seconded to the Metro Board to assist in its undertaking to facilitate the start-up of the new school board. He subsequently became Director of Education for CÉFCUT.
23Secondly, in the case of CÉFCUT, I was asked to take into account the fact that Mr. Abouchar was found to have taken improper steps to influence the outcome of the selection process. I determined that, in the second competition, Mr. Abouchar met with a member of the selection committee on the evening before his interview, and discussed the other candidates and his prospects. Counsel argued that Mr. Abouchar's improper conduct should affect his recovery.
24I have decided that, in the circumstances, neither of these factors should influence the quantum of my award of general damages. The Metro Board is vicariously liable for the conduct of Mr. Lalonde, notwithstanding his short-term employment relationship with the Board. The fact that the liability of the Metro Board arises through the conduct of a short-term seconded employee should not reduce the complainant's recovery. Further, although in some cases the conduct of a complainant will appropriately result in a reduction in their recovery, I decline to so order in this case. In my earlier decision, I found that Mr. Abouchar was correct in his perception that members of the selection committee were predisposed against him, in part because he was not a Franco-Ontarian. His attempt to garner support from a member of the committee who was an immigrant francophone like himself was entirely inappropriate, but not entirely incomprehensible in the highly-charged atmosphere surrounding Mr. Abouchar's candidacy.
25I find that an award of $6,000 as against each respondent is appropriate as general damages in this case. I have not made a higher award because the experience of discrimination in each case occurred in the course of a single occurrence, specifically the job competitions. This is not a situation in which the complainant was subjected to repeated discrimination or an on-going pattern of harassment. The highest awards of general damages have occurred in such cases: Naraine v. Ford Motor Co. of Canada (No. 5), supra; Drummond v. Tempo Paint and Varnish Co. (No. 5), supra; Entrop v. Imperial Oil Ltd. (No. 7)(1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd.Inq.); Lord v. Haldimand-Norfolk Police Services Board(1995), 1995 CanLII 18169 (ON HRT), 23 C.H.R.R. D/500 (Ont. Bd.Inq.).
26Nonetheless, in making an award of this quantum, I am taking into account the fact that the circumstances surrounding the discrimination, and the treatment of Mr. Abouchar's application in both competitions, were public and even notorious events within the French language community of Toronto at the time. In this regard, counsel for the Commission brought to my attention the fact that the events at issue were still newsworthy in 1998, when the Board of Inquiry decision received front-page coverage in the Toronto French language press, with one article referring to "La fameuse ”˜affaire Abouchar'". There is support in the case law for awarding a higher amount of general damages when a complainant is publicly humiliated by the experience of discrimination: Morgan v. Canadian Armed Services (1989), 1989 CanLII 138 (CHRT), 10 C.H.R.R. D/6386 [at D/6403] (para. 45273) (Can.Trib.).
MENTAL ANGUISH AWARD
27Pursuant to s. 41(1)(b), an award for mental anguish can only be made if the infringement of the complainant's rights is found to have been a wilful or reckless act on the part of the respondents. My findings on the merits of this case support a determination that the infringement of Mr. Abouchar's rights in each of the competitions was "engaged in recklessly" within the meaning of the section. Human rights jurisprudence has interpreted the word "recklessly" as requiring that the offending conduct demonstrate "disregard or indifference to its consequences", including the possible injurious impact on the complainant: Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.); Naraine, supra.
28In the Metro Board competition, the conduct of Mr. Lalonde, as the staff person responsible for the selection process, evinced a disregard for the possible infringement of Mr. Abouchar's rights. Mr. Lalonde testified that he appreciated that consideration of a previous human rights complaint was a violation of the Code. I have found that he nonetheless failed to take effective steps to ensure that Mr. Abouchar's previous human rights complaint was not a continuing factor in the selection process. I have found that he did not give the selection committee instructions in this regard; that he did not alert senior staff to the fact that consideration of the complaint was probably an ongoing factor in the competition; and that his minutes of the selection committee meetings were misleading and would not have alerted the Director of Education to the fact that Mr. Abouchar's candidacy was supported by every member except the person who had raised his previous complaint as a disqualifying factor.
