BOARD OF INQUIRY (Human Rights Code)
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended;
AND IN THE MATTER OF the complaint by Bonnie Seguin dated July 28, 1999 alleging discrimination in employment because of breach of settlement and reprisal.
B E T W E E N:
Ontario Human Rights Commission
-and-
Bonnie MacDonald
Complainant
-and-
The Ininew Friendship Centre and Doris Louttit
Respondents
DECISION
Ajudicator: Mary Anne McKellar
Date: July 27, 2001
Board File No.: BI-0365-00
Decision No.: 01-017
Board of Inquiry (Human Rights Code)
505 University Avenue
2nd Floor, Toronto ON M5G 2P3
Phone (416) 314-0004 Toll free 1-800-668-3946 Fax: (416) 314-8743
TTY: (416) 314-2379 TTY Tollfree: 1-800-424-1168
A P P E A R A N C E S
Ontario Human Rights Commission ) Cathryn Pike, Counsel
Bonnie MacDonald, Complainant ) on her own behalf
Ininew Friendship Centre and Doris Louttit, ) Kim Cogar, Counsel
Respondents )
INTRODUCTION
These proceedings arise under the Human Rights Code, R.S.O. 1990, c.H.19, as amended (“the Code”). The Complaint before the Board of Inquiry (“the Board”) is dated July 28, 1999 (“the Second Complaint”). It alleges that the Respondents, Doris Louttit (“Louttit”) and the Ininew Friendship Centre (“the Centre”) are in breach of their written settlement (“the Settlement”) of a previous complaint dated December 2, 1992 (“the First Complaint”).
The First Complaint alleged that the Centre, Louttit, and another Personal Respondent, Howard Restoule, discriminated against the Complainant in respect of her employment at the Centre.
The Second Complaint alleges that Louttit and the Centre breached the Settlement, thereby contravening s. 43 of the Code. It is further alleged that the behaviour of these Respondents during settlement negotiations and subsequently constituted acts of reprisal against the Complainant contrary to s. 8 of the Code.
At the hearing, the Complainant advised the Board that subsequent to signing the Second Complaint she has reverted to using her maiden name, Bonnie MacDonald. The Second Complaint is amended accordingly.
The Second Complaint was referred to the Board for hearing in October, 2000. The hearing was held March 12, 13, 14, 2001 in Timmins, Ontario.
THE ISSUES
There are two issues before the Board. Are the Respondents in breach of the Settlement? Does the Respondents’ conduct in concluding and implementing the Settlement constitute reprisal?
THE DECISION
The Board finds that the Respondents are in breach of the Settlement..
With respect to the reprisal allegations, while events constituting breach of settlement might also constitute reprisal, there is no point to approaching the issues in this fashion unless the available remedies differ. Breach of contract would not normally attract damages for hurt feelings etc., except that Code makes breach of settlement a contravention of the Code for which such damages are available.
THE FACTS
The following recitation of facts is based on the documentary evidence filed and on the testimony of the Complainant and of Louttit.
(i) Louttit and the Centre
The Centre operates in Cochrane Ontario. By Charter of the Province of Ontario dated November 19, 1974, the Centre was established for the following objects:
(a) to develop, expand and preserve Native cultural identity through the institution of education and socially oriented programmes;
(b) to provide informational, communication and interpretive services to resident and transient Cree and Ojibway speaking people in the areas of legal aid, medical appointments and accommodation;
(c) to provide a meeting-place and milieu in which Native people may freely interact and socialize;
(d) to organize and supervise recreational activities for the young people;
(e) to provide the services of a court-worker for Native people;
(f) for the objects aforesaid to employ persons knowledgeable in the fields of counselling, cultural skills and administration of funds necessary for the various programmes of the centre; and
(g) to receive and disburse such funds as are necessary to attain the objects of the Corporation.
The Centre is administered by a Board of Directors. Louttit was one of seven original directors of the Centre named in the Charter. She appears to have been a member of the Board of Directors continuously since 1974. Certainly she was a Board member or attended Board meetings during the period covered by the complaints, as the minutes reflect.
The Charter provides as follows with respect to the duties of Directors:
and it is hereby further ordained and declared that the directors shall serve as such without remuneration, and no director shall directly or indirectly receive any profit from his position as such; provided that a director may be paid reasonable expenses incurred by him in the performance of his duties.
At the time of the First Complaint Louttit was employed by the Centre in the capacity of Programme Director. By the time of the events alleged in the Second Complaint she was the Centre’s Executive Director. Both were paid positions.
Louttit testified that she took direction from the Board of Directors, and managed the Centre on its behalf on a day-to-day basis.
The Centre is a member of the Ontario Federation of Friendship Centres (“the Federation”). The precise nature of the relationship between the Federation and the Centre was not explained to the Board, but from the documentary evidence and the testimony, it appears that the Federation periodically reviews aspects of the Centre’s operations and demands explanations or requests changes. The Federation also appears to play some role in supervising the Centre’s expenditures of programme dollars, and as a conduit in terms of the flow of funds to the Centre and an information resource in advising of potential funding availability.
The Centre has two distinct sources or categories of funding. Both categories of funding cover staff remuneration.
Remuneration for the non-programme staff is met through “core funding” dollars. The non-programme staff is comprised of Louttit; her assistant; the bookkeeper; and the secretary/receptionist. As well, core funding may also cover other non-salary expenses of the Centre with which the Board is not concerned in this hearing.
Salary dollars for programme positions come from various government agencies, either directly, or through the Federation. The Board understands programme positions to refer to all those persons employed by the Centre who work directly with the Native population. These positions might be generically described as caseworker positions. For the most part, the Board understands that programme positions are not funded in perpetuity. Rather, they are funded for a period of time, and the funding is subject to renewal. If the funding is not renewed, the position disappears and the Centre ceases to operate the programme. Notwithstanding the possibility of the cessation of funding, however, the Board heard of no instance in which this occurred. It appears from the totality of the documentary and testamentary evidence that most positions, once created, continued to exist and be filled. A review of the Directors’ minutes from 1992 to the present reveals that old positions were retained and new ones created.
Louttit testified that the Centre periodically receives unsolicited Requests For Proposals (“RFPs”) respecting available funding sources. An RFP would normally come to the attention of the Directors, but not the staff. Upon its receipt, the Directors might direct that it be pursued. Louttit testified that she had no time for preparing responses to RFPs. Most often, it appeared that an individual Director would prepare the response and do the follow-up, and there was an understanding that the person who did all the work to obtain funding for a position would then occupy that position. The minutes reflect that this occurred with respect to an RFP worked on by Andy Gagnon, a Board member and Louttit’s brother.
Louttit emphasized in her testimony that the Centre waited until advised through an RFP that a funding source had opened up and then determined whether the programme position was useful to the Centre clientele such that the money ought to be pursued. Although she disputed that the Centre ever identified the need for a programme position first and then pursued the funds to pay for it, numerous entries in the minutes of the Board of Directors’ meetings belie this assertion.
