Keith Ramoutar v. Toronto Community Housing Corporation, 2009 HRTO 605

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Keith Ramoutar

Applicant

-and-

Toronto Community Housing Corporation

Respondent

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Mark Hart

Date: May 12, 2009

Citation: 2009 HRTO 605

Indexed As: Ramoutar v. Toronto Community Housing Corporation

written submissions BY

Keith Ramoutar, Applicant ) Barbara Adamson,

) Representative

Toronto Community Housing Corporation, ) Michelle Wong,

Respondent ) Counsel )

1In my Case Resolution Conference decision (the CRC decision) in this matter, 2009 HRTO 181, I found the respondent Toronto Community Housing Corporation (“TCHC”) had violated the Ontario Human Rights Code in the following respects:

a. That TCHC was liable for violations of ss. 5(1) and (2) of the Code as a result of its Regent Park Manager making comments to the effect that “you Jamaican and Caribbean people should be lucky or thankful to have a job like this”;

b. That TCHC further violated s. 5(1) of the Code by failing in its responsibility to take reasonable steps to address these comments; and

c. That TCHC discriminated against the applicant because of his race and colour and thereby violated s. 5(1) of the Code by prematurely transferring the applicant out of his position as an Acting Superintendent at Regent Park.

2Because this matter had been bifurcated to deal first with issues of liability and then with any issues of remedy, I requested that the parties file written submissions as to the remedies sought in light of my findings and whether any further evidence was required before I make my decision on remedy. This Decision addresses the written submissions filed by the parties.

1. Special Damages

a) Wage Loss

3The applicant requests re-imbursement of wages “on a superintendent’s pay scale for 20 months plus and including the date of the final acceptance of the remedies before the Human Rights Tribunal”.

4I have found that the applicant was prematurely transferred out of an Acting Superintendent position effective August 21, 2006. Following the transfer the applicant was absent on sick leave and returned to work on December 11, 2006 in an Acting Superintendent position, albeit at a different location. The dispute concerning events and issues from and after December 11, 2006 has been deferred pending determination of an ongoing labour arbitration proceeding. As a result, the maximum time period for which the applicant can seek compensation at this stage of the proceeding is from August 21 to December 11, 2006.

5The respondent takes the position that the period of compensation for the applicant should be cut off as of October 12, 2006, when the last of the four permanent Superintendent positions at Regent Park was filled. In my view, this may under-estimate the losses suffered by the applicant. The principle underlying the Tribunal’s remedial jurisdiction is to put the applicant in the position he would have been but for the discrimination. But for the discrimination, the applicant may not have been absent on sick leave and not only would have been available to continue in his Acting Superintendent role at Regent Park until these positions were permanently filled, but also may have been available to take an earlier transfer to an Acting Superintendent position at another location, if that position was available prior to his return from sick leave on December 12, 2006. Accordingly, in my view, I need to receive evidence as to whether the Acting Superintendent position at CHU #23 would have been available to the applicant from or after October 12, 2006.

6The respondent submits that the applicant should be awarded lost wages at the rate of $3.31 per hour, being the differential between what he was paid at the Handyworker, Grade 2 level and what he would have received as an Acting Superintendent. While the period for which this amount should be calculated remains in dispute, the actual amount of the differential has not been disputed.

b) Overtime

7The applicant claims compensation for all overtime that would normally have been scheduled for the same 20 months plus period. For all the reasons set out above, the maximum amount of time for which this claim could be made at this stage of the proceeding is from August 21, 2006 to December 11, 2006.

8The respondent submits that an appropriate calculation of overtime entitlement should be made from averaging the overtime actually claimed by the acting Superintendents and Project Superintendents who staffed Regent Park after the applicant’s transfer on August 21, 2006 up until the last permanent Superintendent was placed there on October 12, 2006. Overtime records for the individuals in these positions show an average of two hours of overtime during this period, for a total amount owing of $78.72. I agree that this is an appropriate method for calculating the applicant’s entitlement to compensation for overtime during this period.

9However, the applicant also would be entitled to compensation for any overtime he would have worked following his transfer from Regent Park to CHU #23, whether as a Handyworker, Grade 2 or as an Acting Superintendent up until the time he actually was able to return to work on December 11, 2006. Accordingly, I will need to receive evidence as to what overtime would have been worked by the applicant at CHU #23 during this period.

c) Sick Leave Benefits

10The applicant has requested reimbursement of sick time from August 2006 to December 2006. The respondent has indicated that the applicant was away from work from August 21, 2006 to December 11, 2006 and has calculated that this amounts to 78 days of sick leave. The respondent has indicated that it is prepared to credit the applicant with 78 days of sick leave, but only in lieu of any award of monetary compensation for the infringement of his rights under the Code.

