Ontario Human Rights Commission v. The Ford Motor Company, 2006 HRTO 25

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Mike Naraine

Complainant

-and-

The Ford Motor Company and

The Ford Motor Company of Canada, Limited

Respondents

interim DECISION

Adjudicator: Constance Backhouse

Date: September 21, 2006

Citation: 2006 HRTO 25

Human Rights Tribunal of Ontario

400 University Avenue, 7^th^ 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

APPEARANCES

Ontario Human Rights Commission ) Prabhu Rajan, Counsel

Mike Naraine, Complainant ) On his own behalf

The Ford Motor Company and ) Christopher G. Riggs

The Ford Motor Company of Canada, Limited ) and Lisa Kozma, Counsel

Corporate Respondents )

BACKGROUND

1“I don’t think it will have escaped the notice of anyone that if you go back to the time of the original complaint, there has been a lapse of twenty-one years.” This startling remark, made by Respondents’ counsel Christopher G. Riggs in his opening statement, underscores the extraordinary nature of this most unusual human rights case. On 3 August 2006, counsel for the Commission and for Ford were once more gathered together with Complainant Mike Naraine in the hearing room of the Human Rights Tribunal of Ontario. Both counsel expressed their fervent hope that this would be the final day of hearing in this case. Mr. Naraine, who was self-represented, expressed dubiousness.

2This case actually stems back thirty years, if one dates it from the events that first spawned the complaints. Mr. Naraine, a South Asian from Guyana, brought complaints dated 24 May 1985 and 24 October 1985, covering allegations of racial discrimination and harassment at Ford Motor Company in Windsor, stretching from 1976 to 1985. The torturous path that has led to this potentially final stage of hearing is painful to describe.

3The first hurdle was to navigate the Commission’s mandatory investigation process to obtain the right to a hearing. The Commission’s unconscionable eight year investigatory delay meant that the parties did not actually get before a board of inquiry until 1993. A hearing on the merits was delayed two more years while preliminary matters were litigated before the board of inquiry and appealed to Divisional Court.¹

4Hearing on the merits began in 1995 and stretched into 1996. The board of inquiry that I chaired found that Ford had discriminated against Mr. Naraine by permitting a racially poisoned environment in its plant, and by disciplining and discharging Mr. Naraine without taking into account the racially-hostile environment.² Further evidence was heard regarding remedy, and on 9 December 1996, I awarded Mr. Naraine reinstatement and damages.³ A decision on costs followed in 1997.⁴

5Ford’s appeal to the Ontario Court General Division was dismissed in 1999. Writing for the court, Matlow J. concluded that “taken in its entirety, the record of the proceedings before the Board reflect, in my view, a meticulous and painstaking effort on its part to afford the parties a fair and complete hearing of the issues raised and to render decisions that were supported by the evidence and correct in law.”⁵

6Ford’s appeal to the Ontario Court of Appeal was successful in part. In 2001, the order for Mr. Naraine’s reinstatement was set aside, but the findings of discrimination and the award of damages was upheld.⁶

7Both Ford and Mr. Naraine requested leave to appeal to the Supreme Court of Canada. That leave was denied.

8Upset with the outcome, Mr. Naraine filed a statement of claim with the Ontario Superior Court in 2003. He took this step without the involvement of the Commission and without counsel, and the action was framed in language that was unlikely to succeed in law. The claim against Ford was for “multi-billion-dollars in punitive damages,” based upon Mr. Naraine’s allegation that his termination “was in retaliation for enforcing his civil rights under the Ontario Human Rights Act” and was “caused by malicious, wilful, deliberate and egregious conduct of the Defendants which constitutes a public wrong.” Mr. Naraine’s pleadings claimed that he was entitled to punitive damages “solely as a matter of public rights and interests, in order to serve the public policy of punishment and deterrence.”⁷

