Moffatt v. Kinark Child and Family Services (No. 5)

1999-11-02

Ontario Board of Inquiry

James Lawrence Moffatt Complainant

and

Ontario Human Rights Commission Commission

v.

Kinark Child and Family Services and Harry Oswin Respondents

Date of Complaint: November 26, 1991

Date of Decision: November 2, 1999

Before: Ontario Board of Inquiry, Katherine Laird

Decision No.: 99-0015-R

Appearances by:

Ena Chadha and Bill Holder, Counsel for the Commission

Brian A. Kelsey, Counsel for the Complainant

Brian D. Mulroney, Counsel for the Respondents

DAMAGES — damages assessed for wilful or reckless discrimination — damages awarded against each respondent — general damages — special damages — statutory limit on awards — injury to dignity and self-respect — lost employment opportunity — lost wages — medical expenses — wilful exploitation — survey of the law — LIABILITY — employer liability for supervisor — joint liability — mitigation of effects of discrimination

REMEDIES — apology — employment counselling — reinstatement — interview for position openings — letter of reference — human rights complaints procedure to be filed with commission — distribution of decision — survey of the law — EMPLOYMENT — obligation to provide workplace free from discrimination — RETALIATION — employment terminated after filing of human rights complaint

Summary: An Ontario Board of Inquiry awards remedies based on its December 1998 decision which found that Kinark Child and Family Services and its manager, Harry Oswin, had infringed the rights of James Moffatt. In particular, the Board of Inquiry found that Kinark and Oswin had infringed Moffatt's right to be free from discrimination in employment on the basis of his sexual orientation, and had also infringed his right to claim and enforce his rights under the Ontario Human Rights Code without reprisal.

Moffatt is a gay man who held a supervisory position with Kinark. Over a five-year period Moffatt was subjected to discriminatory rumours in the workplace. When he asked that the rumours be investigated, his manager, Oswin, failed to take appropriate steps. Moffatt's employment was terminated in a manner that the Board of Inquiry found unfair, but not discriminatory. Subsequent to his termination, however, the Board of Inquiry found that a misleading and inaccurate report of child abuse was made by Oswin to the Children's Aid Society and that this was, in part, an act of reprisal against Moffatt for claiming that his rights were infringed.

The remedial authority of the Board of Inquiry is set out in s. 41(1) of the Ontario Human Rights Code. The Board finds that there are several categories of remedies, which may be awarded under this section. Under s. 41(1)(a) a Board of Inquiry can order personal remedies, such as promotion or reinstatement in employment. It can also order public interest remedies, such as the establishment of workplace anti-discrimination remedies. Under s. 41(1)(b), a Board of Inquiry can order monetary compensation for specific losses, such as lost earnings (sometimes referred to as special damages), and compensation for the loss of the right to freedom from discrimination (sometimes referred to as general damages). Also under s. 41(1)(b) a Board can order compensation for mental anguish up to the statutory limit of $10,000, where the discriminatory conduct has affected the psychological well being of the complainant, and has been wilful or reckless.

The Commission seeks $100,000 on behalf of Moffatt as compensation for his experience of discrimination and the mental anguish arising from it. The Commission justifies this figure by arguing that there should be separate awards against Oswin and Kinark for each of the violations.

The key issues raised by the requested award are: (1) is the Commission seeking double recovery by requesting separate compensation for the poisoned work environment and for the failure to investigate and address it; (2) is there a statutory limit on monetary compensation for the complainant's experience of discrimination, as well as on mental anguish awards; (3) can each respondent be ordered to compensate the complainant in respect of each infringement; and (4) does Kinark's corporate liability support a separate award?

Kinark submitted that the Commission was seeking double recovery by requesting separate awards for the poisoned work environment and for the failure of management to investigate. The Board of Inquiry considers the decision in Naraine v. Ford Motor Co. of Canada (No. 5), which was upheld by the Ontario Court, General Division on appeal. In that case, the Board of Inquiry ordered what could be called a "double award", but on a different basis. That award was made on the basis that two different sections of the Code were violated. Here only one section of the Code was violated.

The Board of Inquiry determines that where there is a finding that a complainant has been subjected to discriminatory working conditions which are not addressed appropriately by management, the infringement of the right to be free from discrimination constitutes one basis for compensation under s. 41(1)(b) not two.

The Commission argued that, notwithstanding the $10,000 limit on awards for mental anguish, there is no similar limit on compensation for the experience of discrimination. However, the Board of Inquiry finds that there is an implied limit of $10,000 on a monetary award for humiliation, loss of dignity and hurt feelings. Because s. 41(1)(b) provides that an award of up to $10,000 can be made only if a complainant has suffered mental anguish, and only if the infringement was wilful and reckless, it would not be consistent to allow unlimited awards for the emotional impact of discrimination that did not cause mental anguish and was not engaged in wilfully or recklessly.

The Commission sought separate awards against each respondent, Kinark and Oswin. The Board of Inquiry rules that the wording of s. 41(1)(b) supports the interpretation that each party who has infringed a right can be ordered to compensate the complainant. If more than one party has infringed a complainant's right, a Board of Inquiry can order each party to pay an appropriate amount of compensation, including up to $10,000 for the experience of discrimination, and up to $10,000 for mental anguish. However, if the liability of one of the respondents arises through the conduct of another person, who may or may not be named as a respondent, other considerations may apply.

The Commission sought against Kinark a maximum award of $10,000 for general damages and $10,000 for mental anguish for each infringement. This raised the issue of whether Kinark was liable once, or twice, for the infringements caused by Oswin's conduct.

The Board of Inquiry determines that a corporate respondent can be held liable, or jointly and severally liable, for the discriminatory conduct of an employee. However, the secondary liability of the corporation cannot become a basis for a separate additional award. The liability of the employee flows through to the employer, but it is only one liability.

The Board of Inquiry concludes that the following general principles should be applied in fashioning a monetary remedy under s. 41(1)(b) in this case:

Ӣ damages of up to a maximum of $10,000 can be ordered to compensate a complainant for humiliation and hurt feelings associated with the experience of discrimination (general damages);

Ӣ a separate award of up to a maximum of $10,000 can be ordered if the infringement was wilful or reckless and caused mental anguish;

Ӣ where there is discriminatory conduct by more than one respondent, monetary compensation can be ordered against each respondent for general damages and for mental anguish;

Ӣ where a respondent infringes more than one right, monetary compensation can be ordered in respect of each right;

Ӣ a finding of vicarious or corporate liability for the actions of an employee does not support a further separate award.

The Board of Inquiry orders Kinark Child and Family Services and Harry Oswin, jointly and severally, to pay to James Moffatt $10,000 as compensation for his experience of sexual orientation discrimination; $10,000 as compensation for the mental anguish arising from the discrimination; $6,000 as compensation for the violation of his right to enforce human rights protections without reprisal; $10,000 for mental anguish arising from the reprisal; compensation for lost earnings from the time of his dismissal to the commencement of new employment in 1993. Interest is ordered on this award.

In addition, the Board of Inquiry orders Kinark Child and Family Services to reimburse the complainant for counselling services up to $5,000; to provide the complainant with appropriate written and oral references; to offer Moffatt an interview for any open supervisory position with Kinark for a period of two years; to circulate a copy of the decision of the Board of Inquiry to all staff; and to develop and implement an internal human rights complaint procedure. Finally, the Board of Inquiry requires Kinark to negotiate with Moffatt a mutually satisfactory employment contract, and retained jurisdiction to deal with this last issue if it should be necessary.

[Ed. Note: See also (No. 1) (1995), C.H.R.R. NP/96-132, (No. 2) (1995), C.H.R.R. NP/96-133, (No 3) (1996), C.H.R.R. NP/97-34, and (No. 4) (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.).]

CASES CITED

Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.): 84

Bryan v. PMI Food Equipment (No. 2) (1998), C.H.R.R. NP/98-207, [1998] O.H.R.B.I.D. No. 18 (QL) (Bd.Inq.): 76

Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 20

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.): 29

Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 4) (1996), 1996 CanLII 20059 (ON HRT), 27 C.H.R.R. D/230 (Ont. Bd.Inq.): 6, 24, 37

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.): 23, 27, 37

Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 2) (1999), 1999 CanLII 15056 (ON SC), 34 C.H.R.R. D/405, [1999] O.J. No. 2530 (QL) (Gen.Div.): 7, 24

Fu v. Ontario (Government Protection Service) (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.): 6

Ghosh v. Domglas Inc. (No. 2) (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 (Ont. Bd.Inq.): 30, 34

Imperial Oil Ltd. v. Entrop (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213 (Ont. Bd.Inq.): 29

Imperial Oil Ltd. v. Entrop (1998), 1998 CanLII 14954 (ON CTGD), 30 C.H.R.R. D/433, [1998] O.J. No. 422 (QL) (Gen.Div.): 29

McKinnon v. Ontario (Ministry of Correctional Services) (No. 3) (1998), 1998 CanLII 29849 (ON HRT), 32 C.H.R.R. D/1 (Ont. Bd.Inq.): 30, 34

Moffatt v. Kinark Child and Family Services (No. 4)(1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd.Inq.): 1, 4, 46

Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701: 75

York Condominium Corp. No. 216 v. Dudnik (1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 (Ont. Div.Ct.): 10, 28

LEGISLATION CITED

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43: 103

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

s. 5(1): 5, 18, 24, 40, 76

s. 5(2): 5, 24

s. 8: 18, 40

s. 9: 18

s. 41(1): 8, 19

s. 41(1)(a): 16, 89

s. 41(1)(b): 10, 16, 25, 32, 89

s. 45(1): 5, 38

INTRODUCTION

1In a decision released on December 2, 1998 [reported 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205], I found that the rights of James Lawrence Moffatt ("Moffatt") under the Human Rights Code [R.S.O. 1990, c. H.19] ("Code") had been infringed by Kinark Child and Family Services ("Kinark") and its manager Harry Oswin ("Oswin") during the period of Moffatt's employment at Kinark between 1986 and 1991. In particular, I found that Kinark and Oswin had infringed Moffatt's right to be free from discrimination in employment on the basis of his sexual orientation and, further, had infringed his right to claim and enforce his rights under the Code without reprisal.

