HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Muhammad Saleem Quereshi
Complainant
-and-
The Board of Education for the City of Toronto and
Central High School of Commerce
Respondents
DECISION ON REMEDY
Adjudicator: Ed Ratushny, Q.C.
Human Rights Tribunal of Ontario
400 University Avenue, 7th Floor
Toronto ON M7A 1T7
Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946
TTY (416) 314-2379 / 1-800-424-1168
A. BACKGROUND
1This complaint arose out of an act of discrimination which occurred in October of 1982. This Board of Inquiry, now called the Human Rights Tribunal of Ontario, was appointed on January 28, 1987, and the initial hearing commenced the following month. The Board accepted the parties’ submission that the initial hearing should deal only with whether there was a contravention of the Ontario Human Rights Code. The issue of an appropriate remedy would be addressed, if necessary, at a subsequent hearing.
2On August 11, 1989, the Board rendered its decision that the Respondents had contravened the Code. The Respondents appealed this decision to the Ontario Divisional Court which allowed the appeal in its judgment dated January 21, 1991. The Ontario Human Rights Commission appealed this decision to the Ontario Court of Appeal which rendered judgment on January 15, 1997, restoring the decision of the Board. The Respondents then sought leave to appeal to the Supreme Court of Canada which denied leave on September 18, 1997.
3On December 19, 1997, the Board commenced the hearing to deal with the issue of remedy pursuant to section 41 of the Code. At that time, it was agreed the parties would exchange written submissions outlining the issues and stating their positions. Hearing dates were set for the following June and September. In June, the parties indicated that, in view of the number and complexity of the issues, they wished to engage in mediation to attempt to resolve as many as possible by agreement.
4The attempted mediation was not successful and the hearing resumed in October of 1998. At that time, Counsel for the Commission indicated the Commission was withdrawing from further participation in the hearing. The Commission and the Respondents were in agreement as to an appropriate remedial order. However, the Complainant did not agree with the terms of the proposed settlement and wished to proceed. The terms of that proposed settlement were not disclosed to this Board.
5On October 23, 1998, I made a number of preliminary rulings and observations with a view to focusing the issues and expediting the hearing. These were as follows:
(a) Ruling against permitting evidence to be adduced in relation to alleged misconduct on the part of the Respondents during the course of the hearing;
(b) Ruling against permitting evidence to be adduced in relation to systemic issues in hiring in support of an order requiring the creation of a central agency for employing teachers;
(c) Ruling against an apology or counseling as an appropriate remedy in this case;
(d) Denying an order against retaliation or reprisal;
(e) Ruling that the criterion of “wilfully or recklessly” in subsection 41(l)(b) of the Code has not been met thereby precluding an order based on “mental anguish” under that subsection;
(f) Ruling that the Respondents have not established any failure on the part of the Complainant to mitigate and that the loss of income would be calculated from October 14, 1982 to June 30, 1988, subject to any further evidence with respect to this period but without regard for any contingencies such as being declared surplus or redundant. Nor would there be an order requiring that the Complainant be offered a position as head of science and as specialist chemistry teacher. Nor would there be a monetary award for future or prospective loss of earnings;
(g) Ruling that the Board does not have authority to award costs for legal counsel pursuant to section 41(4) or on any other basis. Nor does the Board have authority to entertain a constitutional challenge to its inability to award costs. However, the Board noted the breadth of the phrase “make restitution” under subsection 41(1)(b) of the Code and invited submissions on the issue of taking legal costs into account as one factor in assessing general damages;
(h) Ruling that the Complainant’s seniority be established to reflect continuous employment as a full-time secondary school teacher from October 14, 1982;
(i) Providing my “preliminary impressions” as to the calculation of interest, stressing that “my mind is completely open to any submissions that will be made on this item.”
6The hearing continued in January and February and was scheduled to resume on March 11, 1999. However, the parties sought to have their respective accountants meet to attempt to resolve as many of the issues as possible and resumption of the hearing was re-scheduled for September 8, 1999. On that date, the Respondents sought a stay of proceedings on the basis the Board had lost jurisdiction as a result of the decision of the Ontario Divisional Court in McKenzie Forest Products Inc. v. Tilberg, 1999 CanLII 35213 (ON SCDC), [1999] O.J. No. 2813, rvsed. (2000), 2000 CanLII 5702 (ON CA), 48 O.R. (3d) 150 (C.A.). Expedited written submissions were received on this issue and the Board rendered a written Ruling on October 1, 1999, that the hearing would resume on October 6, 1999. The Respondents then obtained an Order from the Ontario Divisional Court staying the proceedings.