9Ford brought a motion to dismiss the action on the ground that it failed to disclose a reasonable cause of action, and that the doctrine of res judicata precluded Mr. Naraine from relitigating this matter. In October 2003, Carnwath J. dismissed Mr. Nararine’s claim.⁸ Mr. Naraine’s appeal to the Divisional Court failed when MacFarland J. dismissed his motion for leave to appeal in January 2004. Mr. Naraine, who continued to represent himself, failed to appear at the hearing of this last motion, due to illness.⁹

10The parties next attempted to come to an agreement on the precise amount of damages owing to Mr. Naraine. There were extended negotiations between the Commission, Ford, and Mr. Naraine, documented in the books of exhibits filed by the parties. It took until April 2005 for the Commission, Ford, and Mr. Naraine to agree on the quantum. Counsel for the Commission and Ford no sooner expressed optimism that they were on the brink of closure when Mr. Naraine announced he was seeking independent legal advice again. In July 2005, Mr. Naraine advised that he was still “looking at obtaining a lawyer” and that due to personal medical issues, he did not anticipate “being able to mentally deal with this until the Fall.” After several more months passed, it appeared that Mr. Naraine’s agreement would not be forthcoming.

11Finally, the Commission and Ford concluded that the original board of inquiry should be summoned for another day of hearing, to see whether an order regarding the quantum could settle the matter for once and for all. This was the genesis for drawing the parties together once more on 3 August 2006.

12Earlier in this process, I indicated in one of my board of inquiry decisions that this most unusual human rights complaint, with its multiple twists and turns, had begun to resemble Charles Dickens’s Bleak House. Even by 1996, various managers and employees at Ford had testified that the extensive delay had caused them “considerable psychological anxiety.” The toll on Mr. Naraine by that point was even more stark:

One witness testified that Mr. Naraine’s immersion in the complaint process over such a stretch of time had taken a terrible toll. Mr. Naraine was consigned to “living in the past,” claimed one co-worker, who reported seeing him carrying around a stack of hundreds of pages of documents relating to the case, pulling sheets out at random, confused and disoriented. He “seemed to have aged about twenty years,” observed the witness.¹⁰

13Ten years later, in August 2006, Counsel for Ford emphasized that his client longed for finality, that they sought an end to the interminable process, and that this could “not keep going.” Counsel for the Commission agreed. Mr. Naraine seemed torn. Speaking of himself in the third person, through tears, he explained that misfortune had piled upon misfortune for him. His marriage had ended. His daughter had experienced serious mental health problems. On the other hand, he stated that “Mr. Naraine got caught in a public interest issue,” and that he had not let the case get the better of him, that it had “rejuvenated” him.

POSITION OF THE PARTIES AT 3 AUGUST 2006 HEARING

14Counsel for Ford explained that its calculations regarding the damages owed as of 25 June 2005 showed a total of $352,722.82. This amount included:

general damages of $30,000

pre-judgment interest on general damages of $33,143.21

special damages of $90,559.04

pre-judgment interest on special damages of $100,047.27

post-judgment interest of $115,673.30

minus a garnishment of $16,700 to be paid to Koskie Minsky, one of the law firms that had briefly represented Mr. Naraine in the past.

15Ford argued that post-judgment interest should stop running as of 25 June 2005, when all parties had agreed to the quantum. Ford also argued that Mr. Naraine should be required to sign a release. Ford noted that when Mr. Naraine had objected to the original language of the release, the wording had been amended to accord with his wishes. Ford indicated that it had received notice from the Commission that Mr. Naraine had agreed to the revised language on 22 June 2005.

16Counsel for the Commission agreed with the calculation of damages owing as $352,722.82. The Commission took no position on the payment of post-judgment interest after 25 June 2005, or on the issue of the release.

17Mr. Naraine conceded that he had no quarrel with the $352,722.82 quantum of damages to which he had earlier agreed on 25 April 2005. He conceded that post-judgment interest should stop running as of that date. He took no issue with the language of the revised release. He expressed concern that his pension entitlement had not been included in the damage award. Counsel for Ford clarified that Mr. Naraine was entitled to a pension commencing when he reached age 65, based on the years of service at Ford, extended to the spring of 1987, in accord with the board of inquiry ruling. Ford undertook to provide Mr. Naraine with a written statement of the pension estimate, which it did.