2Following release of the decision, the hearing was reconvened in June 1999 to consider evidence and submissions on remedy. This is my decision on remedy. For ease of reference, an outline of the decision is set out below.

BACKGROUND

CORPORATE LIABILITY

REMEDIAL AUTHORITY OF THE BOARD OF INQUIRY

REMEDIES SOUGHT BY THE COMMISSION AND COMPLAINANT

POSITION OF THE RESPONDENTS

ANALYSIS AND DETERMINATIONS

Monetary Compensation for the Experience of Discrimination and for Mental Anguish

Double Recovery Statutory Limit on Awards Separate Awards Against Each Respondent Corporate Liability General Principles Maximum Entitlement Wilful or Reckless Evidentiary Basis for Compensation

In Respect of the Infringement of s. 5(1) In Respect of the Infringement of s. 8

Damages for the Impact of the Infringements on Employment Income

Reinstatement

Employment References

Interview Opportunities

Re-Employment Counselling

Distribution of Decision

Human Rights Complaint Procedure

Letter of Apology

Medical Expenses

ORDER

BACKGROUND

3The evidence in this case was extensive and required detailed findings of fact in relation to events which spanned a five-year period. I will not attempt to summarize my findings in this decision except as is necessary to give context to my determinations on remedy. In summary, however, I found that Moffatt was subjected to discriminatory rumours in the workplace; that he brought his suspicions about the nature, source and extent of the rumours to the attention of his manager, Oswin; that Oswin failed to take appropriate steps to investigate the rumours; and that Oswin failed to advise senior management at Kinark of Moffatt's allegations. Further, I held that Moffatt's employment was terminated in a manner which I found to be unfair, but I was not persuaded, on a balance of probabilities, that the termination was because of his sexual orientation or because he had begun to characterize his treatment as a violation of his human rights. Finally, I found, on a balance of probabilities, that a misleading and inaccurate report of suspected child abuse, made by Oswin to the Children's Aid Society ("CAS"), after Moffatt's termination, was in part an act of reprisal against Moffatt for his claim that his rights were being infringed by the workplace rumours.

CORPORATE LIABILITY

4In the December 1998 decision [at p. D/236], I held that Kinark was both vicariously and directly liable for the discriminatory work environment, the failure to address the discrimination, and the retaliatory abuse report. My reasons for characterizing the liability as both vicarious and direct were not articulated in the decision and are relevant to my determinations on remedy.

5Section 45(1) of the Code provides that an act of an employee in the course of his/her employment is deemed to be an act of the corporation. Although harassment under s. 5(2) is excluded under s. 45(1), a finding of discriminatory work conditions under s. 5(1), as in this case, is subject to the operation of s. 45(1). Relying on s. 45(1), I found Kinark to be vicariously liable for the discriminatory gossip of junior employees and for Oswin's failure to investigate and address the rumours, as well as for Oswin's misleading sexual abuse report to the CAS.

6I also held Kinark to be directly liable for the failure to deal with the discriminatory rumours and the retaliatory abuse report on the basis of the "organic theory of corporate liability", set out in the Wei Fu v. Ontario Government Protection Service (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 at D/2801 (§ 22922) as follows:

Where the employer is a corporate entity and an employee is in contravention of the Code, and that employee is part of the ”˜directing mind' of the corporation, then the employer corporation is itself personally in contravention.

The Wei Fu approach to corporate liability was applied to a poisoned work environment in Naraine v. Ford Motor Company of Canada Ltd. (No. 4) (1996), 1996 CanLII 20059 (ON HRT), 27 C.H.R.R. D/230 at D/240 ( § 58) as follows:

... Where management knows or should have known of the racial harassment and does not take steps to eliminate or minimize it, as in this case, the respondent corporation also becomes liable under the "organic theory of corporate responsibility".

7Since the release of my decision in December 1998, the Divisional Court has released its decision upholding Naraine (1999 CanLII 15056 (ON SC), [1999] O.J. No. 2530 (QL) [reported 34 C.H.R.R. D/405]) on the question of corporate liability. The Court commented with approval on the fact that Naraine followed the Wei Fu decision in holding the employer "directly liable for breaches of s. 4(1) and (2) [now 5(1) and (2)] without reliance on the deemed liability provision contained in s. 44 [now s. 45] of the Code".

REMEDIAL AUTHORITY OF THE BOARD OF INQUIRY

8The remedial authority of the Board is established in s. 41(1) of the Code as follows:

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.

9Ontario human rights jurisprudence has articulated several categories or types of remedies which may be requested under s. 41(1). Under subpara. (a), the Board has ordered both personal remedies, such as promotion or reinstatement in employment, and public interest remedies, such as the establishment of workplace anti-discrimination policies. Under subpara. (b), the Board has ordered monetary compensation for specific losses, such as lost earnings, as well as for less-readily quantifiable losses, including the loss of the right to freedom from discrimination. These two types of restitutional damages are commonly referred to in the jurisprudence as "special damages" and "general damages" respectively, although these terms do not appear in the legislation.

10In assessing the quantum of "general damages" for loss of the right to freedom from discrimination, the Board has considered the intrinsic value of the infringed right, as well as the complainant's experience of discrimination, including such factors as humiliation, hurt feelings and loss of self-respect. Where the discriminatory conduct has affected the psychological well-being of the complainant, and has been wilful or reckless, the Board has exercised its discretion under s. 41(1)(b) to make an additional award as compensation for the complainant's mental anguish, up to the statutory limit of $10,000. The Divisional Court, in York Condominium Corp. No. 216 v. Dudnik(1991), 1991 CanLII 13171 (ON CTGDDC), 14 C.H.R.R. D/406 directed that any damages for emotional stress or suffering must be ordered as a mental anguish award, and not as "general damages".

REMEDIES SOUGHT BY THE COMMISSION AND THE COMPLAINANT

11The Commission and the complainant are seeking a comprehensive remedy in this case, including:

Ӣ reinstatement in employment at a comparable position for a period of one year;

Ӣ special damages to compensate the complainant for the impact of the discrimination on his career and, specifically, on his employment income between 1991 and 1998;

Ӣ special damages for medical expenses incurred by the complainant that would have been covered by his benefits as a Kinark employee;

Ӣ general damages for the loss of the right, under s. 5(1) of the Code, to be free from discrimination in employment on the basis of sexual orientation;

Ӣ general damages for the loss of the right, under s. 8 of the Code, to be free to claim and enforce human rights without reprisal;

Ӣ compensation for the mental anguish suffered by the complainant as a result of the infringement of his rights under s. 5(1) and s. 8;

Ӣ a written letter of apology from Kinark and Oswin to the complainant.

12In addition, the Commission is seeking an order requiring Kinark to:

Ӣ post and circulate a summary of the December 2, 1999, decision, and this decision, at all its branches and at "affiliated" Children's Aid Society ("CAS") offices;

Ӣ ask the York Region CAS to expunge the inaccurate sexual abuse reports from its records and to insert a copy of the December 1998 decision into the client files of the two children at issue in this complaint (referred to in the decision as Guy and Pat);

Ӣ recruit and retain a human rights advisor to implement an agency-wide anti-discrimination complaints procedure;

Ӣ provide the complainant with a current letter of reference, drafted and approved by all parties, and oral references consistent with its contents;

Ӣ interview the complainant at his request for any vacancies at the level of supervisor or higher for a period of two years following the release of this decision;

Ӣ compensate the complainant for the cost of appropriate termination counselling.

POSITION OF THE RESPONDENTS

13At the outset, counsel for Kinark advised me that Kinark would be assuming responsibility for any monetary awards made as against Oswin. As the remedy hearing progressed, counsel for Kinark indicated a willingness to take steps to address certain of the remedies sought by the Commission. Kinark offered to pay for counselling services for Moffatt to a maximum of $5,000. Kinark offered to make additional copies of the Board's decisions available to its staff at all its locations, and to the York Region CAS. Counsel for Kinark took the position that it had already put in place an appropriate harassment and discrimination policy, but expressed Kinark's willingness to take any further steps found to be necessary.