(ii) Complainant
The Complainant grew up in Cochrane. She received training as an RPN and worked in that capacity at the hospital in Cochrane until she sustained a back injury in 1988. She is in receipt of a workers’ compensation pension in respect of that injury. As part of her rehabilitation programme throught the Workers’ Compensation Board, she attended Northern College and obtained a certificate as a social service worker.
(iii) First Complaint
The Complainant applied for and was working as an intern at the Centre on a four-month placement commencing in March 1992. In April, 1992, she was asked to replace the Family Court Worker while the latter was on sick leave. The First Complaint alleges that her employment was summarily terminated in May 1992 after she assisted a Native female client of the Centre in reporting to the police two sexual assaults perpetrated against her by an employee of the Centre, the Native Inmate Liaison Worker. Two of this employee’s siblings were also employed by the Centre, and another brother was a Director of the Centre and Louttit’s common law spouse.
The Ontario Human Rights Commission (“the Commission”) referred the First Complaint to the Board for hearing. Prior to the commencement of the hearing on the merits, the Board, on consent of the parties, scheduled a mediation conference. Although the matter was not resolved at this conference, the parties reached agreement shortly thereafter. They reduced their agreement to writing in the Settlement. The Complainant and the Respondents Louttit and the Centre signed the Settlement on December 9, 1997. The Commission signed it on December 19, 1997. The third Respondent, Howard Restoule, was not party to the Settlement. In accordance with its usual practice, on being informed that the First Complaint had been settled, the Board, by order dated January 28, 1998, disposed of it “in accordance with the minutes of the settlement”.
(iv) Settlement
The following are the terms and conditions of the Settlement. The Settlement inadvertently contained two paragraphs numbered 5. For ease of reference in this Decision, I have taken the liberty of renumbering the second one 5a.
Immediately upon execution of the agreement by the Respondents and the Complainant, the Corporate Respondent shall provide the Complainant a certified cheque in the amount of $15,000.00 (Fifteen Thousand Dollars) as general damages.
The Corporate Respondent agrees to employ the Complainant as a “Social Worker/Counsellor” for a period of no less than twelve months in duration, commencing on January 5, 1998. The Complainant’s duties and responsibilities as Social Worker/Counsellor shall be as set out in the job description attached hereto as Appendix “A”.
The Corporate Respondent shall pay the Complainant the “3-5 year” rate applicable to the Criminal Court Worker, that is, at $32, 240 per year for the year 1998.
The Corporate Respondent and Complainant agree that the Complainant will, in addition, be employed by the Corporate Respondent for a period of no less than five days commencing December 15, 1997.
The Corporate Respondent and the Personal Respondent Doris Louttit agree to make all reasonable efforts to secure continuing, permanent employment for the Complainant with the Corporate Respondent, or, if such employment is not possible, a contract or series of contracts of employment providing the Complainant with continuing employment with the Corporate Respondent. The Complainant agrees to provide all necessary assistance to the Corporate and Personal Respondent Doris Louttit in applying for funds for such continuing employment or contracts of employment.
5a. The Corporate Respondent and the Personal Respondent Doris Louttit further agree that should a [sic] existing position with the Corporate Respondent compatible with the Complainant’s qualifications or experience become vacant, the Complainant shall be given priority over other internal or external candidates for the position, unless being a Native person is a necessary qualification for the job in question. The Corporate Respondent and the Personal Respondent Doris Louttit agree that such a qualification will not be imposed unreasonably or arbitrarily, or in violation of the Human Rights Code.
The Complainant agrees that this settlement in [sic] full, final and complete settlement of all claims existing up to the date hereof, arising out of the matters giving rise to the complaint against the Respondents.
It is understood and agreed that the Respondents by entering into this agreement do not admit any violation of the Ontario Human Rights Code. It is further understood and agreed that eh Complainant does not retract any of her allegations.
The Respondents and Complainant agree not to disclose the terms of the settlement except as provided for in the Joint Statement attached hereto as Appendix B.
The text of Appendix B reads:
Bonnie Seguin and the Ininew Friendship Centre are pleased to announce that they have reached a settlement of the human right complaint brought by Ms. Seguin against the Centre. The matter has been resolved amicably, and to the satisfaction of both parties. As part of the settlement, Ms. Seguin will be re-commencing work with the Centre in January, 1998.
(v) Complainant’s 1998 Employment Duties at the Centre
The Complainant commenced working at the Centre pursuant to the terms of the Settlement the week before Christmas, 1997. During that first week she helped plan the Centre’s holiday party, prepared gift baskets, and saw a couple of clients. Her client work began in earnest, however, in January 1998.
The Complainant testified that her duties as social worker involved primarily counseling. She counseled persons with serious mental illnesses, those dealing with custody issues with the Childrens’ Aid Services, incest survivors and persons perpetrating or suffering from domestic abuse. She continued to perform these duties throughout 1998, as well as other duties assigned to her from time to time. The Complainant further testified that, particularly with respect to the clients suffering from mental illness, she did not think any of the other Centre staff could have dealt with them. As far as she was aware, no other staff member had any social work experience.
By letter dated January 28, 1998, the Complainant was appointed to fill the position of Healing and Wellness Coordinator on an acting basis for a period of four months from January 6, 1998 to April 30, 1998, while the incumbent, Sandra Carr, was absent due to illness.
The letter appointing the Complainant to the position of Health and Wellness Coordinator advised that a salary of $39,000 per annum attached to it, but that because the incumbent could speak Cree and the Complainant could not, her pay would be based on $36,000 per annum so that $3,000 would remain available to pay for any necessary translation services. The Complainant testified that during her tenure in the position, the services of translators were required two or three times for about one hour per occasion at a rate of $25 per hour.
In the Health and Wellness Coordinator position, the Complainant assisted clients in their interactions with courts, Childrens’ Aid Services, the public health unit, dental clinics, doctors and hospitals. At the time she commenced this work, approximately 12 to 14 active files were transferred to the Complainant from Ms. Carr. The Complainant also continued to work on about seven social work files. By the time she ceased her acting duties, she was involved with about 64 active files. Once Ms. Carr returned to the position, the Complainant assisted her with her duties, and retained control over some files at the request of the clients, and with Louttit’s permission.
Pursuant to terms set out in a letter from the Centre to her dated May 12, 1998. From June 8, 1998 to November 30, 1998, the Complainant occupied the position of Health Outreach Worker while the incumbent was on maternity leave. She had previously filled the same position temporarily during the incumbent’s vacation. This position attracted a salary of $36,000 per annum. It involved assisting clients who needed to travel to attend medical appointments by arranging for their transportation. During the time that she occupied this position, the Complainant required assistance from someone on the Centre’s roster of translators on one occasion only. During this period the Complainant also assisted the Family Court Worker on an ongoing basis with certain client files, especially those involving battered women.