29In the CÉFCUT competition, I have found in my earlier decision that several members of the selection committee were predisposed against Mr. Abouchar's candidacy. I concluded that it was more likely than not that his non-Franco-Ontarian heritage was one reason for their opposition. Regrettably, although the committee discussed the need to ensure fairness, it followed a very flawed selection process, and did not remove those members who were known to have had conflicts with Mr. Abouchar. Two of the four members of the selection committee described the selection process as part of a larger power struggle between Franco-Ontarians and multicultural francophones for control of various community resources, including the French-language education system. Mr. Abouchar was a highly visible representative of the multicultural francophone community, and his conflicts with at least two members of the selection committee had been, in part, in relation to these ongoing conflicts. All of the members of the committee were very aware of these issues. Nonetheless, there was no attempt to address the conflicts by, for example, bringing in an outside person to sit on the committee, perhaps from the Ottawa-Carleton French-language board. Accordingly, I conclude that the treatment of Mr. Abouchar in the competition demonstrated a reckless disregard for its consequences and for the harmful impact on him.
30Having found that the infringement of Mr. Abouchar's rights was reckless within the meaning of s. 41(1)(b), I must consider whether or not Mr. Abouchar suffered from mental anguish as a result of his treatment by the respondent school boards. Mr. Abouchar gave considerable evidence about the emotional impact of his experience in the two job competitions. He testified that, after the first competition, he felt frustrated and depressed. He began to smoke more and was sick from pneumonia and bronchitis during this period. He felt hurt and lonely, and believed that people were beginning to avoid him in the community. However, he testified that he still had hopes, going into the second competition, that the "good part [of the community] would transcend" and that he would have success.
31Mr. Abouchar testified that, after the second competition, he had a sense of panic and hopelessness. He felt desperate, angry, and "unwanted". He suffered from inability to sleep. He was "very afraid" about his employment prospects under the new board and believed that he had no future in the Toronto French-language education system. He felt that he had become an "outcast", and that his contribution to the francophone community over the years did not matter. He stated that he "lost his sense of happiness".
32I am satisfied, primarily on the basis of Mr. Abouchar's evidence, that he suffered significant emotional distress as a result of his experience in both competitions. Although there appear to have been other factors which contributed to the stress experienced by Mr. Abouchar during the years since 1988/89, I find that a substantial part of his anxiety was caused by his treatment, and his perception of his treatment, during the competitions.
33Both respondent counsel raised an issue with respect to their clients' liability for what they considered to be a heightened response to the infringement on the part of Mr. Abouchar. They argued that the school boards should not be responsible for the fact that, after the first competition, Mr. Abouchar began to feel ostracized throughout the community. Mr. Abouchar testified that he felt that the francophone community in Toronto had closed ranks against him; that even friends avoided him in public. After the second competition, he became convinced that he was "really blacklisted", an "outcast". He felt that the Franco-Ontarian "network" had decided that he was "undesirable" and "would go to any lengths to discard" him. He testified that at this point he began to question his choice of Canada as his country of resettlement. He felt profoundly rejected.
34Having considered Mr. Abouchar's evidence with respect to his experience of discrimination, I conclude that he did have a heightened response to the infringement of his rights. For example, he testified that, after the first competition, in June 1988, while he was on secondment to the Council for Franco-Ontarian Education, he became worried because he had not been contacted about the status of his "home" position with the not-yet-operational new board. He testified that, because of his association with the multicultural community, going back to his old teaching position under the new board would be "suicidal". Mr. Abouchar interpreted the fact that "no one had talked to him at all" about his position as another strong indication that he was being "pushed aside". In fact, given the evidence in the hearing about the enormous dislocation associated with the start-up of CÉFCUT, I find that it was not at all surprising that individual teachers, like Mr. Abouchar, who were on leave or secondments, were not contacted about the status of their "home" positions in the months before the new board took office.
35Based on all the evidence, I have concluded that there were times when Mr. Abouchar perceived a personal animosity towards himself, because of his heritage, when there was none. In his evidence, Mr. Abouchar tied his growing perception of exclusion and victimization to the experience of discrimination. He testified that the feeling of being "not wanted" "creeps up on you", that "at first you do not realize that discrimination is a factor", and that "gradually you figure it out".