7Following resolution of the jurisdictional issue in the Tilberg case by the Ontario Court of Appeal, which allowed the appeal, and denial of leave to appeal to the Supreme Court of Canada, this hearing resumed on April 5, 2001, and concluded on September 5, 2001. It was agreed that argument would proceed by way of written submissions and a schedule was established whereby the final submission would be provided by November 30, 2001. Due to a number of unforeseen circumstances, the parties consented to a series of extensions resulting in the Board receiving the final submission on September 23, 2002.
B. SPECIFIC ITEMS
8Pension Benefits: The parties have agreed that the Complainant’s years of credited service should be adjusted from 5.20245 to 5.85000 years. Counsel for the Complainant stated he has received assurances from representatives of the Teacher’s Pension Plan Board that they would comply with a request from the Respondents to make such an adjustment to the Complainant’s records. The Respondent is directed to make such written request and, in so doing, to point out that this Tribunal considers this the most fair resolution of the pension issue having regard to the difficulties of making a lump sum calculation, the objectives of the Code and the Complainant’s religious beliefs as a traditional Orthodox Muslim. Copies of the letter are to be sent to the Tribunal, the Complainant and to the Commission.
9Sick Leave Credits: The submissions of the parties present two different approaches to the issue of sick leave credits. The Complainant states that his sick leave pool should simply be credited with 108.5 days. The Respondents states that the calculation of days should be extrapolated from the “Estimated Lost Sick Leave Gratuity” contained in the report of Grant, Thornton, accountants (Exhibit 14). This estimated amount is $7,820. It is clear from the record that the parties agreed that the Respondent should credit the Complainant “with the equivalent number of sick leave days that this amount represents.” (Transcript, June 14, 2001, p. 1395, ll. 1-12). The Respondents are directed to do so.
10OHIP Premiums: The Complainant is entitled to compensation in the sum of $3,349. for OHIP premiums actually paid by the Complainant during the loss period. While complete documentation was not available, this figure represents the accountant’s estimate (Exhibit 14) based on the documentation that was available.
C. LOST INCOME
11The preliminary ruling referred to in Paragraph 5(f) above, established the period from October 14, 1982, to June 30, 1988, for the calculation of loss of income (and commencement of seniority). It was later agreed by the parties that further considerations required that this period be extended to June 30, 1991.
12The Complainant claimed that if he had received the position in question initially, he would have been placed in Group III, Step 10. This was the level at which the successful candidate was placed and the Complainant had at least equivalent experience. It does not necessarily follow that where a position has been lost due to discrimination, the victim must be treated in all respects as the successful applicant. However, here there was no basis for differentiating. The Respondents also submitted that the proper avenue for disputing his placement was by way of a grievance under the collective agreement. In all of the circumstances, it was reasonable for the Complainant to expect all of these related issues to be resolved as part of his discrimination complaint. Finally, the Respondents submitted there was no evidence as to the actual placement of the successful candidate. However, she was assessed as being in Group III at the maximum salary for that Group. The salary is to be calculated on the basis that the Complainant’s original placement would have been Group III, Step 10.
13The Complainant also claimed that he would have progressed to Group IV the following year. There is no credible evidence to support this claim.
14The Respondents contend that income earned by the Complainant for teaching Summer School and Night School from 1982 to 1987 should be set off against Lost Income. The Complainant contends that if he had received the full-time appointment in 1982, that would not have affected his Summer School and Night School teaching. Over the five years in question, the income from Summer School teaching averaged approximately $4200 per year and from Night School teaching, approximately $9000 per year. Following the Complainant’s full-time employment in September 1988, the Summer School income remained steady, at approximately $4200 for the next two years. However, the Night School income dropped dramatically to an average of approximately $880 for each of those academic years. In the years that followed, both Summer and Night School income ended completely.
15The Complainant contended that the absence of further teaching of this nature was the result of efforts by the Respondents, in effect, to punish him for his discrimination complaints. There is no evidence to support this allegation and the evidence supports the explanation that there simply was not sufficient enrolment to justify offering sufficient courses to allow the Complainant to be engaged. The evidence also weighs against the Complainant continuing to teach Night School, particularly in the context of his family circumstances, which are discussed below. However, the Summer School teaching, when available in 1989 and 1990, was fully undertaken. In these circumstances, the Night School income will be set off for the period in question, but not the Summer School Income.
16The parties have agreed to the basic calculation of Income Loss compensation subject to their disagreement over the issues of Initial Placements, Summer School and Night Teaching. Since these now have been resolved, the parties shall, prior to June 27, 2003, submit to the Tribunal their joint submission as to the final calculation of lost income and benefits which shall form part of this decision and be enforceable as such. The joint submission should also include confirmation the Respondents have written to the Teacher’s Pension Plan Board and the latter has confirmed it will comply with the Respondents’ request to adjust the Complainant’s years of credited service.