In May and June 1998, the Complainant filled in on a few occasions for the Criminal Court Worker and the Native Inmate Liaison Officer, but this was not a formal arrangement. Throughout the year, the Complainant provided occasional assistance to the Life-Long Care Worker, particularly in the area of understanding medical terminology. As well, she assisted Louttit from time to time with the completion of various forms and the provision of information requested by the Federation. Finally, the Complainant frequently covered for the Secretary/Receptionist during lunch.
Other than while she was in the Health and Wellness Coordinator position, or acting as Health Outreach Worker, the Complainant did not require the assistance of translators in dealing with clients. Of the eight to ten caseworkers at the Centre who dealt with clients, Ms. Carr was the only one who spoke Cree. They all followed the same practice as the Complainant whenever translation services were required: they contacted one of the people named on a list of translators maintained by the Centre.
(vi) Complainant’s Performance In 1998
The Complainant testified that she worked hard during 1998 and opened many new client files and served those clients so effectively that they often asked her to retain control of their files even after she assumed duties associated with a different programme.
While the Complainant was in the position of Health and Wellness Coordinator in May 1998, a representative from the Federation, Carol Matthews, came to evaluate the Centre’s delivery of its programmes. The Complainant met once with Matthews, Louttit and Carr, and a second time with Matthews and Carr only. Matthews expressed pleasure at the Complainant’s performance, but when she asked her salary, was concerned to learn that her salary had been reduced without prior Federation approval. In the Response to the Second Complaint, this incident was characterized as an example of the Complainant “overstepping the lines of authority”. Nothing, however, was said to the Complainant about it at the time.
Louttit also had only positive things to say about the Complainant’s performance during 1998. She agreed with the Commission’s characterization of the Complainant as an “excellent worker”. Although she did not agree with the Commission’s suggestion that the Complainant’s caseload exceeded that of other workers, on the basis of a review of the minutes and the uncontradicted evidence of the Complainant, the Board concludes this to have been the case. Additionally, the Board notes that the minutes on occasion reflect the Centre’s Board of Directors’ dissatisfaction with aspects of various employees’ performance. There are no entries indicating dissatisfaction with the Complainant’s performance. Louttit and the Complainant both testified that they had a good working relationship during 1998.
Due to her pre-existing back injury, the Complainant was not able to do any heavy lifting. Her activities at the summer Powwow aggravated her condition and she required a couple of days off. These days were granted without comment. The position of Health Outreach Worker involved after-school involvement with the Snowy Owls group. Louttit willingly accommodated the Complainant’s request not to perform this aspect of the job due to certain restrictions on her commuting arrangements that prevented her from working late hours. Nevertheless, in the Response to the Second Complaint mentions this in the context of the Complainant “not fulfilling her duties”.
The Complainant testified that she got along well with her co-workers, except for some incidents involving comments of a sexual nature which she found offensive. She testified that there was a lot of talk of a sexual nature at the Centre and that she was very embarrassed to be singled out in front of clients and made the butt of crude sexual comments. This incident prompted her to characterize the environment at the Centre as constituting sexual harassment and to complain in writing to Louttit about it. The Complainant also testified that she obtained copies of the City of Toronto’s guidelines on sexual harassment which she posted in the Centre until Louttit asked her to remove them on the grounds that they were offensive to other employees. It was suggested that the guidelines themselves were not as offensive to the employees as the fact that the Complainant had chosen to post them, but in any event, both the Complainant and Louttit agreed that, aside from this issue with the guidelines, the latter had dealt with the concerns about the workplace environment in a satisfactory manner.
(vii) Attempts To Retain the Complainant
Pursuant to Paragraph 5 of the Settlement, the Respondents were obliged to make attempts to secure continuing permanent employment for the Complainant or a series of contracts that would provide her with continuing employment.
There was never any mention during 1998 of providing the Complainant with full-time permanent employment at the Centre. The Complainant could recall being approached by Louttit on only two occasions with contract proposals. The first was a call for applications for funding in the amount of $5000 for a one-day workshop. After realizing that the funding was only available for one day, Louttit told her not to bother pursuing it. The second was a request for proposals for funding counselling with respect to victims of residential schools. In June 1998 Louttit asked the Complainant to work on this proposal by writing to the funders in Ottawa. She did so, and directed that the reply should be sent to Louttit’s attention. Under this scheme, funds were available for a one-year contract with the possibility of renewal. Although the Complainant asked Louttit about the progress on this initiative from time to time, she heard no more about until a few days before the 1998 Christmas break. At this time, Louttit provided her with paperwork to complete to secure the funds, and requested that she do so over the two-week break before the Centre re-opened in January, 1999. A couple of days later, however, Louttit asked for the paperwork back and requested that it be filed as there was too much red tape involved.
In their August 23, 1999 Response to the Second Complaint that the Respondents filed with the Commission, they stated:
Ms. Seguin was provided with two proposals to work on, a workshop development project and the other a project dealing with the abused victims of the residential syndrome. Had the latter been developed, Ms. Seguin would have created a position for herself in her field of social counselor. All reasonable efforts would have been made to secure continuing, permanent employment for Ms. Seguin, but there were no call for proposals or employment other than these two at that time. Furthermore, Ms. Seguin had agreed to provide all necessary assistance to the Ininew Friendship Centre in applying for funds for continuing employment and during Ms. Seguin’s year with the Centre, she made no attempt to pursue any avenues of employment in her field of work.
The Complainant was not advised of any other funding proposals that were being pursued that would have permitted her continued employment at the Centre. Certainly, she was not asked to work on any others. It was the Complainant’s evidence that RFP’s would not normally come to the attention of the staff in the first instance. Instead, they would come to the attention of Louttit and through her to the Board of Directors. Louttit did not disagree that this was what usually occurred.
The Complainant further testified that no one at the Centre ever referred to the possibility of her being retained there past December, 1999. Indeed, to the contrary, she recalled that the assumption at staff meetings was always that she would be leaving at that time. When Carol Matthews from the Federation visited in June 1998, the Complainant recalled Louttit advising her that the Complainant would not be at the Centre past December 1999. The Complainant spoke to the Centre’s President, Tom Kioke, in the kitchen at the Christmas party in 1999 and expressed concern about her imminent loss of employment. Although he assured something would come up in the New Year, he also appeared to be unaware of the commitments made by the Centre in the Settlement, as he acknowledged never having read that document.
The Complainant recalled that at least two job openings came up at the Centre in 1998, but that she was not invited to apply for them, or indeed even made aware of them until they had already been filled. One opening occurred when sufficient funding became available to permit the position of Assistant Family Support Worker to be filled on a full-time rather than a part-time basis. The part-time incumbent merely assumed the full-time duties. A new position of Employment Counsellor was created in June or July of 1998 and filled by Andy Gagnon, a member of the Board of Directors. Louttit testified that Gagnon had done all the work to obtain the funding for this position.