36The reasonableness of Mr. Abouchar's perceptions must be considered in the context of all the evidence. In the March 1998 decision [reported 1998 CanLII 29892 (ON HRT), 31 C.H.R.R. D/411], I concluded that the evidence indicated that, in both competitions, there was opposition to Mr. Abouchar that was difficult to explain on bona fide grounds, given his qualifications and eligibility for the positions. Mr. Abouchar's evidence was that he felt that he was being unfairly rejected. He had no way of knowing if he was attracting opposition for a non-discriminatory reason (for example, because of his views on French-language education, favouring a more bilingual system) or if it was because he was seen as a "newcomer" or an "upstart", who was not part of the historical Franco-Ontarian community, and had no business taking on leadership roles. In the end, I concluded, based on the evidence, that improper consideration of his prior human rights complaint, in the Metro Board competition, and of his place of origin, in the CÉFCUT competition, tainted the treatment which he received.
37Mr. Abouchar's heightened response was no doubt partly a function of the kind of person he is; others may not have felt the same degree of personal pain in similar circumstances. However, Mr. Abouchar's response was to a large extent foreseeable, given the public nature of his experience. The effect of the double rejection was that Mr. Abouchar felt cut off from career advancement in the limited job market open to him in the francophone educational community in Toronto. Given my earlier finding that he met the qualifications for both positions, I conclude that this response was foreseeable and understandable, notwithstanding my finding that he was not the most qualified candidate in the second competition. There is support in the case law for an approach that holds a respondent liable for an aggravated harm that is foreseeable: Rand v. Sealy Eastern Ltd.(1982), 1982 CanLII 4878 (ON HRT), 3 C.H.R.R. D/938 (para. 8506 [p. D/957]) (Ont. Bd.Inq.). I am prepared to follow that approach in making an award for mental anguish in this case. However, no part of my award is as compensation for experiences of rejection by persons in the wider francophone community unassociated with these complaints.
38Relying on my dismissal of the Metro Board complaint on all grounds except reprisal, counsel argued that the award should be limited to compensation for that part of Mr. Abouchar's emotional distress that was attributable to the fact that his previous human rights complaint was wrongly considered. In other words, the award should not include any amount which would compensate Mr. Abouchar for the distress that was attributable to his perception that he was discriminated against on the basis of race, place of origin, ethnic origin or association with the multicultural community.
39I do not accept these submissions. Mr. Abouchar believed that he was discriminated against in the Metro competition because he was not a Franco-Ontarian. In the decision on the merits, I found that there was evidence of conduct on the part of members of the selection committee that could provide support for an inference of discrimination on the ground of place of origin, specifically on the basis that Mr. Abouchar was not part of the historical Franco-Ontarian community. However, I declined to make such a finding of discrimination, concluding instead that the evidence pointed more decisively to a finding of reprisal. I would note that the prior human rights complaint, that was wrongly held against him in the competition, itself alleged discrimination on the basis of place of origin, race and ethnic origin.
40In these circumstances, it would not be appropriate to lower Mr. Abouchar's recovery simply because he in effect guessed the wrong basis for the infringement of his rights. Mr. Abouchar should be compensated for the mental anguish that he suffered as a result of his rights being infringed in the June 1988 competition, regardless of the grounds for the infringement. However, I am satisfied, based on Mr. Abouchar's evidence, that the impact of the first competition on his emotional distress was somewhat less significant than the impact of the second competition, even having considered the cumulative effect. This will be reflected in the awards.
41Finally, I have decided that Mr. Abouchar's recovery should be limited to the period before July 1993, when the impact of the loss of his employment in Ottawa overshadowed the continuing anxiety from the 1988 job competitions. As well, although Mr. Abouchar made it clear that the hearing and the associated media attention were, understandably, the cause of continuing distress to him, the respondents were entitled to litigate this complaint and are not responsible for the associated stresses.
42Having considered all of these factors, I have concluded that the complainant should recover, as compensation for mental anguish, the amount of $8,000 in respect of the Metro Board complaint, and the amount of $10,000 in respect of the CÉFCUT complaint. This amount reflects the fact that Mr. Abouchar suffered significantly from the infringement of his rights, and that this was a foreseeable result of the infringement.