14Turning to monetary compensation, Kinark acknowledged that Moffatt was entitled to general damages for his experience of discrimination, and to an award for mental anguish on the basis that the infringements were reckless, but opposed the quantum of the requested award for general damages and mental anguish, which amounted to $100,000 in total. Kinark's position was that the award for general damages and mental anguish should be in the range of $14,000 to $30,000 to be consistent with recent jurisprudence of this Board.

15In other areas, Kinark submitted that the Board either did not have the jurisdiction to make the order sought, or if it did, ought not to exercise its jurisdiction. Kinark argued that reinstatement and special damages for wage loss were both outside the scope of my order-making authority in this case, given my finding that Moffatt's dismissal was non-discriminatory. In addition, for the same reasons, Kinark opposed an order requiring it to interview Moffatt in respect of any vacancies at a supervisory level. Kinark also opposed an ordered apology, arguing that circulation of the decision among staff had already achieved the "educative function" of an apology. An ordered letter of reference was also said to be inappropriate, because such a reference "could not honestly be unequivocally positive", and on the basis that Moffatt's employment history with Kinark is too dated to make such a reference of any significant value. Kinark relied as well on the fact that written references are against Kinark's policy in respect of all former employees.

ANALYSIS AND DETERMINATIONS

16My conclusions with respect to each category of remedy are set out below. In the areas in which there was significant dispute between the parties, I have considered the competing principles in some detail in making my determination. I deal with the monetary remedies requested under s. 41(1)(b) before considering reinstatement and the public interest remedies requested under s. 41(1)(a).

Monetary Compensation for the Experience of Discrimination and for Mental Anguish

17The Commission, on behalf of the complainant, is seeking an award of $100,000 to compensate Moffatt for his experience of discrimination, and for his mental anguish arising out of that experience. The requested award is broken down under the three sections of the Code found to be infringed as set out below.

18In respect of the infringement of s. 5(1) of the Code:

Ӣ $10,000 as against Oswin as general damages for "having permitted a poisoned work environment as a condition of employment";

Ӣ $10,000 as against Oswin as general damages "for failure to take adequate steps to investigate and address the discrimination";

Ӣ $10,000 as against Kinark as general damages for "having permitted a poisoned work environment as a condition of employment";

Ӣ $10,000 as against Kinark as general damages "for failure to take adequate steps to investigate and address the discrimination";

Ӣ $10,000 as against Kinark only, as compensation for mental anguish, on the basis that the infringement of s. 5(1) was wilful and reckless.

In respect of the infringement of s. 8 of the Code:

Ӣ $10,000 as against Kinark "as general damages for the inaccurate sexual abuse report" to the CAS;

Ӣ $10,000 as against Oswin "as general damages for the inaccurate sexual abuse report" to the CAS;

Ӣ $10,000 as against Oswin as compensation for mental anguish, on the basis that the infringement of s. 8 was wilful and reckless;

Ӣ $10,000 as against Kinark as compensation for mental anguish, on the basis that the infringement of s. 8 was wilful and reckless.

In respect of s. 9 of the Code:

Ӣ $10,000 as against Kinark as compensation for mental anguish arising out of the infringement of s. 9.

19The submissions of the parties raised several issues with respect to the proper basis for assessing monetary compensation, particularly with respect to the so-called "general damages" heading. I propose to deal with the clearest issue first. Kinark submitted that a separate award in relation to s. 9 would be inappropriate. I agree. Section 9 provides that "No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part". The effect of s. 9 is that a direct or indirect infringement of any right set out in Part I constitutes a contravention of the Code. The remedial authority of the Board under s. 41(1) flows from a finding that a Part I right has been infringed, contrary to s. 9. Section 9 cannot form the basis for a separate head of damages.

20Moving on to the more complex issues, I note at the outset that counsel relied extensively on Ontario human rights jurisprudence in making submissions as to the proper scope of the damage award. What emerges from a detailed review of that case law is that there has been no consistent approach to the assessment of compensation, particularly for non-specific losses addressed in "general damages" awards. Given the lack of precision in the statutory language, and the range of interpretation in the jurisprudence, it is not surprising that the Commission, which has carriage of human rights complaints at hearings, has urged varying approaches to the application of s. 41(1)(b), depending on the particular findings in each case. In general, the Commission has for several years taken the position, in submissions on remedy, that the quantum of damages in early human rights decisions was inappropriately low. In taking this position, the Commission relies on the following passage in Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at D/2196, §18526:

Although damages awards in human rights cases historically were small in size, they have become progressively more substantial in recent years. It is now a principle of human rights damage assessments that damage awards ought not to be minimal, but ought to provide true compensation other than in exceptional circumstances, for two reasons. First, it is necessary to do this to meet the objective of restitution, as set forth above. Second, it is necessary to give true compensation to a complainant to meet the broader policy objectives of the Code. It is important that damage awards not trivialize or diminish respect for the public policy declared in the Human Rights Code.

21In the present case, the Commission seeks a very significant award because of its position that the complainant has suffered enormously as a result of the discrimination. Before reviewing the evidence on the impact of the discrimination, it is important to resolve the more fundamental issues raised by the scope of the award sought.

22The key issues raised by the requested award are:

Ӣ Is the Commission seeking double recovery in requesting separate compensation for the poisoned work environment and for the failure to investigate and address the poisoned work environment?

Ӣ Is there a statutory limit on monetary compensation for the complainant's experience of discrimination (including insult to dignity, humiliation), as well as on mental anguish awards?

Ӣ Can each respondent be ordered to compensate the complainant in respect of each infringement?

Ӣ Does Kinark's corporate liability support a separate award?

Each of these issues is considered below.

Double Recovery

23Kinark submitted that the Commission was seeking double recovery in requesting separate awards for the poisoned work environment and for the failure to investigate the discriminatory rumours. In Kinark's submission, there was one violation of s. 5(1), which constituted one basis for compensation. Counsel relied on the decision of Professor Backhouse (sitting as a part-time member of the Board of Inquiry) in Naraine (No. 5) [1996 CanLII 20056 (ON HRT), 28 C.H.R.R. D/267] at D/274 (§ 43). In that case, separate awards of general damages were not ordered in respect of both the poisoned work environment and the failure of management to investigate the poisoned environment.

24In fact, the Naraine (No. 5) decision, upheld by the Divisional Court on appeal, supra, ordered what could be called a "double award" of general damages on a different basis. General damages in the amount of $20,000 were ordered on the basis that the complainant was subjected to racially-discriminatory working conditions in violation of both s. 4(1) (now s. 5(1)) and s. 4(2) (now s. 5(2)): Naraine (No. 5) at D/274 (§§ 43–44). The award is based on the finding in the decision on the merits, Naraine (No. 4), supra, at D/239 (§ 53), that the racially-derogatory atmosphere was captured by both s. 4(1), as discrimination in employment, and also by s. 4(2), as racial harassment in employment, after that provision was added to the statute in 1982.

25I do not need to comment on this particular aspect of the Naraine approach to damages in the present case. The discriminatory work environment suffered by Moffatt was alleged to be a violation of s. 5(1) but not of s. 5(2), because sexual orientation is not included as a ground of harassment under s. 5(2). However, I agree with the result in the Naraine decision on the other "double recovery" issue cited by Kinark. Where there is a finding that a complainant has been subjected to discriminatory work conditions which are not investigated by management, the resulting infringement of the complainant's right to be free from discrimination constitutes one basis for compensation under s. 41(1)(b) for losses arising out of that infringement, not two. I accept Kinark's position that it would be double recovery to order separate compensation for the discriminatory rumours and for the failure to investigate the rumours. Although either one of these two findings would support an award for infringement of s. 5(1), together the two findings do not support a double award.

26This is consistent with my decision on the merits which finds that management's failure to investigate the rumours was one factor that poisoned Moffatt's working conditions. The fact that there was more than one factor creating the discriminatory work environment may be relevant to the quantum of the compensation, but does not create a second head of damages.

Statutory Limit on Awards

27The Commission takes the position that, notwithstanding the $10,000 limit on mental anguish awards, the proper interpretation of s. 41(1)(b) is that there is no limit on "general damages" to compensate a complainant for the experience of discrimination, including factors such as insult to dignity and humiliation. The Naraine (No. 5) decision explicitly supports this interpretation, stating: "There is no ceiling on the amount of damages that can be awarded under this heading" (at D/273, § 39). However, in that decision, Professor Backhouse limited the quantum of her general damage award to $10,000 in respect of each of the two provisions found to be infringed: s. 4(1) (now s. 5(1)) and s. 4(2) (now s. 5(2)).