Prior to the conclusion of her one-year contract, the Complainant wrote to the Centre on December 14, 1999, asking that the letter be considered as her formal application for any position that became vacant. In particular, she mentioned the position of Health and Wellness Coordinator, as this was a position she had occupied for some time and in which she had performed well, and because she knew the incumbent Sandra Carr would be retiring in 1999. By letter dated December 16, 1998, Louttit responded, advising that she had placed the Complainant’s letter before the Centre’s Board of Directors, and had informed them that the Complainant had performed well in the Health And Wellness Coordinator’s position during Carr’s absence. She also added the following:
I said that you worked well in both capacities with exception to the language barrier with some of the Elders. I was asked why you had not worked with the Snowy Owls [after-school programme] and I said that your hours were not flexible because you had to pick up Scott after work.
Other than that, the directors stated that if any positions become vacant or if any new programs occur, you are welcome to apply for the job using the usual process.
(viii) Enforcing the Settlement
The Complainant contacted the Commission towards the end of 1998 or the beginning of 1999 to express her concerns that the Settlement was not being complied with insofar as her continued employment at the Centre past 1998 was concerned. By letters dated January 11, 1999, Commission counsel wrote to Ronald Boivin, who was then counsel for the Respondents, indicating that the Commission took the position that the Respondents were in breach of the Settlement. This letter is worth repeating in full, as it clearly put the Respondents on very early notice of the allegations in the Second Complaint:
As I indicated to you today, it appears that your client is in breach of its agreement with the Commission and Ms. MacDonald. I am advised by Ms. MacDonald of the following.
Ms. MacDonald was at no time given any assistance in applying for funds to continue her work at the Friendship Centre. Ms. Louttit asked her to work on a couple of proposals, one of which was for the maximum amount of $5,000.oo to host a workshop. The other was to apply for funds to assist abused victims of Residential Schools. These funds are not available until some time after June 1999.
To her knowledge the Friendship Centre has not applied for funding to continue her work at the Centre.
I am advised that your new Board President, Mr. Tom Kioke, told Ms. MacDonald on her last day at work that she did not need to worry, and that something would be coming up in the New Year.
I am further advised that the Healing and Wellness Coordinator position held by Ms. MacDonald from January 1998 until May 1, 1998 did not require that she be a Native person. Furthermore, during that time, $3,000.00 of her salary was held back for the use of a translator, if required. Ms. MacDonald believes that she required a translator only two or three times for a very short period of time and that approximately $100.00 of the $3,000.00 was used.
The Health Outreach position that Ms. MacDonald held from June 1998 until November 1998 order [sic] required a translator twice.
Ms. MacDonald reports that there are only two or three elderly clients who prefer to speak in their own tongue, and that out of 11 staff at the Centre only one elderly staff member, the Healing and Wellness Coordinator (64 years of age) speaks Cree. Accordingly, speaking Cree does not appear to be a requirement for any of the positions. In any case, all of the staff have a list of community members who are willing to act as translators if needed.
During the time of Ms. MacDonalds’s employment one other position did arise – also a contract position – for an Employment Counselor. Ms. MacDonald is not aware of the requirements of the positions. It was not posted internally, nor advertised externally. Ms. Louttit’s brother was hired for the position.
The Assistant Family Support Worker who had been working part-time for three years, was hired on full-time in April 1998. Ms. MacDonald was not offered an opportunity to compete for this position.
In conclusion, it does appear that your client is in breach of the agreement. It is my hope that the parties will be able to deal with this matter among themselves, and I look forward to hearing from you.
By letter dated January 29, 1999, the Commission requested that Boivin reply to the above letter. He finally did so by letter dated April 26, 1999, but only after the Commission had made inquiries of the Board about having the matter listed for hearing. Boivin’s position in his April 26, 1999 letter was that the Settlement had been fully complied with.
The Second Complaint was signed on July 28, 1999.
By letter dated August 23, 1999, the Respondents filed with the Commission their Response to the Second Complaint, in which they set out their understanding of how the Complainant was to be treated in respect of available positions at the Centre post-1998:
According to policy, any position must be presented to the Centre’s Personnel Committee for interviews and then to the Board for approval. Ms. Louttit had no authority to say that Ms. Seguin is to be given priority over other candidates, especially if the position is to be filled by an Aboriginal person.
In her testimony, Louttit confirmed her understanding that she was to follow the above policy. She also indicated that the Centre’s counsel during the negotiations of the Settlement had been instructed to amend its terms to reflect this policy. It was not amended in accordance with the instructions of the Centre’s President, Elwood Hall, but Louttit and Hall nevertheless signed the Settlement.
(ix) Job Opportunities at the Centre in 1999 and Thereafter
Vacant positions at the Centre did open up in 1999 and thereafter.
A job for a youth worker came up in February 1999. It was awarded to a Native woman who did not speak Cree. The Complainant was not informed of the availability of this position, nor was she invited to apply for it.
By letter dated May 19, 1999, Louttit wrote to the Complainant enclosing postings for a Youth Project Coordinator and a Youth Assistant Coordinator, to be filled by ten-month contract. The positing expressed a preference for candidates of Aboriginal ancestry, and also indicated that fluency in Cree and or Ojibway language would be an asset. These were not qualifications that the Complainant could satisfy. Louttit further advised the Complainant:
If you are interested, please submit your application.
The Complainant applied for the position of Youth Project Coordinator. She was invited to an interview on the day that they were held. She testified that no one on the interview panel introduced themselves, nor did any of them smile during the interview. The Complainant did not get the job. She was so advised in a letter dated June 15, 1999. In her testimony, Louttit suggested that this programme involved a lot of camping and that the Complainant might not have been a suitable candidate because camping would involve lifting that might aggravate her back injury. The August 23, 1999 Response to the Second Complaint also reflects this. The Board notes that the Respondents knew about her back injury when they invited her to apply for the position. The Minutes of the Centre’s Board meeting held June 14, 1999 indicate that the successful candidate for this position was Frances Hookimaw. The Board heard no evidence respecting her ancestry or her ability to speak Cree.
In August 1999, the Centre advertised in a local newspaper for a Life Long Care/Assistant Care Support Worker. Two of the specified qualifications for this position stated:
Fluency in the Cree language is a requirement;
Reading and writing in Cree syllabics is an asset.
The Complainant applied for but did not obtain this position. She was never advised of the reasons for her failure to obtain the position. A member of the Board executive, Susan Solomon, was the successful candidate. She can speak Cree.
On November 10, 1999, the Centre advertised in the local Cochrane newspaper for an Aboriginal Healing and Wellness Coordinator. This vacancy came about as a result of Sandra Carr’s retirement. The Complainant was not informed of it in advance of the advertisement’s appearance. One of the specified qualifications for this job stated:
- Knowledge of Aboriginal language and culture(s) is a requirement.