D. GENERAL DAMAGES
17Section 41(l)(b) of the Code authorizes the Tribunal to direct the Respondents “... to make restitution including monetary compensation, for loss arising out of the infringement” of the Code. In the case of Ontario (Liquor Control Board) v. Ontario (Human Rights Commission) and Karumanchiri, 1988 CanLII 8926 (ON HCJDC), [1988] O.J. No. 167, Justice Rosenberg, delivering the judgment of the Ontario Divisional Court, stated that these provisions:
... should be accorded a broad and liberal interpretation in order to, as far as possible, remedy the effects of or prevent discrimination.
In Ontario (Human Rights Commission) v. Shelter Corp., 2001 CanLII 28414 (ON SCDC), [2001] O.J. No. 297, Justice O’Driscoll, delivering the judgment of the same Court stated:
... a Board of Inquiry is entitled to award non-pecuniary, intangible damages arising out of the infringement of the complainant’s rights under the Code. It is an award to compensate for the intrinsic value of the infringement of the complainant’s rights under the Code; it is compensation for the loss of the right to be free from discrimination and the experience of victimization. There is no ceiling on the amount of general damages. [Emphasis added]
18Without attempting to review all of the awards of general damages made under the Code, it is probably fair to generalize that an award of approximately $10,000 has tended, in the past, to represent the upper end of awards for a single infringement of the Code. More recently, in Arias v. Desai, 2003 HRTO 1, general damages were awarded in the sum of $25,000.
19The Complainant claims the amount of $250,000 for general damages “including consequential expenses of about $150,000". These consequential expenses represent legal fees and disbursements for experts, printing and other incidental expenses. Also included in these expenses is a figure of $25,000 “representing 800 hours of preparation” on the part of the Complainant in relation to these proceedings. Thus, the claim of $250,000 can be broken down to include $100,000 for the intangible consequences for the Complainant, $125,000 for legal fees and disbursements and $25,000 for the Complainant’s preparation time. Each will be addressed in turn.
20The Complainant testified and called medical experts to attempt to establish that the failure to obtain the full-time teaching position in October of 1982 marked a turning point in his life. Prior to this point, it was alleged he was an out-going, respected and highly educated person with high self-esteem but, as a result of the discriminatory act, he lost: the love and respect of his wife and children, his position as head of the family, the obedience of his children, his status as a role model in the community, interest in his sexual life and his self-esteem. His resulting condition included, amongst other things, depression, shame, sleeplessness, anxiety at his workplace, avoidance of family and friends, paranoid and suicidal feelings and abuse of his family. He also was faced with the death of his son in tragic circumstances.
21However, there were serious problems with the evidence adduced to establish that these consequences were mainly attributable to the failure of the Complainant to receive full-time employment in October of 1982. Evidence of the causative relation came almost entirely from the Complainant, himself, either directly or indirectly (based on what he told the medical experts). That evidence was also inconsistent with the serious stage of deterioration of his family’s relations that already existed at that time. No useful purpose can be served by documenting these tragic circumstances or the self-serving, exaggerated and non-credible attempts by the Complainant to link all of these to the discriminatory act in question. The absence of full-time employment from 1982 to 1987 can be characterized as one aggravating factor in a family situation that was already in serious trouble.
22At the same time, there can be no doubt that full-time employment would have been much less stressful than having to cobble together an income through teaching night school and working as a supply teacher. Supply teaching involved having to stand by early each morning waiting for a telephone call, reporting to unfamiliar schools, teaching unfamiliar subjects, attempting to adapt to the teaching plans of others, inability to establish relations with students and colleagues and the “dead time” of waiting by the telephone when no calls come. In this sense, the Complainant did experience the consequences of the discriminatory act almost daily for a period of five years and this is a significant factor to take into account in assessing general damages.
23The Complainant has failed to establish a basic causal connection between the discriminatory act and the breakdown of his family. However, the consequences of not obtaining full-time employment in 1982 resulted in significant stress over a five-year period and an ongoing reminder of the indignity and victimization he had experienced. As a result, the first aspect of the claim for general damages should be much higher than for a single act of discrimination that does not have such direct, ongoing repercussions. Along these lines, see Bubb-Clarke v. Toronto Transit Commission, [2002] O.H.R.B.I.D. No. 6 (Member Rosenberg). I assess this aspect of general damages in the sum of $25,000.
24In the Karumanchiri case, referred to above, the Divisional Court held that there was no authority for a Board of Inquiry to award legal costs in the absence of the specific circumstances contained in former subsection 40(6) (now subsection 41(4)). The Court reasoned that: (1) There is no inherent jurisdiction to award costs; (2) Costs were specifically authorized by the Code in narrowly defined circumstances; (3) In the absence of such circumstances, the intention of the legislature was to exclude an award of costs in other circumstances. Justice Rosenberg added that the general authority of a Board of Inquiry to direct a respondent “to make restitution including monetary compensation” does not authorize the award of costs to complainants under the Code.