INTEREST
43It is now well established that the Board of Inquiry has jurisdiction to make an award of interest on both special and general damages, including an award for mental anguish: Impact Interiors Inc. v. Ontario Human Rights Commission ([C.A]., unreported decision, July 13, 1998); Canada (Attorney General) v. Rosin(1990), 1990 CanLII 12957 (FCA), 16 C.H.R.R. D/441 (F.C.A.); 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.). All of the counsel agreed that the complainant in this case was entitled to an award of interest, but there were several issues in dispute with respect to the calculation of quantum. There is little consistency in the jurisprudence on questions such as:
Ӣ the date from which interest should run (the date on which the discrimination occurred; the date on which the complaint was filed or came to the notice of the respondents; the date on which the damages crystallized; a mid-point in the accrual period in the case of cumulative entitlements; and so on);
Ӣ whether the applicable interest rate should be the rate in effect at the time from which interest is calculated or vary year to year in accordance with the annual rate in the Courts of Justice Act, R.S.O. 1990, c. C.43.
44With respect to interest on general damages, there is authority for ordering interest from the point at which the discrimination occurs: Morgan v. Canada, supra; Rodovanovic v. Via Rail Canada Inc.(1994), 1994 CanLII 521 (CHRT), 26 C.H.R.R. D/149 (Can.Trib.). Given that both respondents anticipated the complaints in advance of actual notice, I am satisfied that it is appropriate to order interest on the full amount of this part of the award from the date on which the complainant experienced the infringement of his rights. In this case, there was no continuing pattern of violation; the general damages award can be said to have crystallized at the time of the competitions. Interest on the award against each respondent school board should run from the date on which Mr. Abouchar learned that he was unsuccessful in each of the competitions, with interest calculated on the full non-compounded amount on an annual basis at the prevailing average yearly interest rate under the Courts of Justice Act.
45Turning to the question of interest on the mental anguish award, other considerations apply. Considering first of all the Metro Board complaint, given my conclusion that Mr. Abouchar experienced emotional distress linked to the competition, for a five-year period from the date he was notified of the cancellation of the competition (July 12, 1988) to the end of his employment in Ottawa (July 1993), I find that interest should be calculated annually on a notional cumulative amount increasing by one-fifth of the total mental anguish award (not including compounded interest) in each succeeding year. From July 1993, annual interest is to be calculated on the full amount of the mental anguish award, not including cumulative interest. The appropriate interest rate is the average annualized rate, pursuant to the Courts of Justice Act, for the year in respect of which the calculation is done.
46In the case of the award against CÉFCUT, Mr. Abouchar is entitled to interest for the four-and-a-half year period from January 6, 1989, when Mr. Abouchar received notice that he had not been successful in the second competition, to July 1993, calculated on the same basis. Interest from July 1993 is to be calculated annually on the full mental anguish award at the applicable averaged annual interest rate.
47With respect to the wage loss award, I accept the submissions of counsel for the complainant that simple interest should be calculated for each year based on the wage differential for that year. I have found that Mr. Abouchar is entitled to a wage loss award for a one-year period to compensate for the shortfall in his employment earnings from the date on which he would have started the secondment (August 1, 1988) to the date on which he commenced his employment with the Ottawa school board (July 6, 1989). Interest should run from July 6, 1989: this is the date on which the wage loss crystallized and it is also the date on which both complaints were filed with the Commission. I assume that, from this date forward, the Metro Board had informal notice of the complaints through the Commission. The applicable interest rate is the averaged annual rate, calculated in accordance with the Courts of Justice Act, for each succeeding year.
PUBLIC INTEREST REMEDIES
Apology
48Both respondent schools boards opposed an order requiring an apology. Although apologies are commonly part of mediated settlements before the Board of Inquiry, I question the effectiveness of an ordered apology, particularly in this case when both respondent school boards have since become part of two larger governance bodies established under new provincial legislation.
49In the case of the Metro Board, and its successor school board, I decline to order an apology. I rely in part on the fact that neither of the two individuals directly involved in the infringement have had an employment relationship or association with the Metro Board since 1988/89.
50With respect to the complaint against CÉFCUT, I have decided that it would be appropriate for its successor school board, Le Conseil scolaire public du district centre-sud-ouest ("Conseil") to provide Mr. Abouchar with a written statement of acknowledgement. The letter is to express its acknowledgement that the 1988 job competition run by CÉFCUT, one of its predecessor school boards, has been found to have treated Mr. Abouchar in a manner which infringed his human rights. The letter should assure Mr. Abouchar of the Conseil's intention to respect and comply with the order of the Board of Inquiry.