The Complainant did not recall these qualifications having been specified in the job description for this position at the time she filled it. The Complainant applied for but did not obtain this position. It was awarded to Josie Chrysler, the President of the Centre. She does speak Cree.
Numerous positions were either created, or renewed, or became vacant and were filled by new hires during 2000. The Complainant was not contacted about any of these positions. They illustrate that the requirement to speak Cree was waived in some circumstances. The Centre created the position of Aboriginal Pre-natal Nutritional Program Worker for the period of April 1, 2000 until March 31, 2003, and awarded it to a candidate who does not speak Cree. An employee who had been with the Centre for 3-5 years in the capacity of Family Support Worker and who does not speak Cree was renewed for a three-year period in 2000. The position of Life-Long Care Worker became vacant and was filled in April 2000 by a person who spoke Cree. The Employment Counselor position formerly held by Andy Gagnon a non-Cree speaker, was advertised in May 2000, with the qualifications specifying that the ability to speak Cree was an asset. A similar qualification was specified for the position of the Commanda Complex Manager, but the successful candidate did not speak Cree, nor was it even a specified qualification for the Receptionist at that Complex. Similarly, the person who obtained the position of Partnership Development Worker could not speak Cree, nor could the person who replaced the Family Support Assistant during a maternity leave.
On the basis of the foregoing, the Board cannot conclude that the possession of Cree language skills was a bona fide requirement for positions at the Centre. Although Louttit testified that the Board of Directors decided to make this a job requirement in mid-1999, this criterion was not a uniformly specified pre-requisite for a job, and many individuals who could not speak Cree were interviewed and indeed hired. Furthermore, the Centre’s commitment to having its personnel able to communicate in Cree is suspect having regard to the fact that it did not itself offer Cree lessons to employees, nor did it offer them any encouragement to acquire those skills elsewhere. In fact, the minutes reveal that opportunities to pursue such initiatives were proposed and rejected from time-to-time. This evidence supports the Board drawing the inference suggested by the Commission: that the requirement for Cree language skills for various positions was imposed for the purpose of disqualifying the Complainant from obtaining those positions.
(x) Discussions of the Settlement
In the course of Carol Matthews’ visit to the Centre in May 1998, the issue of how the Complainant came to be working at the Centre came up. The Complainant testified that she indicated that she was employed as the result of the Settlement, but did that she did not provide any details of the terms of the Settlement or of the allegations contained in the First Complaint. The Complainant’s version of these events remained uncontradicted. Notwithstanding that the August 23, 1999 Response to the Second Complaint alleged that the Complainant breached the confidentiality clause of the Settlement, the Board does not find this allegation to be made out on the evidence.
The Complainant testified that one of her co-workers at the Centre, told her she knew all about the terms of the Settlement, including the amount of damages, because she had overheard discussions about it between her boyfriend, who was on the Centre’s Board of Directors, and the Centre’s President, Elwood Hall. Not only was this evidence hearsay, but the circumstances in which the information was “overheard” were not before the Board. Certainly, there would be nothing improper in two members of the Centre’s Board of Directors discussing the Settlement.
(xi) Mitigation Efforts
The Commission took the position that the measure of the damages in the Second Complaint ought to be reflective of what the Complainant had given up by agreeing to the Settlement: the right to litigate her dismissal in the First Complaint and potentially be awarded a substantial amount in respect of loss wages flowing from that dismissal. In view of the fact that the Commission would be making arguments in respect of this position, the Board heard evidence respecting the Complainant’s efforts to obtain alternate employment during both the period from March 1992 until December 1997, and the period after January 1, 1998.
From 1992-1997, the Complainant kept a list of the organizations to which she applied for employment. She estimated that she probably made about 100 job applications. Initially, she confined her search to jobs that were within a one-hour to one and one-half hour commute from her home in Iroquois Falls. Subsequently, she looked for jobs in more distant locations, and considered moving to Toronto or Sudbury. When the Complainant met her second husband she determined to stay in the North, but expanded her job search to include positions within a three-hour drive from Iroquois Falls.
Although the Complainant’s preference was to continue working in the area of counseling, social services or health, she also applied for clerical positions, for a position as a teaching assistant, and for various retail positions. She attributed her difficulties finding work to the wide media attention that the First Complaint had attracted. Although the Complainant did not initiate contact with the media, she did cooperate with them when she was contacted. The Complainant was interviewed on both CBC Radio and Radio Canada. As well, articles about the First Complaint appeared in all the Northern newspapers and in the Toronto Star.
With respect to the time period covered by the second Complaint, the Complainant commenced looking for work in August 1998 while she was still employed at the Centre. She filed with the Board a list of 23 positions applied for, again primarily in the area of social services. At this time she was suffering from depression and was under a physician’s care. Because of the medication she was taking, the Complainant did not wish to drive far to work and concentrated her search on the area around Iroquois Falls.
In the period between the First Complaint and her return to work at the Centre pursuant to the Settlement, the Complainant worked for 7-8 months at an agency that operated out of Timmins with satellite offices in Cochrane, Matheson and Iroquois Falls and which provided employment for persons with mental health problems. Her employment there ceased when funding ran out.
For about two months in 1992 –93, the Complainant obtained weekend on-call work at a detoxification center in Smooth Rock. She was required to work 12-hour shifts, some of them at night, and found this difficult due to her medication. The Complainant quit this job in concern for her safety after she drove her car off the road a couple of times while returning from work.
The Complainant also worked for six months or so at a drug treatment center, the Jubilee Center. This job also involved weekend work and 12-hour shifts. The Complainant was still on medication at this time and testified that she quit because she could not do the night shifts.
Following the Second Complaint, the Complainant obtained some work supply teaching. She estimated that it probably amounted to one day per week. In the 1999-2000 school year she had a few days of work, and the school wanted her back, but she testified that she did not accept the offer because she lacked the energy to deal with “these problem kids”.
The Complainant was not working at the time of the hearing.
(xii) Effect of the Alleged Breach of the Settlement
The Complainant testified that her health has been detrimentally affected by the circumstances surrounding the Second Complaint. She has been admitted to the hospital with chest pains on several occasions since 1998, but each time her physical symptoms have been diagnosed as attributable to stress and anxiety.
The Commission filed with the Board two letters from medical practitioners who have been treating the Complainant.
Her family physician, Dr. Boyle, has been treating her for depression since 1993. Her condition improved for a time after she was treated with anti-depressants, but then deteriorated again in January 1997. Dr. Boyle’s summary diagnosis is:
This lady suffers from migraine, generalized anxiety disorder and depression for the past several years. All of these conditions have been aggravated by the stress she has been under over the past several years.