18Despite this, Mr. Naraine tried to explain why he would not agree to accept the money that he, Ford, and the Commission had determined was owing.

19He produced volumes of exhibits, many of them extracts from documents and factums filed in the earlier proceedings, all painstakingly compiled into ringed and tabbed binders. He spoke about how much he had wanted to return to work at Ford. “Ten years ago I said thank god, I’m going back to work, I’m going to provide, I’ve got a family, I’ve got to make a contribution.” He stated that compensation should provide a “make whole” result. He spoke of his concern that the Ontario Court of Appeal had overturned the reinstatement remedy, in part due to the delay that had ensued. “Who pays for the eleven years? Mr. Naraine....” He produced his own affidavit disputing the evidence of some of his co-workers regarding his allegedly violent episodes, in which he swore that he had not assaulted a welder or threatened to rape or kill the welder’s family. He insisted that some of Ford’s witnesses had perjured themselves, and expressed consternation that some of these statements had found their way into Ford’s appellate factum. He claimed that Ford had “made a mockery of the entire judicial system.” He was certain that the Ontario Court of Appeal had erroneously relied upon perjured statements, and failed to take proper account of the other evidence that had exonerated him. He questioned how a court of appeal could substitute its opinion for that of a lower court “based on a partial record.”

20Mr. Naraine stated that he did not want to get into questions about the appropriate amount of damages. “Back pay, front pay...the monetary amount is not my issue. I don’t need the money.” Instead, Mr. Naraine requested that the Ontario Court of Appeal decision setting aside the remedy of reinstatement be “set aside” and that the court should be asked to reconsider the entire case “de novo,” based on a full evidentiary record: “I have no qualms of the court of appeal, having the total record, to reconsider this matter.”

DECISION

21I agree with Ford and the Commission that this human rights case should be finally and completely terminated.

22There is no legal avenue to continue to litigate Mr. Naraine’s claims. A board of inquiry has no jurisdiction to set aside an appellate ruling. The Ontario Court of Appeal does not hear cases de novo. Under our system of law, cases are heard and decided according to a set procedure. Mr. Naraine’s desire for another opportunity to put evidence before a fact-finding body cannot be met under our legal rules.

23This board of inquiry does have jurisdiction to make a final order regarding damages, given that its earlier decision indicated that it remained “seized of this proceeding, retaining jurisdiction to hear and decide any outstanding matters related to this decision which are not capable of resolution by the parties themselves.”¹¹

24The quantum of damages discussed above, agreed to by all parties, reflects an accounting of lost wages according to the final decision of the board of inquiry, as upheld by the courts, and supported by actuarial opinions regarding wage increases. Given that the issue of quantum was settled on 25 June 2005, and Mr. Naraine conceded that post-judgment interest should cease as of that date, there should be no post-judgment interest after 25 June 2005. The amount owing to Mr. Naraine from Ford is $352,722.82. With payment of this amount, Ford has fully satisfied its remedial obligation to Mr. Naraine arising out of his two human rights complaints in 1985.

25At the hearing, I asked Mr. Naraine if he would be prepared to sign the revised release, and he declined. Once Ford compensates Mr. Naraine for $352,722.82, however, its legal obligations arising out of the board of inquiry hearing and the subsequent ruling of the Ontario Court of Appeal are at an end.

26Ford expressed some concern over whether Mr. Naraine would actually take the cheque and cash it. Should he fail to do so, Ford noted that it did not wish to be placed in the position of continuing to hold the money in perpetuity. It would be most unfortunate if Mr. Naraine did decide not to accept the funds, since these are monies owing to him for the violations of his human rights. If there is any issue arising over the final payment of these funds, the question of how the money is paid - whether held in trust or otherwise - should be resolved by an agreement between Ford and the Commission.

27Mr. Naraine indicated in the final moments of the 3 August 2006 hearing, that he did not view this case to be at an end. This is not surprising. Mr. Naraine’s human rights complaint took over his life for well near thirty years. All of us involved in this interminable legal process owe him some apology for the part we have played in drawing out the resolution of this dispute. If our process had been prompter, much might have been different.