51Although I decline to order that the Conseil pay for publication of the letter of acknowledgement, I note that the letter will be referred in this order, and as such will become public pursuant to the posting and publication requirements set out below.
Posting of Decision
52Counsel for the Commission initially sought an order requiring that all or part of the March 27, 1998, decision be posted in every workplace of each of the successor school boards. This would require posting in every school and administrative office for what is now apparently the largest school board in North America, the Toronto District School Board ("Toronto Board"), as well as in all of the schools and offices in the expanded geographical area now covered by the Conseil. Other suggestions from various counsel included that the posting be required in a more limited number of locations, and that a summary be prepared for inclusion in an internal school board publication, together with the final order.
53In my view, it is reasonable to require the respondents to post this current decision in each of the Toronto area administrative offices of the Toronto Board and the Conseil. In addition, I will order that [the] Toronto Board include the summary of this decision, set out below my signature, in its internal publication referred to as "The Director's Newletter". The Conseil will also be ordered to include a translation of the summary in whatever equivalent newsletter that it has for senior personnel. In the case of the Conseil, I will also require that the publication include notice of the fact that the school board has given Mr. Abouchar a letter acknowledging that his human rights were violated in the 1988 competition. I am assuming that both publications are sent to the principals of every school in the jurisdiction of each of the boards. I will direct that each school board ensure that the publication is made available in the staff rooms of the schools within their jurisdiction in the Toronto area.
Review of Recruitment Policies
54Commission counsel expressed general satisfaction with the revised policies of CÉFCUT, which have apparently been adopted by the Conseil. The only outstanding concern was with respect to the absence of a section on reprisal protection under the Code. The Commission asked that the Conseil be required to develop a policy based on one developed by the former Metro Board, and I accept this as appropriate.
55In the case of the new Toronto Board, Commission counsel noted that all of the policies of the newly amalgamated boards are currently under review, and asked that the revised recruitment policies be provided to the Commission upon completion. Although the Commission may be able to provide the new school board with useful commentary, the order sought is overly broad, given that the recruitment policies of the Metro Board were not an issue in the hearing. I will order that the Toronto Board include the reprisal policy of the Metro Board in its new policies.
Training of Staff in Bias-free Recruitment
56The Commission requested that both school boards be required to develop a staff-training program in bias-free recruitment. Counsel asked that the boards be ordered to provide their "training guidelines" to the Commission for its review.
57Counsel for both school boards opposed an order allowing the Commission to review the way in which their staff is trained in bias-free recruitment. In the case of the Conseil, given that the Commission expressed satisfaction with CÉFCUT's recruitment policies, now adopted by the Conseil, I conclude that it is unnecessary to order a Commission review of the related staff-training program or guidelines. With respect to the complaint against the Metro Board, I have already noted that recruitment policies as such were not an issue in my findings. I will order the Toronto Board to include a reprisal provision in its new recruitment policies, but I decline to order a Commission review of the new school board's staff-training on the policies.
Preparation of a Report to the Commission on the Hiring/Promotion of Visible Minorities into Senior Positions.
58Finally, the Commission asked that the school boards be ordered to prepare an annual report, for a three-year period, on the hiring and promotion of visible minorities into positions at or above the level of principal. The Commission requested an order requiring that it receive a copy of the annual report.
59Counsel for the Metro Board argued the order requested would exceed my jurisdiction, given that there were no findings of discrimination on the basis of race or ethnic origin. Counsel for CÉFCUT submitted that the order sought by the Commission would inappropriately tread on the jurisdiction of an elected body.
60The Board of Inquiry has a very wide decision-making authority under s. 41(1)(a) of the Code. The Board may make orders that direct a 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". In my view, this section gives the Board the authority to make orders that are aimed at a wider compliance with the legislation than might be necessary to narrowly address the complaint-related findings of past discrimination.
61However, there must be an evidentiary basis for any order requiring a party to take steps to ensure future compliance. In the case against the Metro Board, neither the Commission nor the complainant led any evidence with respect to the ethnic or racial diversity of the school board's senior staff or student body. There was no evidence before me that would allow me to conclude that the order sought by the Commission is necessary or appropriate to ensure the future compliance with the legislation.