The Complainant is also in the care of a psychiatrist, Dr. Boucher. Dr. Boucher first saw the Complainant on September 16, 1998, and on about twenty more occasions over the next two and one-half years. The pertinent parts of Dr. Boucher’s report read as follows:
Bonnie first consulted me for symptoms of anxiety with secondary depression. At that point, Bonnie explained to me the many stressors that were happening in her life. The major stressor causing these anxiety and secondary depression symptoms was a legal court case in which Bonnie was opposed to a Friendship Home. Bonnie had to make a complaint through Human Rights. Since then Bonnie has felt the subject of discrimination and isolation. She has, since then, suffered from sever stressors. She is demonstrating not only sever anxiety, but also insomnia, lack of interest, lack of energy, poor concentration and short memory problems.
Bonnie also suffers form a medical condition called Bruxism. This condition occurs mostly during the night and causes teeth clenching, as well as jaw muscle tension and in Bonnie’s case, headaches. These symptoms are aggravated by external stressors and environmental stressors such as legal procedures. This has led Bonnie to purchase special dental apparatus, as well as has forced her to take muscle relaxants. I have provided Bonnie with prescriptions for muscle relaxants fro her Bruxism, as well as low doses of Prozac and Clonazepam for the condition of generalized anxiety disorder with secondary depression.
Apart from any effect that the alleged breach of the Settlement may have had on her physical and emotional health, the loss of income occasioned by the cessation of her employment at the Centre caused financial difficulties for the Complainant. She and her husband signed an Agreement of Purchase and Sale for a new home after the Settlement was concluded. But following her cessation of employment they were forced to sell it and suffered a $35,000.00 loss. The Complainant was also unable to provide financial assistance to her children in respect of post-secondary schooling and wedding arrangements.
THE PARTIES’ POSITIONS
(i) Liability
The Complainant and the Commission took the position that the Respondents were in breach of Paragraphs 5 and 5a of the Settlement. As well, the Commission urged me to find that the Respondents entered into the Settlement in bad faith, and never intended to fully comply with it. This conduct, the Commission submitted, amounted to a reprisal. Additionally, the Commission submitted, albeit more strenuously in its opening than in its closing remarks, that the Respondents’ treatment of the Complainant during 1998 amounted to reprisal.
The Respondents specifically deny that they are in breach of the Settlement and assert that it has been fully complied with. They rely on the fact that the Centre depends on outside agencies for programme funding, and that no new funding sources were identified for the 1999 year, as justifying the Complainant’s non-retention subsequent to the end of December 1998. They further submit that none of the job qualifications in the positions advertised after 1999 were imposed arbitrarily, including the requirement to speak Cree. Respondents’ counsel suggested that the Complainant did not fulfill her part of the Settlement because she only asked if funds were available, and did not actively pursue funding and create her own job as did Andy Gagnon. The Respondents further suggested that the invitation to the Complainant to apply for the Youth Coordinator position amounted to giving her priority in accordance with the Settlement. In her written submission to the Board dated May 4, 2001, counsel for the Respondents asserts that the Commission acted precipitously in raising the matter of the breach of the Settlement in the second week of January 1999.
With respect to the reprisal allegations, the Respondents took the position that no aspect of the Complainant’s treatment during 1998 constituted reprisal by the Respondents. Counsel pointed to the evidence of both the Complainant and Louttit pertaining to their working relationship and the accommodation of the Complainant’s physical restrictions and inability to work late.
(ii) Remedy
The Commission argued that damages should flow for both the breach of the Settlement, and the reprisal.
In respect of the alleged breach of the Settlement the Commission sought to have the Board order the Respondents, jointly and severally, to pay to the Complainant $15,000 in general damages and $10,000 for damages in respect of mental anguish, or alternatively to order those amounts to be paid by the Centre. In respect of the alleged reprisal, the Commission sought to have the Board order the Respondents, jointly and severally, to pay to the Complainant $7,500 in general damages, and further sought to have the Board order the Centre to pay to the Complainant $7,500 in respect of damages for mental anguish.
The Commission further submitted that the Board had three remedial options in respect of the breach of settlement. It could find that a fundamental breach of the Settlement had occurred such that it was null and void and the First Complaint could be litigated. It could order specific performance of the Settlement, which would entail reinstatement of the Complainant to a position at the Centre. It could award damages for the breach of settlement. The Commission submitted that in the circumstances of this case, the last approach was the most appropriate. The Commission noted that the damages awarded could be based on the Complainant’s reliance interest or on her expectation interest. The Commission submitted that as a result of her entering into the Settlement, the Complainant lost the opportunity to litigate the First Complaint and seek full redress for the 4 ½ years of unemployment that she experienced following it. Knowing the consequences to the Complainant of filing the First Complaint, the Respondents should have been fully aware that the Complainant would be unable to find employment in Northern Ontario. The Commission also submitted that had the Settlement been complied with there was no reason to think that the Complainant could not have worked at the Centre for another 10 or 15 years. In all the circumstances, the Commission sought loss wages in respect of five year’s salary for the Complainant. It quantified these amounts in submissions dated March 29, 2001.
Finally, the Commission requested that the Board order a public interest remedy. It requested that the Board require the Centre to engage a consultant to advise it on human rights matters, and that it be required to consult with the Commission on the selection of such consultant.
The Respondents submitted that no damages of any kind should be awarded. In their submissions of May 4, 2001, they appear to take the position that, in the event the Board finds them in breach of the Settlement, the appropriate remedy would be for the Board to order specific performance of the Settlement:
In their submissions, the Commission argues that the remedy of specific performance is too hazardous for the Complainant to pursue given the likelihood of further reprisal. As it is the Respondents’ position that there has not been reprisal, the provision of on-going work is not too hazardous. For the Commission to indicate that the door has been closed on this remedy by the Respondents is not accurate. At the hearing, the evidence on behalf of both the Respondents and the Complainant indicated that the work environment and relationship between the parties was above acceptable. Of course, any decision with respect to on-going work depends on funding received from third parties. It is the Respondents’ position that this would be the most appropriate remedy which would provide benefits to all parties.
The Respondents also submit that this is “not a case where a public interest remedy could be ordered”.
ANALYSIS
(i) Code Provisions
The following provisions of the Code are pertinent to the Board’s decision making.
s. 8 Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
s. 9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
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 willfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.
- Where a settlement of a complaint is agreed to in writing, signed by the parties and approved by the Commission, the settlement is binding upon the parties, and a breach of the settlement is grounds for a complaint under section 32, and this Part applies to the complaint in the same manner as if the breach of the settlement were an infringement of a right under this Act.
(ii) Scope of the Decision
All the parties were in agreement with the following propositions which circumscribe the ambit of the Board’s inquiry.
Where a complaint alleges reprisal for the filing of an earlier complaint, the success of the reprisal complaint is not dependant on a finding that the earlier complaint was well-founded. (See Love Kumar Sharma v. Yellow Cab Company (1983), 1983 CanLII 4704 (BC HRT), 4 C.H.R.R. D/1432 (B.C. Bd. Inq.), at Paragraph 12334, and Riemer v York Regional Police, [1995] O.H.R.B.I.D. No.17.)