28In my view, there is an implied statutory limit of $10,000 on that part of a monetary award which is ordered to compensate a complainant for the humiliation, loss of dignity and hurt feelings associated with his or her experience of discrimination. I have concluded that this is the only interpretation of s. 41(1)(b) that is consistent with Divisional Court decision in Dudnik. The Court held that the Board erred in ordering, as "general damages", an amount to compensate the complainants for their emotional stress arising from the experience of discrimination. The Court concluded that emotional stress is only properly considered as a basis for a mental anguish award, where the infringement has been found to be wilful or reckless. Accordingly, since Dudnik, human rights adjudicators have ordered, as "general damages", an amount to compensate the complainant for the experience of the discrimination other than emotional or mental anxiety, particularly for humiliation, loss of dignity and hurt feelings.

29Given that s. 41(1)(b) provides that complainants can request an award of up to $10,000, if and only if they have suffered mental anguish, and if and only if the infringement was wilful or reckless, it would be inconsistent if the section also allowed unlimited awards for the emotional impact of the discrimination that did not cause mental anguish and was not engaged in wilfully or recklessly. This is not to minimize the significant humiliation and loss of dignity that may be suffered by a complainant, particularly in cases of repeated and public discriminatory conduct. In such cases, damages of $10,000 have been ordered to compensate a complainant for his/her experience of discrimination and for the intrinsic value of the infringed right: Entrop v. Imperial Oil Ltd. (No. 7)(1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213, upheld [1998] O.J. No. 422 (QL) [reported 1998 CanLII 14954 (ON CTGD), 30 C.H.R.R. D/433] (Gen.Div.); 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.).

Separate Awards Against Each Respondent

30The Commission is seeking a separate maximum award against each of the respondents: Oswin and Kinark. The application of the statutory limit where there is more than one respondent has been recently considered in McKinnon v. Ontario (Ministry of Correctional Services) (No. 3)(1998), 1998 CanLII 29849 (ON HRT), 32 C.H.R.R. D/1, a decision of Professor Hubbard (sitting as a member of the part-time panel of the Board of Inquiry). In McKinnon, Professor Hubbard cites his earlier decision in Ghosh v. Domglas Inc. (1992), 1992 CanLII 14247 (ON HRT), 17 C.H.R.R. D/216 [at D/234, § 118] in the following passage at D/66 (§ 328):

While the Code limits the amount of an award of monetary compensation in respect of mental anguish, it does not restrict the number of such awards a board may order after a hearing where it finds distinct rights to have been infringed in separate incidents, or series of incidents, and whether by the same or by different respondents ... Each respondent, as a party found to have infringed a Part I right in contravention of s. 8 of the Code, may be directed to make restitution, including an award for mental anguish up to $10,000, for each infringement.

31Professor Hubbard does not distinguish between what he refers to as "general damages" and as "damages for mental anguish" in either of his decisions in Ghosh and in McKinnon. In fact, the terms are used interchangeably in the two decisions. His approach to the statutory limit in the two decisions was to award one amount for both general damages and mental anguish "in relation to each right infringed and each party who infringed it", so that the global amount in fact exceeded the $10,000 limit: Ghosh (at p. D/234, § 117), McKinnon (at p. D/66, § 329). None of the counsel before me commented on the fact that these two decisions follow a line of cases in which general damages and mental anguish damages are treated as one heading for compensation purposes. The submissions were consistent with the jurisprudence holding that s. 41(1)(b) allows the Board to order damages for the experience of discrimination, apart from any award for mental anguish. Accordingly, I will not follow that aspect of Professor Hubbard's approach.

32I am persuaded, however, that the wording of s. 41(1)(b) supports the interpretation that each party found to have infringed a right of the complainant can be ordered to pay monetary compensation for losses arising from their own discriminatory conduct. The section empowers the Board to "direct the party" found to have infringed "a right of the complainant" "to make restitution, including monetary compensation". If more than one party has infringed "a right of the complainant", the statutory language permits the Board to direct each such party to pay an appropriate amount of compensation, including up to $10,000 for the experience of discrimination, and up to $10,000 for mental anguish arising out of that experience. However, other considerations apply if the liability of one of the respondents arises through the conduct of another person, who may or may not be named as a respondent. This issue is discussed below with reference to corporate liability.

Corporate Liability

33The Commission is seeking, as against Kinark, a maximum award of $10,000 for general damages and $10,000 for mental anguish, in respect of each infringement. This raises an issue in respect of Kinark's secondary liability for the conduct of Oswin. Simply put, the issue is whether or not Kinark is liable once, or twice, in respect of each infringement caused by Oswin's conduct.

34To understand this issue, it is useful to contrast the Commission's approach in our case to the approach of Professor Hubbard in Ghosh and McKinnon. In those decisions, where the corporate respondent is found to be liable for the discriminatory conduct of a personal respondent, the order holds the corporate respondent jointly and severally liable with the individual for the award in respect of that conduct. There is no separate award against the corporate respondent alone in respect of the conduct of the personal respondent for which the corporation has been held liable: Ghosh (at pp. D/234–D/235, §§122, 125, 127); McKinnon (at p. D/67, § 334).

35In other words, the decisions in Ghosh and in McKinnon both assess a sum as an appropriate award in respect of each infringement by each personal respondent, and then find the corporate respondent to be jointly and severally liable for each such award with the personal respondent. Where a separate award is ordered against the corporate respondent, these awards are only in respect of events which have not been included as a basis for other joint liability awards. This approach is articulated in McKinnon at p. D/67 (§ 334) and in Ghosh at p. D/235 (§ 129).

36I adopt this approach of Professor Hubbard. Where a corporate respondent is found liable for the conduct of an employee, the corporate respondent can be held liable, or jointly and severally liable, for an award arising out of that employee's conduct, but the secondary liability of the corporation does not become the basis for a separate additional award. In other words, the liability of the employee flows through to the employer, but it is only one liability.

37This approach is not inconsistent with that of Professor Backhouse in the Naraine decisions. In Naraine (No. 4) (at p. D/237, § 39 and at p. D/240, § 55), supervisory personnel, including named respondents, are found to have been involved, directly or indirectly, in the racially-derogatory name-calling at the Ford Motor Company plant in Windsor. However, after determining that the corporate employer was liable for the infringements of its staff, the award was made against the company only: Naraine (No. 5) (at p. D/274, § 50).

General Principles

38I have concluded that the following general principles should be applied in fashioning a monetary award under s. 41(1)(b) in the present case.

1. Damages of up to a maximum of $10,000 can be ordered to compensate a complainant for his/her loss of dignity, hurt feelings and humiliation, associated with the experience of discrimination, provided that no part of that award is as compensation for emotional stress or mental anxiety.

2. A separate award for mental anguish, up to a maximum of $10,000, can be ordered if the infringement is found to be wilful or reckless and there is evidence of emotional stress or anxiety.

3. Where there is discriminatory conduct by more than one respondent, monetary compensation can be ordered against each respondent in respect of their own discriminatory conduct, including an amount as "general damages" to compensate the complainant for his/her experience of the discrimination, and a separate mental anguish award if the infringement is wilful or reckless.

4. Where a respondent infringes more than one right of the complainant under Part I of the Code, monetary compensation can be ordered in respect of each protected right which has been infringed by the respondent, up to the maximum amount.

As an aside, I note that for the purposes of this decision, I do not have to determine if the word "right", which I have taken from s. 41(1), should be taken to refer either to every section of the Code, or to each enumerated ground of discrimination, to allow double recovery if the same conduct or pattern of conduct infringes two sections of the statute or infringes one section on the basis of two enumerated grounds.

5. Where an entity is deemed to be liable for discriminatory conduct under s. 45(1) of the Code, the entity becomes responsible for the assessment of damages arising out of the conduct of the person with primary liability, whether or not that person is a party to the proceeding and is held jointly or severally liable. A finding of deemed or vicarious liability does not support a further separate award in respect of that liability.

6. Where a corporation is held liable for the conduct of a management employee, on the basis that the manager is part of the "directing mind" of the corporation, the corporation becomes responsible for the assessment of damages arising out of the conduct of the manager, whether or not that person is a party to the proceeding and is held jointly and severally liable. A finding of corporate liability for the actions of a management employee does not support a further separate award in respect of that liability.

Maximum Entitlement

39Applying these principles to the present case, I conclude that the maximum potential compensation for the experience of discrimination and for mental anguish would amount to $40,000. This can be broken down under each of the infringements as follows.

40In respect of the infringement of the s. 5(1) right to be free from sexual orientation discrimination in employment:

Ӣ $10,000 as against Oswin and Kinark, jointly and severally, as damages to compensate Moffatt for his experience of the infringement, including hurt feelings, humiliation, loss of dignity;

Ӣ $10,000 as against Oswin and Kinark, jointly and severally, as an award to compensate Moffatt for his mental anguish arising out of the discrimination;

In respect of the infringement of the s. 8 right to claim the protection of the Code without reprisal:

Ӣ $10,000 as against Oswin and Kinark, jointly and severally, as damages to compensate Moffatt for his experience of the infringement, including hurt feelings, humiliation, loss of dignity;

Ӣ $10,000 as against Oswin and Kinark, jointly and severally, as an award to compensate Moffatt for his mental anguish arising from the reprisal.

Wilful or Reckless

41The respondents conceded that the infringement of the complainant's rights had been wilful or reckless within the meaning of s. 41(1)(b), entitling Moffatt to monetary compensation for mental anguish caused by the infringement.