62Interestingly enough, on the very day on which I heard submissions on this issue, the Toronto media reported that the Toronto Board had passed a motion "to draft an affirmative action policy promoting members of minority groups into positions as principals, superintendents and top managers (Globe and Mail, Wednesday, September 25, 1998). It appears that the Toronto Board is already taking steps in the direction of the orders sought by the Commission. I recommend, but do not order, that the completed draft "affirmative action policy" be provided to the Commission for its comments
63In the case of CÉFCUT, although I had no statistical evidence, there was testimony from several witnesses indicating that its senior staff in 1989 did not reflect the diversity of the student body served. The evidence indicated that there was a high percentage of immigrant children in the CÉFCUT schools, at least in the early years, including a large influx of children from Africa and middle-eastern countries. Clay Derstine, for example, testified that 60–70 percent of the student population in the CÉFCUT schools was non-Franco-Ontarian, but that the "directorship was always Franco-Ontarian". Mr. Derstine, like Mr. Derose, supported Mr. Abouchar as a candidate because he would, in Derstine's words, "be able to reflect the needs and aspirations of the majority in our schools". It was his evidence, which I relied upon in making my findings, that Mr. Abouchar's candidacy was at a disadvantage with other members of the selection committee for the very reason that he was not a Franco-Ontarian.
64Having considered the evidence in respect of the CÉFCUT complaint as a whole, I find that it does support a conclusion that pro-active recruitment measures may be useful to ensure future compliance with the legislation. However, I heard no evidence as to whether or not there have been significant changes in the composition of the senior staff and/or the student body since the events which gave rise to Mr. Abouchar's human rights complaint. As well, there was no evidence as to whether or not recruitment mesures have already been implemented to address any continuing imbalance in the diversity of its senior staff. CÉFCUT introduced as evidence a copy of its policies on "Équité emploi" and "Antiracisme et équité ethnoculturelle". The policies required that an employment equity committee be formed to develop a "plan d'action", but there was no further evidence as to whether specific measures were implemented by CÉFCUT, and to what effect. There was also no evidence about whether the Conseil has adopted these specific policies and any plan of action developed by CÉFCUT.
65In the circumstances, I am prepared to require the Conseil to develop and implement recruitment policies and measures which aim at ensuring that the profile of its senior staff is representative of the diversity of the student communities served, including consideration of place of origin, ethnic origin and race. I acknowledge that such policies and measures may already be in place. The Conseil is to file a copy of its related policies with the Commission.
Notice of Vacancy
66The Commission requested an order that Mr. Abouchar be given notice of any non-bargaining unit vacancy (at the level of principal or higher) for which he is qualified at either school board, and that he be interviewed at his option and his application given serious consideration.
67Counsel for both boards opposed this request. They pointed out that they had no knowledge of Mr. Abouchar's employment history since 1993, and that he was in any event free to apply for any advertised position for which he was qualified.
68I am prepared to order that both boards be required to give Mr. Abouchar notice of any vacancies at the level of principal or higher for a period of one year from this decision. I would expect Mr. Abouchar to be given serious consideration as a candidate for any position for which he is qualified, but I do not think this is something which can effectively be dealt with as an order of this Board.
ORDER
69The Toronto District School Board, as the successor to the Metropolitan Toronto School Board, is ordered to pay to Alfred Abouchar an amount equal to:
(a) the income which he would have received had he been successful in the May 1988 job competition for the position of Assistant Superintendent, being the wages for that position from August 1, 1988, to July 6, 1989, minus his other earnings during this period;
(b) simple interest on the amount under para. (a), from July 6, 1989, to the date of this order, calculated yearly based on the applicable annualized interest rate under the Courts of Justice Act;
(c) expenses incurred in relocating to Ottawa, including packing and moving services; reasonable hotel and meal costs while searching for long-term accommodation in Ottawa (from July 6, 1989, to September 30, 1989); initial connection fees for hydro and telephone service; transportation costs for travel between Toronto and Ottawa (from July 6, 1989, to September 30, 1989);
(d) simple interest on the total under para. (c), calculated yearly from September 30, 1989, at the applicable annualized interest rate under the Courts of Justice Act;
(e) general damages in the amount of $6,000 for loss of the right to freedom from discrimination;
(f) simple interest on the amount of $6,000 from July 12, 1988, to the date of this order, calculated yearly on the full $6,000 at the applicable annualized interest rate under the Courts of Justice Act;
(g) damages for mental anguish in the amount of $8,000;
(h) simple interest on the mental anguish award:
Ӣ for the 5-year period from July 1988 to July 1993, calculated yearly on a notionalized figure representing one-fifth of the cumulative entitlement (exclusive of interest), at the applicable annualized interest rate under the Courts of Justice Act;
Ӣ for the period from July 1993 to the date of this order, on the full award of $8,000, calculated yearly at the applicable annualized interest rate under the Courts of Justice Act.