25However, in Curling v. Torimiro, [2000] O.H.R.B.I.D. No. 16, the Board of Inquiry (Vice-Chair Laird) clearly held that section 41(4) did not foreclose an order for a complainant’s legal expenses “as part of a restitutional award under s. 41(l)(b).” This conclusion appears to be in direct conflict with the Karumanchiri decision, which is not referred to in the Curling decision and may not have been cited there. The Board of Inquiry ordered “special damages” as compensation for legal disbursements and counsel fees in a form difficult to distinguish from legal “costs”. See, contra, Ketola v. Value Propane Inc., [2002] O.H.R.B.I.D. No. 14 (Chair Garfield).
26In my view, the Karumanchiri decision precludes the award of specific “costs” for legal disbursements and counsel fees. However, personal expenses, including legal fees and disbursements, incurred by a Complainant in successfully pursuing a discrimination complaint may be taken into account as one factor in assessing general damages. These are not actual taxable “costs” but a recognition that an additional financial burden was experienced by the Complainant. It is notable that although the Court denied legal costs in the Karumanchiri case, it expressed the hope, nevertheless, that the Respondent L.C.B.O. would compensate the Complainants for their “legal expenses” and said it would be “regrettable” if they did not. Justice Rosenberg added: “It is even possible that they could recover these costs as damages in a civil suit.”
27Evidence was not adduced by the Complainant as to the specific expenses incurred for the medical and accounting experts or for legal fees. There was some indication that the issue of legal fees would only be finally determined after the proceedings were completed. There was also the suggestion of some portion of the fees being provided pro bono.
28The Complainant’s submission indicates that there have been approximately 180 hours of hearings over some 35 days. There were additional attendances for attempted settlement and mediation conferences. Counsel for the Complainant made a substantial contribution to the hearings both in relation to the contravention and remedy stages. Whether justified or not, the Complainant did not have confidence in the Commission as an institution and counsel for the Complainant also carried on after Commission counsel withdrew from the hearing. Although it represents only a small fraction of any reasonable assessment of the Complainant’s actual legal costs and disbursements, the sum for this aspect of general damages is set at $10,000. This figure is intended to take into account that the Complainant incurred substantial legal expenses as one factor in assessing general damages, without specifically compensating for actual expenses.
29The Complainant also claimed $25,000 representing approximately 800 hours of personal preparation quite apart from attendance at hearings. The Complaint was first made over twenty years ago. The Respondents asserted their legal rights rigorously at every opportunity through appeals and judicial review. The grim reality is that this process has been exceptionally drawn out and must have been particularly stressful for the Complainant for that reason, over and above the usual stress involved in any litigious process. It was also a constant reminder of the discriminatory act. Unfortunately, there appears to be no avenue available for awarding compensation based on the consequences of the proceedings themselves.
E. INTEREST
30The Shelter Corp. decision, referred to above, confirmed the jurisdiction of a Board of Inquiry to award pre-judgment interest on any award of damages. Pre-judgment interest is ordered on both special and general damages from October 14, 1982, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.
31A number of issues were raised surrounding whether, and the manner in which, interest should be calculated. In the end, the order in the previous paragraph has been selected as reflecting the most common and legally sound practice of the Tribunal. The Respondents submitted that the Commission should contribute to the interest payments because of its contribution to the delay in these proceedings. That proposition is rejected. The interest payment here does not reflect fault. It represents money in the hands of the Respondents that should have been in the hands of the Complainant. Nor will any earlier attempts to settle be examined. It appears that the Respondents made a voluntary interim advance payment to the Complainant in October 2001. Clearly, interest should not be paid on that amount from the date of such payment.
F. ORDER
32The Respondents are ordered to pay or provide to the Complainants:
Pension, Sick Leave and OHIP benefits in accordance with Paragraphs 8, 9 and 10, respectively, of this Decision;
Compensation for Lost Income in accordance with the previous agreement of the parties subject to the rulings in Paragraph 12 with respect to Initial Placement and the ruling in Paragraph 15 with respect to Summer and Night School teaching;
General Damages in the sum of $35,000;
Pre-judgment interest in accordance with the Courts of Justice Act.
33The Complainant and Respondents are ordered to file their joint submission to the Tribunal prior to June 27, 2003, in accordance with Paragraph 16.
34The Tribunal will remain seized of this matter until all aspects of this Order have been met.
Dated at Ottawa, this 15th day of May, 2003.
“Ed Ratushny”
Ed Ratushny, Q.C.