Where a complaint alleges a breach of a settlement of an earlier complaint, the Board undertakes no inquiry into the merits of the first complaint, but is instead limited to consideration of whether there has in fact been a breach of the settlement. (See Bergman v. 474134 Ontario Ltd. (c.o.b. Westwind Inn),[1999] O.H.R.B.I.D. No.10.)
Consequently, the only issues before the Board are whether the Respondents took reprisal actions against the Complainant as a consequence of her having made the First Complaint, and whether they are in breach of the Settlement. The Board will deal with the latter issue first.
(iii) Breach of the Settlement
The Complainant and the Commission allege that the Respondents are in breach of their obligations in both Paragraphs 5 and 5a of the Settlement.
Paragraph 5 reads:
- The Corporate Respondent and the Personal Respondent Doris Louttit agree to make all reasonable efforts to secure continuing, permanent employment for the Complainant with the Corporate Respondent, or, if such employment is not possible, a contract or series of contracts of employment providing the Complainant with continuing employment with the Corporate Respondent. The Complainant agrees to provide all necessary assistance to the Corporate and Personal Respondent Doris Louttit in applying for funds for such continuing employment or contracts of employment.
Notwithstanding that they undertook to “make all reasonable efforts to secure” continuing employment for the Complainant, there is no evidence that either of the Respondents made any efforts at all. Simply waiting passively for some government agency to offer them funds does not satisfy their undertaking. There was evidence to indicate that the Centre and personnel associated with it had actively pursued such funding in the past, and this paragraph of the agreement obliged them to do the same. Furthermore, when the opportunity to pursue funding for the residential schools counselor came in, Louttit, in her capacity as Executive Director of the Centre, chose not to pursue it. At the hearing she attempted to distance herself from the statement in the August 23, 1999 Response to the Second Complaint that pursuit of this opportunity would have led to a job for the Complainant. In terms of the obligations contained in Paragraph 5, however, the Board need not determine whether it would have led to a job, the fact is simply that the failure to pursue it is incompatible with the obligation to make best efforts to secure continuing employment for the Complainant.
Louttit repeatedly asserted in her evidence, and Respondents’ counsel asserted in argument, that the Centre had no independent source of funding, and could only make positions available to the extent that funds came in. The Board has two comments on this point. First, the Board notes that Settlement does not qualify the efforts expected of the Respondents in any way beyond the use of the word “reasonable” even though it would clearly have been open to the parties to make the offer of continuing employment for the Complainant contingent on the receipt of funding. Second, the Board notes that nothing prevents the Centre from paying salaries out of its core funding. Indeed, during those periods of her 1998 employment when the Complainant was not in an acting position, that was the source of her salary, and given that the availability of those acting positions may not have been known at the time the Settlement was executed, the Respondents must have contemplated paying her from that source for at least the entire 1998 year.
The Board therefore finds that the Respondents were in breach of the obligations they undertook in Paragraph 5 of the Settlement.
Paragraph 5a of the Settlement reads:
5a. The Corporate Respondent and the Personal Respondent Doris Louttit further agree that should a [sic] existing position with the Corporate Respondent compatible with the Complainant’s qualifications or experience become vacant, the Complainant shall be given priority over other internal or external candidates for the position, unless being a Native person is a necessary qualification for the job in question. The Corporate Respondent and the Personal Respondent Doris Louttit agree that such a qualification will not be imposed unreasonably or arbitrarily, or in violation of the Human Rights Code.
The obligations in this Paragraph pertain to existing positions at the Centre that become vacant. During the course of the Complainant’s 1998 employment, there do not appear to have been any vacancies in existing positions. In 1999 and thereafter, however, several positions which the Complainant had previously performed or assisted in the performance of, and therefore arguably had the qualifications to fill, became vacant. They included Healing and Wellness Coordinator, and Life-Long Care Support Worker. Not only was the Complainant not “given priority” over other candidates, she was not even contacted about these positions in advance of them being advertised in the local newspaper. The terms of Paragraph 5a are clear: the Complainant was to be given the job unless being a Native person was a necessary qualification. The advertised positions set out the qualifications for the job. In neither case was Native ancestry a specified qualification. Although speaking Cree was a specified qualification for the positions, the Board did not hear any evidence that this had been a specified qualification prior to this posting. All the evidence the Board heard suggested that it was a requirement newly-imposed by the Board in mid-1999. The fact that the previous incumbent of the Healing and Wellness Coordinator position happened to be able to speak Cree does not mean the ability to do so was a job requirement. In any event, the ability to speak Cree is not a basis on which the Settlement excuses the Respondents from giving the Complainant priority where vacancies occur.
The Board therefore finds that the Respondents were in breach of the obligations they undertook in Paragraph 5a of the Settlement.
(iv) Reprisal
The Commission and Complainant allege that the Respondents entered into the Settlement in bad faith and their doing so constitutes reprisal under the Code. They also allege that the Complainant was subject to reprisal during the course of her employment in 1998.
Dealing with the second aspect of the reprisal allegations first, the Board does not find that the Complainant was subject to reprisal during 1998. Both the Complainant and Louttit testified that they had a pleasant working relationship, with only one incident of tension, details of which were not provided to the Board. There was no suggestion that the Complainant was not accommodated in respect of work complying with her physical restrictions, and in respect of her inability to work with the Snowy Owl group. There was an insufficient evidentiary basis on which the Board might conclude that the difficulty over the off-colour workplace joking was at all connected to the First Complaint. The Complainant herself did not suggest that it was, indeed she mentioned that similar joking had occurred in 1992 before she filed the First Complaint.
The Board is prepared to consider that entering into a Settlement one never intended to observe could amount to reprisal under the Code. There was evidence led before it from which the Board might conclude that the Respondents did not intend to honour the Settlement, particularly evidence suggesting that their former counsel was instructed, but failed to, remove or amend certain provisions. Louttit’s evidence, however, was not that the Respondents did not intend to honour the Settlement, but rather that they interpreted it differently than did the Commission and the Complainants, and they interpreted it as requiring them to do no more than follow their usual practices with respect to hiring and soliciting funds. In this, they were wrong, as the Board has already noted.
In the circumstances of this case, the Board finds that it is not necessary to determine whether the Respondents entered into the Settlement in bad faith, and whether that constitutes reprisal, because, in the Board’s view, and notwithstanding the submissions of the Commission, such a finding would have no impact on its remedial orders.
(v) Remedy
Damages are awarded under the Code to redress a complainant’s injury, not to punish the respondent.
The mere fact that a respondent’s conduct may constitute a violation of more than one section of the Code does not mean that an award of damages will be made in respect of each separate head of liability. Rather, the question is whether the complainant has suffered more than one distinct injury which must be redressed. (See Moffat v. Kinark Child and Family Services (No.5) (1999), 1999 CanLII 35166 (ON HRT), 36 C.H.R.R. D/346, at paragraphs 25 and 26.)