70The Conseil scolaire public du district centre-sud-ouest, as the successor school board to CÉFCUT, is ordered to pay to Alfred Abouchar an amount equal to:
(a) general damages in the amount of $6,000 for loss of the right to freedom from discrimination;
(b) simple interest on the amount of $6,000 from January 6, 1989, to the date of this order, calculated yearly on the full $6,000 at the applicable annualized interest rate under the Courts of Justice Act;
(c) damages for mental anguish in the amount of $10,000;
(d) simple interest on the award for mental anguish:
Ӣ for the four-and-a-half year period from January 1989 to July 1993, calculated yearly on a notionalized figure representing an equal portion of the cumulative entitlement (exclusive of interest), at the applicable annualized interest rate under the Courts of Justice Act;
Ӣ for the period from July 1993 to the date of this order, on the full award of $10,000, calculated yearly at the applicable annualized interest rate under the Courts of Justice Act.
71The Toronto District School Board and the Conseil scolaire public du district centre-sud-ouest are ordered to pay post-judgment interest on all sums owing under this order, from thirty days after the date of the order.
72In addition, the Conseil scolaire public du district centre-sud-ouest is ordered to provide Alfred Abouchar with a letter acknowledging that CÉFCUT has been found to have infringed his right to equal treatment without discrimination in respect of the May 1988 job competition for the position of Assistant Superintendent. The letter shall include an assurance that the Conseil will comply with the order of the Board of Inquiry and that Mr. Abouchar will receive notice of all vacancies at or above the level of principal for which he is qualified for a period of one year.
73The Toronto District School Board and the Conseil scolaire public du district centre-sud-ouest are ordered to post this decision in each of their administrative offices in the Toronto area.
74In addition, the Toronto District School Board is ordered to include the summary of this decision in an edition of its internal publication entitled "The Director's Newsletter". The Conseil scolaire public du district centre-sud-ouest is ordered to include a translation of the summary in its equivalent publication for senior staff, together with notice of the fact that it has provided Mr. Abouchar with a letter acknowledging the infringement of his human rights in the job competition held by CÉFCUT in May 1988.
75Both the Toronto District School Board and the Conseil scolaire public du district centre-sud-ouest are ordered to ensure that the publication with the summary of this decision is available in the staff room of all schools under their jurisdiction in the Toronto area.
76The Conseil scolaire public du district centre-sud-ouest is directed to develop recruitment policies and measures, or to affirm existing policies and measures, which aim at ensuring that the profile of its senior staff is representative of the diversity of its school communities, including place of origin, ethnic origin and race. A copy of the related recruitment policies is to be filed with the Commission.
77The Conseil scolaire public du district centre-sud-ouest and the Toronto District School Board are ordered to develop and implement a recruitment policy, or incorporate into existing recruitment policies, a provision acknowledging the reprisal protection in the Human Rights Code, and advising that consideration of a candidate's previous human rights complaint is an infringement of the Code.
78Finally, the Toronto District School Board and the Conseil scolaire public du district centre-sud-ouest are ordered to provide Mr. Abouchar with notice of any vacancies for which he is qualified at or above the level of principal for a period of one year from the date of this order.
79I remain seized of this matter to render the decision on costs and to deal with any difficulties associated with implementation of this order. If the parties cannot agree on the calculation of any part of the damage award, including interest, they are directed to so advise the Deputy Registrar within thirty days of the date of this order. The parties will be expected to attend a hearing day scheduled within a further thirty days, and post-judgment interest will be suspended on the disputed items until the scheduled day.