28As for the result, there were moments along the way when many of us disagreed with Mr. Naraine’s view of his case. The labour arbitrator, Commission investigators, Commission counsel, Ford, his own counsel, my board of inquiry, and the courts all took issue with some aspects of Mr. Naraine’s claim. It is perhaps not surprising, but still truly regrettable that Mr. Naraine continues to dwell so deeply on these portions of his case. It is important to emphasize that he won more points than he lost. He stood up against formidable forces to insist that his workplace was filled with racism, and that he had been detrimentally affected due to this. He proved his case on this beyond dispute. When he states that he got “caught in a public interest issue” he only partially describes his thirty-year effort. In fact, he acted on behalf of the public interest, and he did so with resounding effectiveness. We are all in debt to him for his long and costly struggle to eradicate racism in our society. I hope that, if nothing else, he takes from this decision more understanding of how great that debt is. I also hope that he resolves, finally, to turn his life to entirely new endeavours, in which his strength of conviction and passion for a racially egalitarian world can bring more positive change for the future.

ORDER

29The Respondents are directed to pay Mr. Naraine $352,722.82.

30With this payment, the Respondents have fully satisfied their remedial obligations to Mr. Naraine arising out of his two human rights complaints in 1985.

31Should Mr. Naraine decline to cash this cheque within three months of its issue, the question of how the money is to be paid – whether held in trust or otherwise – should be resolved by an agreement between the Respondents and the Commission.

Footnotes

1. 1Naraine v. Ford Motor Company of Canada et al. (No. 1) (1994), 1994 CanLII 18436 (ON HRT), 24 C.H.R.R. D/457 (Ont. Bd. Inq.); Ford Motor Company of Canada v. Ontario (Human Rights Comm.) (1994), 1995 CanLII 7431 (ON CTGD), 24 C.H.R.R. D/464 (Ont. Ct. Gen’l Div.); Naraine v. Ford Motor Company of Canada et al. (No. 2) (1995), 1995 CanLII 18167 (ON HRT), 24 C.H.R.R. D/466 (Ont. Bd. Inq.).
2. 2Naraine v. Ford Motor Company of Canada et al. (No. 4) (1996), 1996 CanLII 20059 (ON HRT), 27 C.H.R.R. D/230 (Ont. Bd. Inq.).
3. 3Naraine v. Ford Motor Company of Canada et al. (No. 5) (1996), 1996 CanLII 20056 (ON HRT), 28 C.H.R.R. D/267 (Ont. Bd. Inq.).
4. 4Naraine v. Ford Motor Company of Canada et al. (No. 6) (1997), 1997 CanLII 24811 (ON HRT), 28 C.H.R.R. D/275 (Ont. Bd. Inq.).
5. 5Ford Motor Company of Canada v. Ontario (Human Rights Comm.) (No. 2) (1999), 1999 CanLII 15056 (ON SC), 34 C.H.R.R. D/405 (Ont. Ct. Gen. Div.).
6. 6Ford Motor Company of Canada v. Ontario (Human Rights Comm.) (2001), 41 C.H.R.R. D/340 (Ont. C.A.).
7. 7Mike Naraine v. The Ford Motor Company et al., Court File No. 03-CV-249795 CM2, Statement of Claim, 2 June 2003.
8. 8Mike Naraine v. The Ford Motor Company et al., Court File No. 03-CV-249795 CM2, 22 October 2003.
9. 9Mike Naraine v. The Ford Motor Company et al., Court File No. 661/03, 20 January 2004.
10. 10Naraine v. Ford Motor Company of Canada et al. (No. 4) (1996), 1996 CanLII 20059 (ON HRT), 27 C.H.R.R. D/230 at D/232 (Ont. Bd. Inq.).
11. 11Naraine v. Ford Motor Company of Canada et al. (No. 5) (1996), 1996 CanLII 20056 (ON HRT), 28 C.H.R.R. D/267 (Ont. Bd. Inq.) at D/275.