The Board has dismissed the reprisal allegations to the extent that they relate to the Complainant’s treatment while working at the Centre in 1998. The other aspect of her reprisal allegations relates to the attitude with which the Respondents entered into the Settlement. In the Board’s view, the Complainant suffered an injury because the Settlement was not complied with, and her damages should be assessed on that basis. The reason the Settlement was not complied with has no impact on that assessment.
A contravention of a settlement constitutes a contravention of the Code, regardless of whether that settlement was reached before or after the Complaint was referred to the Board, so long as the prerequisites of s. 43 have been met. (See Ontario (Human Rights Commission) v. Ontario [2000] O.J. No.2419 (Ont. Superior Ct.)) There was no suggestion here that the s. 43 prerequisites had not been satisfied, and the Board finds as a fact that they have been.
A contravention of the Code presumptively attracts an award of general damages in respect of the Complainant’s loss of the right to be free from discrimination. There is no limit on the damages that may be awarded. (See The Shelter Corporation v. Ontario (Human Rights Commission) 2001 CanLII 28414 (ON SCDC), [2001] O.J. No.297 (Div.Ct)) and Metsala v. Falconbridge Ltd., [2001] O.H.R.B.I.D. No. 5.)
The Board finds that an appropriate award of general damages in the circumstances of this case is $5000.
Damages of up to $10,000 may also be awarded in respect of mental anguish suffered by the Complainant as a result of the infringement, where the infringement has been engaged in willfully or recklessly.
The Board is satisfied on the evidence before it that the Complainant has suffered mental anguish. The Board is equally satisfied that the Respondents have infringed the Code willfully and recklessly. Indeed it would be almost impossible to find otherwise in such a clear breach of settlement case. On the Complainant’s own evidence, however, the Board cannot conclude that the Complainant’s mental anguish was a consequence of the Respondents’ actions in breaching the Settlement. The Complainant commenced seeing her family physician for depression sometime in 1993, and her conditions improved, then deteriorated in January 1997, well before the Settlement and the filing of the Second Complaint. She commenced seeing the psychiatrist in 1998, also before the filing of the Second Complaint. To the extent that the Respondents’ actions contributed to the Complainant’s mental distress, that distress appears referable to the First Complaint.
All claims for damages arising out of the First Complaint were extinguished by the Settlement. The claim for mental anguish damages is therefore dismissed.
The Board has jurisdiction to and does frequently award special damages in respect of loss of earnings. The Commission and Complainant claimed that the Board should order the Respondents to compensate the Complainant in the amount of five year’s earnings, calculated on her 1997 salary. This claim was premised on the notion that the Complainant lost five years of work between the events alleged in the First Complaint and the Settlement, and also lost the right to litigate that entitlement. The Commission also urged that it was not unreasonable to award damages for such period of time, having regard to the Complainant’s employment expectations entering into the Settlement.
Respondents’ counsel took the positions that the time period between 1992 and 1997 was wholly irrelevant to the calculation of wage loss arising from the Second Complaint. The Board agrees, and notes that what the Complainant lost the right to litigate when she entered into the Settlement was the wage loss attaching to the Respondents’ premature termination of her four-month contract at the Centre. In those circumstances, the Board cannot now conclude that the Complainant would have been found to be entitled to lost wages calculated over any significant period of time.
The Board does agree with the Commission’s submission that the wage losses flowing from the breach of the Settlement, however, must be assessed based on the Complainant’s expectation interest. In this regard, the Board notes that the obligations in the Settlement are not subject to any time limits whatsoever. They were continuing obligations at the time of the hearing, and they are continuing obligations now. There was no guarantee of employment beyond the end of 1998, but the Board notes that as early as December 1998 the Complainant expressed to the Centre’s Board of Directors her interest in assuming the Healing and Wellness Coordinator position upon the incumbent’s retirement in 1999. It appears to the Board that the reasonable thing for the Centre to have done in those circumstances would have been to continue to pay the Complainant, out of core funding if necessary, either until that position became vacant and then place her in it, or, in the meantime, to have had her fulfill the duties of the youth worker position created in February 1999. The Respondents adduced no evidence to indicate that that was not a suitable position for the Complainant having regard to her qualifications or her ancestry. Had these steps occurred, the Board finds it reasonable to conclude that the Complainant would still be performing the job of Healing and Wellness Coordinator. This position was one that had existed for many years and was as permanent as any at the Centre. Furthermore, the Complainant had performed well in the position, and there is no reason to conclude that she would not have continued to do so.
The Board finds that the Complainant has satisfied her obligation to mitigate.
In view of the Complainant’s opposition to an order for reinstatement the Board is reluctant to award damages in respect of anticipated wage losses. The Complainant is under an ongoing duty to mitigate her losses. Should the Board order prospective wage losses, the Complainant would be required to account to the Centre for any earnings during the period covered by the award, and the Board would have to remain seized in respect of any issues arising out of that accounting, or out of any alleged failure to mitigate.
The Board finds that the Respondents are jointly and severally liable to the Complainant for wage losses arising from January 1, 1999 to the date of this decision, calculated on the basis of an annual salary of $36,000, plus $5400 in benefits, less statutory deductions and any income actually earned during the period in question. The Board will remain seized with respect to any issues arising with respect to the calculation of these amounts, but notes that the Respondents have not disputed the accuracy of the information provided by the Commission with respect to the Complainant’s income.
Pre-judgment interest on the amount calculated in accordance with the preceding paragraph is payable from August 15, 1999 to the date of this decision. The date of August 15, 1999 was suggested by the Commission in its submissions dated March 29, 2001, and the Respondents in their submissions did not dispute that this would be an appropriate date. Such interest is to be calculated in accordance with the provisions of the Courts of Justice Act.
Post-judgment interest on the amount awarded in respect of wage loss is payable in accordance with the Courts of Justice Act from the date specified in the Board’s Order below.
In these circumstances where the Board is dealing in the Second Complaint with an allegation of a breach of the Settlement, rather than the merits of the First Complaint, there is no basis for awarding the public interest remedy requested by the Commission.
ORDER
The amounts the Board has found owing by the Respondents to the Complainant are to be paid within 60 days of this decision, failing which they will attract post-judgment interest in accordance with the provisions of the Courts of Justice Act. For clarity, those amounts are:
(1) $5,000 in respect of general damages.
(2) damages, in respect of wage loss calculated on the basis of $36,000 in income and $5,400 in benefits per annum, less applicable statutory deductions and any earned income, for the period from January 1, 1999 to the date of this decision; and
(3) prejudgment interest calculated in accordance with the Courts of Justice Act on the amounts determined under paragraph 2 above, from August 15, 1999 to the date of the decision.
Signed at Toronto, this 27th day of July, 2001
“Mary Anne McKellar”
Mary Anne McKellar, Vice-Chair