Evidentiary Basis for Compensation

42Following the principles set out above, I will consider the evidentiary basis for an award to compensate the complainant for his experience of discrimination and reprisal and/or for his mental anguish arising from that experience. I will determine the appropriate quantum of an award in respect of each infringement.

IN RESPECT OF THE INFRINGEMENT OF SECTION 5(1)

43Turning first to the infringement of Moffatt's right to work in an environment free from sexual orientation discrimination, I find that the evidence supports a maximum award as general damages for his experience of discrimination and a maximum award for mental anguish. In assessing compensation for the experience of discrimination, I have considered the intrinsic value of the infringed right, as well as the public humiliation suffered by Moffatt, the duration of the discriminatory treatment and the profound nature of the insult to his dignity. I have relied on the fact that Moffatt's dignity was publicly insulted in an intensely personal and private aspect of his life. In assessing an appropriate mental anguish award, I have considered the immediate and ongoing impact of the discrimination on Moffatt's emotional health.

44Moffatt was subjected to discriminatory treatment, because of his sexual orientation, in a very public way over a period of three and a half years while employed at Kinark. In the decision on the merits, I found that Moffatt's sexual orientation, and speculation that he had AIDS, were topics of open discussion among Kinark staff at various stages of his employment from 1988 onwards, and that much of the discussion was negative and hostile. Moffatt had ongoing medical difficulties and, whenever his health was an issue, speculation about AIDS and his sexual orientation resurfaced, more than once coupled with suggestions that Moffatt's employment should be reconsidered or terminated. I found that, at one point in 1988, the tenor of the discussion among senior staff about Moffatt's health, AIDS and his sexual orientation, was so negative as to bring his supervisor, Area Director Malcolm Savage, to tears when he spoke in support of Moffatt to his staff.

45By the spring and summer of 1991, the tenor of the workplace gossip about Moffatt among front-line staff had turned increasingly unpleasant. The impact on Moffatt had increased significantly. This was confirmed by the evidence of several Kinark employees and former employees. There was testimony that there was a constant "buzz" of negative and suspicious comments centering on the fact that Moffatt was a gay man fostering a boy, suggesting that Moffatt was having sex with his foster son. There was testimony that the gossip was "filtering back" to Moffatt, that he was "stressed out", "easily agitated" and "distraught".

46The December 1998 decision considers how Moffatt was affected by his experience during this period [at p. D/232, § 230]:

... His own testimony left no doubt that he was horrified by the thought that staff were suggesting that he could be having sex with Guy. He was devastated that a generous act — taking Guy into his home — was being viewed as an act of exploitation. He felt betrayed and deeply hurt that his management colleagues seemed unwilling to take his allegations seriously. He did not know whom to trust among front-line staff or management. He felt alone and isolated at work.

47It was undisputed that Moffatt openly, and angrily, sought help from his colleagues on the York Region management team on several occasions. He testified that it was frustrating and humiliating for him to have to ask, and re-ask, his colleagues to take steps to deal with workplace rumours which he believed were targetting him because of he was a gay man and had a foster son. I have found that help was not forthcoming. Although more than one senior staff person testified that they were surprised that Oswin did not take appropriate action during the summer of 1991, none of his colleagues expressed concern or support for or to Moffatt at the time. Several staff members who testified for both sides stated that Moffatt appeared to be in a state of significant stress and anxiety throughout the summer. His efforts to obtain assistance ended in humiliating defeat. He was told by Oswin that his job was hanging by a thread unless he dropped the whole issue of discriminatory gossip. After that conversation, Moffatt's physical and emotional health rapidly deteriorated. He was fired a month later and was on sick leave for most of the intervening period.

48I find that the way Kinark handled the termination increased the emotional impact of the workplace discrimination and had a very significant effect on the duration and extent of Moffatt's suffering. Kinark terminated Moffatt's employment on a without-cause basis. He was given no reason for his termination. The termination took place in the midst of a workplace plagued with speculation that Moffatt was having a sexual relationship with his foster son. Moffatt had demanded that management deal with the rumours, or what he knew about the rumours. He was told that his job was at risk unless he stopped bringing this issue to management. Not surprisingly, when he was fired, he believed that it was because he had claimed his rights under the Code in a letter written to Oswin shortly after he was told to drop the rumours issue. Moffatt had no other explanation. In these circumstances, he could only experience his termination as another publicly humiliating act of discrimination that he had been helpless to prevent.

49I found the evidence of Colleen Quinn helpful in assessing the impact on Moffatt of the way in which the termination was handled. Ms. Quinn was qualified as an expert witness in the area of career counselling and termination management. She testified about the inherent pressures of a situation in which an employer terminates an employee who has been subjected to a poisoned work environment. Assuming that the termination was unconnected to the discrimination, there would be a "tremendous onus" on the employer to manage the communication well, and to separate the discrimination issues from the loss of employment issues. The employee would already be operating with "a lot of rage"; the damage to him or her of not separating the issues would be "insidious", and could easily prevent him or her from recovering the self-esteem required to regain employment. It was her evidence that if, in this kind of situation, an employer fails to communicate the basis for the termination, the emotional impact on the employee will be "huge", particularly for an employee with excellent performance reviews prior to the unexplained termination, as in Moffatt's case.

50Ms. Quinn also gave evidence as to her assessment of Moffatt's actual recovery, on the basis of four hours of counselling sessions with him. She testified that it was her conclusion that the poisoned work environment, followed by his dismissal, had a very significant and continuing impact on Moffatt, producing anger and emotional pain, as well as a fear of going forward with his life and career.

51Moffatt's testimony also made it clear that he still suffers emotionally as a result of his treatment at Kinark, before he was fired and when he was fired. He has not felt whole as a person since. He has suffered long bouts of serious depression. He has demanded unwavering support from friends and appears to have cut himself off from, or been cut off by, people who were formerly his friends. His relationship with Guy has suffered because Guy has felt badly about the fact that the foster relationship triggered the discriminatory rumours and the misleading sexual abuse report. His relationship with his partner has suffered because of the damage to his self-esteem as a result of his inability to obtain a positive resolution of his difficulties during his final months at Kinark.

52In fact, Kinark did not dispute that Moffatt has suffered from depression and anxiety in the years since 1991, and particularly since 1993, but questioned the extent to which the discrimination was the cause. In addition to the testimony of Ms. Quinn, I have relied on the written report of Moffatt's doctor, and the testimony of Moffatt himself, his partner, and his father, in concluding that the discriminatory working conditions at Kinark, and the related circumstances of his firing, were key factors affecting his emotional health. Although the medical evidence indicated that there were other factors in Moffatt's life which have contributed to his depression and anxiety in the years since 1991, including poor physical health, the award of $10,000 is to compensate him only in respect of impact of the discrimination which he suffered as a Kinark employee.

IN RESPECT OF THE INFRINGEMENT OF SECTION 8

53Turning next to the sexual abuse report, I find that the evidence also supports a significant award as compensation for the experience of reprisal, and as compensation for the mental anguish arising out of that experience. In assessing an award for Moffatt's experience of reprisal, I have considered the intrinsic value of the infringed right, as well as the humiliation which he suffered as a result of the CAS sexual abuse investigation and the insult to his dignity as a parent figure to Guy. In assessing an appropriate mental anguish award, I have considered the immediate and ongoing impact of the retaliatory report on Moffatt's emotional health.

54It is difficult to separate the impact on Moffatt of the misleading abuse report from the impact of the rumours of abuse. I am awarding a lower amount as general damages for Moffatt's experience of reprisal to reflect the fact that there was a single triggering event, the CAS report. To the extent that the report was part of an ongoing pattern of conduct, compensation for that conduct has been already been [sic] awarded. However, the emotional impact of the misleading report cannot be minimized. The conduct of Kinark's head office after the CAS investigation magnified its effect. I have also considered the fact that Moffatt had already been fired when the report was made. At this stage, he was extremely vulnerable. I have assessed damages for the experience of reprisal at $6,000, and the mental anguish award arising out of that experience at $10,000.

55In the December 1998 decision, I did not find that it was an infringement of Moffatt's rights for Kinark to have contacted the CAS with their concerns about the remark made by Guy's girlfriend, Pat, suggesting possible future sexual activity between Moffatt and Guy. Rather, it was the content of that report which caused me to find that Moffatt's rights under s. 8 of the Code had been infringed. I was persuaded that the best explanation for the misleading and inaccurate information passed along to the CAS was that the report was made in part as an act of retaliation against Moffatt for continuing to claim that his human rights had been infringed by Kinark staff. In fact, it was the inaccurate and misleading information in the report which caused it to have a significant impact on Moffatt. Both expert witnesses agreed that, if Oswin had communicated accurate information about the facts as I found them, no investigation would have been initiated. In all likelihood, neither Moffatt nor Guy would have learned that Kinark had contacted the CAS, and Moffatt would not have suffered the humiliation of being the subject of a sexual abuse investigation undertaken by his professional colleagues at the CAS and involving his own foster son.

56The inaccurate information which Oswin provided to the CAS was such that an abuse investigation had to be initiated. Moffatt believed that the report was a direct product of the ongoing rumour-mill at Kinark which had, to the best of his knowledge, also cost him his job. The evidence left no doubt that the discriminatory rumours created a climate that made Pat's self-described joke appear more serious to the staff person who heard the comment and to other employees who heard about the comment second-hand. Management's inaction in the face of Moffatt's allegations of rumours can only have encouraged the staff to think that Moffatt was capable of sexual abuse of his foster son. Moffatt was very upset that Kinark's failure to investigate and address the rumours had seemingly led to an abuse allegation that threatened his professional reputation and humiliated Guy. These circumstances — that is, the fact that the report arose out of Moffatt's experience in a hostile workplace — resulted in the report having a much greater emotional impact on him than might otherwise have been the case.

57Moffatt also believed that everyone at Kinark, and eventually many people in the wider children's mental health sector, came to know about the sexual abuse report to the CAS. In fact, the evidence suggested that few people inside or outside Kinark knew for a fact that a formal report had been made to the CAS. Nonetheless, based on the testimony of Wade James, I find that, within Kinark, many residential care staff knew that Pat had made a remark suggesting possible sexual activity between Moffatt and Guy, and that the remark was being taken seriously by management. As well, the staff all knew that Kinark protocol, and the law, required that suspicions of sexual abuse be reported to the CAS. This event closely followed Moffatt's dismissal, when some members of staff were still not aware that he had been fired. This created a greater danger that people would assume that the dismissal was related to Pat's remark. Kinark made no efforts to assure its staff, a few days later, that their former colleague had been cleared by the CAS. Not surprisingly, there was testimony that speculation about possible sexual activity between Moffatt and Guy continued among Kinark staff right up to the commencement of this hearing.

58Several witnesses for both sides indicated that this kind of "bad news" was likely to "travel fast" within the children's mental health sector. I accept the testimony of Susan Miner, Director of Street Outreach Services ("SOS"), that she had heard "nebulous work rumours" about Moffatt, both before and after his dismissal, while she was employed at Toronto Youth Services, and later at SOS. She testified that she eventually heard gossip suggesting that he had been fired by Kinark for "some kind of abuse". This was Moffatt's worst fear — that he could never shake the cloud that hung over him after he was fired from Kinark, because of the rumours of abuse, followed by the abuse investigation. The evidence indicated that it was a realistic fear.

59Jeanette Lewis, Kinark's Executive Director, testified that she could not put the rumours to rest by advising her staff that Moffatt had been cleared, because, as a former employer, she did not receive confirmation from the CAS that the investigation had been dropped. She also testified that she considered that the outcome of the investigation was no longer any concern of hers or of Kinark.

60I found this statement to be surprising, given the ongoing litigation over several years. Moreover, senior Kinark staff in York Region knew very well that Moffatt had been immediately cleared by CAS. Moffatt and Guy lived just up the road from the York Region office. Peter Moore, who reported directly to Lewis, met with the CAS within days to discuss why it was still giving Pat permission to visit Guy at Moffatt's farm. Moore knew very well that the CAS had continued Guy's placement with Moffatt and was quite prepared, as Pat's guardian, to allow her to continue visiting Guy and Moffatt at the farm.

61By this time, Lewis and Moore both knew that Moffatt had raised a human rights issue before he was fired, and that Oswin had not informed them. As well, Moore knew that the CAS had probably pre-approved Pam's visit to the farm — the one that Oswin had given as the reason for Moffatt's termination. Not surprisingly, Lewis and Moore had lost confidence in Oswin's abilities as a manager. In these circumstances, Moore might well have wondered if Oswin had also mishandled the suspected abuse report. In fact, Oswin had not followed Moore's instructions to consult the CAS on a "no names" basis. For all of these reasons, it was incumbent on Moore or Lewis to take steps to clear up the cloud that hung over Moffatt's reputation as a result of the close proximity of Oswin's abuse report to Moffatt's dismissal. Although there were privacy interests to be considered, if Kinark had really been interested in clearing Moffatt's name on this score, it could have found an appropriate way to make a statement to staff.

62Kinark is responsible for the fact that the conduct of its head office staff, in the weeks after the sexual abuse report, made it more difficult for Moffatt to recover emotionally from the impact of the discontinued sexual abuse investigation. Even at the hearing, it was apparent that Moffatt was still angry and upset about the fact that Oswin's report had misleadingly suggested that Pat's comments were a "disclosure" of past sexual abuse. He has not been able to put behind him the anxiety and stress caused by Oswin's report. For all of these reasons, I find that a maximum award for mental anxiety is appropriate compensation in this case for the retaliatory way in which the abuse report was made.

Damages for the Impact of the Infringements on Employment Income

63As my earlier decision indicated, I was not persuaded that Kinark infringed Moffatt's human rights in terminating his employment. Accordingly, Moffatt is not entitled to special damages to compensate him for his loss of wages on this basis. However, counsel for Moffatt argued that Kinark should compensate his client to the extent that the discrimination and reprisal impacted on Moffatt's ability to become re-employed. Counsel submitted that Moffatt's career had been destroyed by the infringements of his human rights while a Kinark employee, and that Kinark's conduct after the dismissal compounded the financial impact of the discrimination and reprisal.

64Moffatt's counsel submitted that the following aspects of Kinark's conduct after the dismissal "perpetuated the wrong done to Larry Moffatt and ensured that the damage and loss which he had already sustained would continue":

Ӣ the failure to provide a written reference prior to 1992;

Ӣ the failure to give verbal references to prospective employers;

Ӣ the failure to provide meaningful career counselling;

Ӣ the failure to take steps to curb the continuation of rumours about Moffatt's sexual orientation and health and about possible sexual impropriety in his relationship with his foster son;

Moffatt sought compensation for his lost income from 1991 to the present, amounting to approximately $204,000.

65Kinark did not dispute Moffatt's figures with respect to his likely income had he remained a Kinark employee. Counsel submitted that I did not have the jurisdiction to make a wage-loss award given my finding that the termination was non-discriminatory. It was Kinark's position that the loss of income experienced by Moffatt was caused by his dismissal, not by the poisoned work environment or the relatiatory sexual abuse report, and thus was not a "loss arising out of the infringement" within the meaning of s. 41(1)(b). Counsel argued that, even if Kinark conceded that it could have taken certain steps, after Moffatt was dismissed, to respond to the discrimination allegations and to assist him in recovering financially and emotionally from the loss of employment, it was not required by the legislation to take such steps.

66Moffatt gave evidence about his job search after his dismissal from Kinark. He testified that, between October 1991 and December 1992, he sent out his resume to over fifty agencies and applied for advertised positions in Ontario and elsewhere, without success. During this period, he also attended three or four relocation counselling sessions paid for by Kinark, which he found to be completely unhelpful. He made informal inquiries about possible opportunities, by talking to friends and former colleagues. He testified that he seemed to come close to getting a job on two occasions, and believed that Kinark had blocked both opportunities by refusing to give a reference. He said that previously he had always been successful in being offered the positions for which he applied. He testified that he was "haunted" constantly by the fear that he was not successful in his job search because of rumours leaking out of Kinark about possible sexual abuse.

67I have already accepted the evidence of Susan Miner supporting Moffatt's view that his job search was affected by negative rumours. She testified that vague rumours about "some kind of abuse" were preventing him from being re-employed in the field. She testified that the ongoing legal proceedings fed the gossip and speculation.

68I also found the evidence of Jeanette Lewis, Kinark's Executive Director, instructive in assessing the extent to which Moffatt continues to be disadvantaged by discussion related to his employment at Kinark. Lewis explained in her evidence that she had discussed Moffatt's case, on a "no-names" basis, on several occasions over the last few years with a group made up of the senior administrators of the ten largest children's mental health agencies. Even if Lewis gave a completely neutral account of events, the effect of this discussion would be that any of these senior administrators would be able to identify Moffatt if he applied for a position at their agency today. All the administrators who testified for both sides made it very clear that, in any competition for a supervisory position over the last several years, there were always more than enough excellent candidates, with the result that a candidate with a troubled history would not be considered.

69Lothar Liehmann, Assistant Executive Director of Craigwood Youth Services, a children's residential care facility, gave evidence about his experience in contacting Kinark for an employment reference on Moffatt in December 1991. Liehmann was considering Moffatt for the position of Director of Residential Services. He testified that "things looked favourable" for Moffatt, and that he had arrived at the final stage of their employment process, which was to check references. Moffatt had told him about his legal action against Kinark, and also gave Liehmann the name of a senior Kinark employee who gave a good reference. However, Liehmann was required to speak to a previous supervisor and he eventually managed to speak to Lewis who refused to give him a reference. Lewis testified that she vaguely recalled speaking to Liehmann's director, not Liehmann himself, and that she declined to give a reference, citing litigation concerns and the fact that she did not have Moffatt's permission. Either way, Kinark's refusal to discuss Moffatt's performance forced Liehmann to tell Moffatt that he "could not proceed" with his application. Liehmann testified that he was disappointed and that it took him several months to come up with another suitable candidate.

70Counsel for Kinark asked Liehmann if he would have offered Moffatt the position if he had learned that Moffatt had made a decision about a client which had not been discussed in the context of the child's treatment plan. This was a reference to the sleepover incident that had led to Moffatt's dismissal. Liehmann's reply was that this type of thing happens all the time, and that there are all kinds of circumstances in which decisions are made without consulting with the treatment team. He also indicated that if he had learned from Kinark that there had been performance issues in 1991, he would not have automatically rejected Moffatt's application because, in his words, "there are employees who are not performing well in one situation who will do well in another".

71I find that Kinark's unwillingness, in late 1991, to give Moffatt an oral reference caused Craigwood to decline to proceed with Moffatt's application in circumstances in which it is more likely than not that a fair reference would have resulted in Moffatt receiving a job offer. Also, I accept Miner's evidence that Moffatt's job search was suffering in 1991/92 because of rumours about possible abuse. It is consistent with the findings in my earlier decision to the effect that Moffatt's sexual orientation was a topic of discussion within the children mental health sector outside of Kinark, before and during his employment at Kinark. Kinark is not responsible for the fact that there was ongoing gossip about Moffatt outside its organization, but Kinark may be responsible to the extent that its conduct increased Moffatt's vulnerability to discriminatory gossip in the larger sector after his dismissal. The evidence of several witnesses for both sides established that any such speculation about possible sexual abuse would virtually guarantee that he would have great difficulty becoming re-employed in the field. This is particularly true because of the severe reduction in the number of senior positions in the children's mental health sector in the years after the termination. More than one administrator indicated that there have been very few open competitions for supervisory positions, with most openings being filled internally.

72Kinark did not dispute that, once head office learned of the alleged discriminatory rumours, in a telephone call from Moffatt and through his counsel after his dismissal, it did not take any steps to investigate the allegation. Kinark also conceded that the limited outplacement counselling offered to Moffatt in 1991 did not meet his true needs given what it now knows about Moffatt's poisoned working conditions prior to his dismissal, and given current standards for this kind of counselling. Finally, Kinark acknowledged that it was not willing to give oral references for Moffatt, because of concerns related to the litigation, but that it did provide a favourable written reference in 1992.

73However, Kinark submitted that, after the dismissal, it had no continuing responsibilities to Moffatt that could properly affect its liability in this matter. I disagree. Although the termination itself was not found to be discriminatory, it did take place in working conditions poisoned by discrimination. Kinark head office was alerted to the human rights issue within four days of the dismissal. Moffatt was continued on full salary for another six months. Kinark cannot hide behind the dismissal as severing all its responsibilities in respect of the poisoned work environment suffered by Moffatt as an employee. If it could, it would always be easy for employers to minimize their costs in this kind of situation by simply firing the employee.

74In my view, where an employer terminates an employee, with or without cause, in a situation where the employee has been victimized by workplace discrimination, the employer may be liable under s. 41(1)(b) to the extent that its conduct during and after the dismissal increases the losses suffered by the employee as a result of the discrimination. Although Moffatt's dismissal was held not to be a discriminatory act, Kinark may increase its liability if its response to the discriminatory conduct and to the abuse report after his dismissal, made it more difficult for him to obtain employment because of ongoing speculation in the sector about whether he was fired for inappropriate sexual activity.

75This approach is consistent with that applied by the Supreme Court of Canada in Wallace v. United Grain Growers Ltd. [1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701], a wrongful dismissal case which considers the impact of an employer's conduct in terminating an employee. The Court notes that "... for most people, work is one of the defining features of their lives", affecting their sense of identity, self-worth and emotional well-being. In considering termination, Chief Justice Lamer writes (at § 95):

The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection. In recogition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economic and personal) that result from dismissal.

The Court notes that the precise obligations of good faith and fair dealing are incapable of definition, but that at minimum, "employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive".

76In the human rights context, I note that the broad wording of s. 5(1) of the Code does not limit the right to protection against discrimination to persons who are employees. The section provides that "Every person has a right to equal treatment with respect to employment ..." Accordingly, I am persuaded that, under human rights legislation, Kinark had some continuing responsibility to Moffatt, as an ex-employee, to investigate and address the discriminatory rumours after it became aware that Moffatt had alleged that his human rights were being infringed by workplace gossip. I do not need to define the limits of this continuing responsibility except to say that, in this case, when Kinark learned four days after his dismissal that Moffatt had claimed the protection of the Code, in writing, two weeks before, and had been seeking assistance on this issue for months, it was incumbent on Kinark to take some steps to investigate and address the allegation. This is consistent with the decision of the Board in Bryan v. Premark Canada Inc., [1998] O.H.R.B.I.D. No. 18 (QL) [C.H.R.R. NP/98-207].

77I am satisfied that, if Kinark had conducted a proper and open investigation, it would have learned that there was a history of discriminatory gossip against Moffatt at Kinark, and that there were rumours of sexual abuse among front-line staff in the summer of 1991. All of Kinark's head office witnesses testified that if, at any point, they had become aware of such a situation, they would have taken numerous steps to curb the rumours and address the discriminatory impact on Moffatt. Having heard Lewis's evidence, I do not think it likely that Kinark would have considered re-employing Moffatt, but had Kinark openly acknowledged and addressed the discriminatory gossip, including speculation related to the abuse report, it would have assisted Moffatt in recovering emotionally and would have stemmed the flow of damaging rumours outside the organization. I find that it is more likely than not that this kind of response on Kinark's part would have assisted Moffatt in finding new employment more quickly.

78Moffatt did obtain a written letter of reference from Kinark in May 1992. The evidence of several witnesses established that, while this letter would have assisted him in being considered for positions in his field, the norm within the sector was to require specific oral references from one or more former supervisors. Nonetheless, Moffatt was able to obtain a one-year contract position with SOS from January 1993, because Miner at SOS persuaded her supervisor to allow her to hire Moffatt based on her personal knowledge of his abilities. Although Miner described Moffatt as "bright, articulate, gifted in a number of areas", SOS did not renew Moffatt's contract. At least one reason for the non-renewal was that Moffatt was unable to work well with one or two more junior employees who, in Miner's words, "baited him" and appeared to support a false accusation of sexual impropriety in relation to an SOS client. Although Miner testified that she could "speak highly of him in more areas than I would have concerns", she let Moffatt go because, in her words, she "could not have an assistant director who lost his temper and screamed at staff", even when unfairly provoked.

79Moffatt's counsel urged me to find that the SOS contract job was an attempt by Moffatt to mitigate his losses, but not the resumption of his career. Further, he relied on evidence of Quinn to the effect that the kind of blow-up which cost Moffatt the SOS job was almost inevitable in a situation such as this where a dismissed employee had not obtained any respite from the emotional impact of a poisoned work environment. He submitted that it was more likely than not that the false accusation directed at Moffatt at SOS was itself influenced by the rumours of sexual abuse leaking out of Kinark.

80I am satisfied that Kinark's failure, after Moffatt's dismissal, to investigate and address the discriminatory rumours, had a significant impact on his ability to obtain employment. Had Kinark been willing to provide Moffatt with a written reference prior to 1992 and appropriate oral references reflecting his excellent performance reviews, he might have been able to obtain a permanent position, and have brought to an end the continuing impact of the discriminatory rumours on his employment prospects. There are other things that Kinark could have done to ease Moffatt's re-employment, including providing him with more comprehensive outplacement counselling. Appropriate counselling might have assisted him in retaining his position at SOS. However, Kinark's failure to provide appropriate references and better counselling is not itself a basis for awarding compensation under the Code. On the other hand, Kinark's failure to deal with the poisoned work environment after Moffatt's dismissal, its failure to address the rumours and clear up speculation associated with the events leading to the abuse report, is conduct which can increase its liability for losses arising out of the infringement of his rights. Moffatt's employment was not lost because of discrimination, but his ability to regain employment was affected by the discriminatory rumours before his dismissal and by the inaction of Kinark head office in relation to that discrimination after his dismissal.

81Nonetheless, I am not persuaded that Kinark should be held responsible for all of Moffatt's lost earnings between 1991 and 1999. During 1993, when Moffatt was employed at SOS, his income matched his projected income at Kinark. Between 1994 and 1998, Moffatt conducted only a limited job search in the children's mental health field. During much of this period, he earned minimal income working in a private gym. There were various reasons why Moffatt did not continue to actively look for employment in his field, including emotional depression, periods of poor physical health and the necessity of attending this hearing.

82Although I am satisfied that the ongoing effect of the discriminatory rumours would have continued to stand in his way after January 1994, had he continued to actively seek employment in his field, it would be difficult to assess an appropriate amount of monetary compensation in the context of all the other factors, both related and unrelated. More importantly, the impact of the discrimination on his employment income is not sufficiently concrete during the period after 1993, given the fact that, for understandable reasons, he withdrew from an active job search in his own field. In particular, I note that Miner testified that she has not been asked for an employment reference for Moffatt at any time since the end of his employment at SOS in December 1993.

83I am prepared to order compensation for the impact of the discrimination on his ability to obtain employment up until the end of 1994, based on the income which he would have earned at Kinark in the period between his last pay cheque (March 1992) and his first income from SOS (January 1993), which amount was estimated to be approximately $13,800.

Reinstatement

84Counsel for both the Commission and the complainant urged me to consider reinstatement as the only remedy which could place the complainant in the position that he would have been in but for the discrimination. Counsel relied on the decision of the Ontario Court of Appeal in Airport Taxicab (Malton) Assn. v. Piazza(1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 [at D/6348, § 45071], which held that the purpose of a human rights remedy should be to "restore the complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred".

85Kinark submitted, in response, that reinstatement would be outside my remedial authority given my finding that Moffatt did not lose his job because of the discrimination. Kinark also took the position that, in any event, reinstatement would not be a viable alternative. In this respect, counsel relied on the evidence of Lewis to the effect that Kinark's philosophy had changed in the past few years and was out of line with what she described as Moffatt's "laissez faire" philosophy. Moffatt's non-authoritarian attitude towards his foster son was cited by counsel as evidence of a so-called "laissez faire" attitude.

86There are two comments to be made about Kinark's position. First of all, it is not helpful or appropriate for Kinark to assess the viability of reinstatement on the basis of what it knows about Moffatt's style as a foster parent in 1991. There was no evidence that, prior to 1991, Moffatt was considered to have a "laissez faire" attitude towards treatment issues in respect of the children who were Kinark's clients. The treatment models promoted by Moffatt as a Director of Residential Services were all enthusiastically approved by his supervisor at the time and were considered in awarding him a more than excellent performance review only a few months before he was fired.

87Although the sleepover was also cited as an example of a "laissez faire" attitude, I note that the circumstances surrounding that incident, as set out in the December 1998 decision, indicate that it would be unfair to simply blame Moffatt for that event. I found that Oswin had failed to give Moffatt any clear direction on this issue and that Moore had failed to respond to a previous Serious Occurrence Report noting that the CAS had approved another sleepover. Moreover, Kinark's own witness, consulting clinical psychologist Dr. William Eull, testified that such a sleepover would not, in his view, be out of keeping with acceptable treatment philosophy in an appropriate circumstances [sic].

88Nonetheless, Lewis's evidence does indicate that she at least does not have an open mind about Moffatt's suitability for re-employment. This attitude necessarily affects the viability of reinstatement as a possible remedy, quite apart from the jurisdictional issue. By way of contrast, I note that Moffatt, in his testimony, expressed a willingness to work under Lewis in whatever direction the treatment philosophy had taken in his absence.

89I decline to make an order reinstating Moffatt to his permanent position at Kinark or an equivalent position. Even if such an order is within my authority under either s. 41(1)(a) or (b), I am not prepared to order a remedy that is not truly viable. However, I am prepared to make an order requiring Kinark to offer Moffatt a limited-term employment contract at a more junior level. The purpose of this remedy would be to require Kinark to take steps to rehabilitate Moffatt's professional reputation and to restore, to some extent, the high regard which he had earned and which was damaged by the discriminatory rumours.

90I have concluded that this is the most effective remedy which I can order to redress the loss of Moffatt's reputation as a result of the infringement of his rights in 1991. Without this opportunity, it is extremely unlikely that Moffatt will ever be able to obtain employment in the children's mental health services sector. Although there were other steps that Kinark could have taken, especially in 1991 and 1992, which would have helped restore Moffatt's reputation, this is now the only remedy which is at all likely to allow Moffatt to regain the high respect which he enjoyed among his professional colleagues in 1991, before the discriminatory gossip started the chain of events that has destroyed his career.

91Before I make an order setting out the terms and other particulars of this aspect of the remedy, I am going to give the parties an opportunity to negotiate a satisfactory employment arrangement among themselves. I will reconvene the hearing by conference call, if necessary, to set a further hearing day.

Employment References

92Kinark provided Moffatt with a letter of reference in 1992, but has consistently refused to give oral references. Since 1993, Kinark has had a policy of not providing letters of recommendation to ex-employees, except to confirm employment dates and positions held.

93I have concluded that it is appropriate that a remedy be ordered in this area to address the damage done to Moffatt's reputation as a result of the discrimination and the reprisal. I am requiring Kinark to provide Moffatt with a current letter of reference forthwith. The letter can adopt the body of the 1992 letter but must also state that Moffatt received very good performance reviews between 1989 and 1991, including an excellent evaluation in his last year of employment.

94I am also requiring Kinark to respond to requests for oral references in a manner that is consistent with the written reference. Kinark can advise a prospective employer that there were difficulties in the final months of Moffatt's employment which have been the subject of litigation, but Kinark must then also forward a copy of this decision to the person making the inquiry.

Interview Opportunities

95For the reasons set out above, I am also requiring Kinark to interview Moffatt for any supervisory positions in its organization throughout Ontario for a period of two years. Based on the evidence of Lewis, I can only conclude that, without this order, it is very unlikely that a Kinark program director would interview Moffatt for any position in the organization.

Re-Employment Counselling

96In the course of the remedy hearing, Kinark offered to make the counselling services of Colleen Quinn available to the complainant to the amount of $5,000. I will incorporate this into my order. It is my view that Ms. Quinn could assist the parties in developing and implementing an employment contract pursuant to this order.

Distribution of Decision

97I am requiring Kinark to circulate a copy of this decision to staff at all its area offices throughout the province. I am also requiring Kinark to provide a copy of this decision to each member of its Board of Directors. The testimony of Lewis indicated that the Kinark Board may not have fully considered its options for resolving the remedy issues, following my earlier decision, despite the fact that the decision advised the parties that a mediation conference could be scheduled at their convenience.

98If Kinark has not already written to the York Region CAS asking that a copy of the December 1998 decision be placed in the file of Moffatt's foster son, I direct Kinark to do so forthwith.

Human Rights Complaint Procedure

99I am requiring Kinark to develop and implement an internal process for staff to bring forward human rights complaints. A copy of the policy and implementation plan is to be filed with the Human Rights Commission.

Letter of Apology

100I decline to make an order requiring Kinark or Oswin to apologize for its conduct in respect of this complaint. In my view, an ordered apology serves little purpose.

Medical Expenses

101It appears that this issue was not fully addressed in oral submissions. If the Commission or the complainant is requesting an order in this area, brief written submissions should be filed with the Board prior to December 1, 1999. The respondent will have thirty days to respond to any submissions on this issue.

ORDER

102I hereby order Kinark Child and Family Services and Harry Oswin, jointly and severally, to pay to James Lawrence Moffatt the following amounts:

1. $10,000 as compensation for the loss of his right to equal treatment in employment under s. 5(1) of the Human Rights Code, and for his experience of sexual orientation discrimination;

2. $10,000 as compensation for his mental anguish arising out of the reckless infringement of his right under s. 5(1);

3. $6,000 as compensation for his loss of the right under s. 8 of the Human Rights Code to claim the protection of the legislation without reprisal, and for his experience of reprisal;

4. $10,000 as compensation for his mental anguish arising out of the reckless infringement of his right under s. 8; and

5. compensation for the impact of the infringements on his employment income, calculated as the difference between his actual earnings and the amount that he would have earned at Kinark as a continuing employee, for the period from his dismissal to the commencement of new employment in January 1993.

103Pre-judgment interest is to be paid on each of the amounts ordered above, at the applicable average annual rate set in the Courts of Justice Act, R.S.O. 1990, c. C.43. Pre-judgment interest is to be calculated from the date of service of this complaint on the corporate respondent to the date of this order.

104Post-judgment interest, calculated in accordance with the Courts of Justice Act will commence running thirty days after the date of this Order.

105I further order Kinark Child and Family Services to:

6. reimburse the complainant for the cost of counselling services of his choice to assist him in successfully re-entering the employment market, up to the amount of $5,000;

7. provide the complainant with a current letter of reference incorporating the body of its 1992 reference letter, and stating that the complainant consistently received very good performance reviews between 1989 and 1991, including an excellent evaluation in his last year of employment;

8. provide oral employment references to prospective employers as requested, such references to be consistent with the letter of reference and to be accompanied by a copy of this decision if reference is made to difficulties affecting the complainant's performance in the months before his dismissal;

9. offer the complainant the opportunity of an interview for any open supervisory position in its organization for a period of two years from the date of this order;

10. circulate a copy of this decision to staff at all its area offices throughout the province and provide a copy of this decision to all members of its Board of Directors;

11. provide a copy of this decision, and the December 1998 decision, to the York Region Children's Aid Society, with a request that copies be placed in the file of the complainant's foster son;

12. develop and implement an internal human rights complaint procedure, to be filed for review by the Human Rights Commission.

106This proceeding will reconvene on January 13, 2000, by conference call, for the purposes of advising the Board if the parties have been able to negotiate a mutually satisfactory arrangement with respect to an employment contract. If not, a further hearing date will be set for submissions on that matter.

107I remain seized of this matter.