11The respondent submits that the applicant has failed to prove any damages justifying his absence as a result of his transfer, and states that there is no medical evidence to prove that the applicant suffered from mental stress during this time period. The reason for this is that the hearing was bifurcated and as a result the applicant has not yet tendered any medical evidence regarding the reason for his absence during this period. Accordingly, for this and other reasons discussed below, I will need to receive medical evidence as to the reason for the applicant’s absence from work during the period from August 21 to December 11, 2006 and to what extent the reason is attributable to the discrimination I have found that he experienced.

d) Psychotherapy and Medical Expenses

12The applicant has requested payment for all psychotherapy costs from October of 2007 to the present day and for ongoing psychiatric support for the duration of time required to make him whole. As these claims pertain to the events and issues from and after December 2006 which have been deferred pending the labour arbitration proceeding, these claims are beyond the scope of my remedial order at this stage of the proceeding.

e) Other Expenses

13The applicant has made a claim for “any and all other expenses incurred from the date of filing” but has not provided any particulars as to what these expenses were for or in what amount. In the CRC Decision, the applicant was directed not only to file a statement of what remedies were being sought, but also to file “all evidence in support of these remedies”. As no such evidence was provided, I will not consider this claim.

2. Request for Reinstatement

14The applicant requests that a Superintendent position be preserved for him until such time as his mental and physical condition has been re-assessed by his attending physicians and he is capable of returning to work, and that “all future attempts to dismiss the applicant cease immediately and [the respondent] be refrained from harassing the applicant about his return to work”.

15Neither of these requested remedies are within the scope of my remedial order at this stage of the proceeding. At the time relevant to this stage of the proceeding, the applicant had returned to work as an Acting Superintendent on December 11, 2006. Subsequent events are the subject of the ongoing labour arbitration proceeding.

3. General Damages

16The applicant claims $1,500,000.00 for “mental stress and anguish damages” plus a further $75,000.00 for “aggregate damages for aggravation, humiliation and racial discrimination”. While the applicant has characterized his claim for general damages under two separate headings, there is no longer any separate assessment of this kind of non-pecuniary loss under the new provisions of the Code and the old language referring to a separate assessment for “mental anguish” damages has been repealed. Under the current Code, there is simply one assessment for non-pecuniary damages relating to “compensation for injury to dignity, feelings and self-respect”: see s. 45.2(1).1.

17In light of the complexity of the medical issues, the applicant has requested the ability for the applicant’s attending physicians to provide oral evidence before the Tribunal.

18The respondent has made extensive submissions on the issue of general damages, and takes the position that a substantial award of general damages is not appropriate in this case in light of the applicant’s conduct in engaging both the labour arbitration process and the human rights process simultaneously, by raising a large number of allegations in the human rights proceeding that were dismissed, and by alleging a personal vendetta against him by the personal respondent which was not found to be supported by the evidence. With regard to the applicant’s request to provide oral evidence, the respondent takes the position that general damages should be assessed on the basis of the evidence already submitted by the applicant.

19In my view, it would be unfair to restrict the assessment of general damages only to the evidence already submitted by the applicant, given that the applicant was prepared to call medical evidence in the first stage of the proceeding and this evidence was not heard only because the proceeding had been bifurcated. Accordingly, I am prepared to hear medical evidence on behalf of the applicant. However, as indicated in the CRC Decision, this evidence must be focused on the impact on the applicant of the racial comment in June 2006 and the transfer in August 2006, and should not extend to subsequent events which are the subject of the ongoing arbitration proceeding. The parties will be contacted by the Registrar-Transition to make appropriate arrangements for a half-day CRC hearing to receive this evidence. By no later than 14 days in advance of this CRC hearing day, the applicant shall disclose to the respondent a copy of all medical notes for the period from August 21 to December 11, 2006 and any prior medical notes that contain information that is arguably relevant to the reason for the applicant’s absence from work during that period.

20The respondent’s submissions regarding the quantum of general damages will be considered by me after I have heard any relevant medical evidence from the applicant.

4. Other Requests by the Applicant

21The applicant requests that “all negative reports, letters or emails within the company be erased and barred from further production” and that the respondent “be barred from future harassment and racial discrimination and racist behaviour”.

22I am not aware of any “negative reports, letters or e-mails” that pertain to the specific findings of discrimination and harassment that I have made, and no specific were provided by the applicant. Accordingly, I have no basis upon which to make any such order.

23I see no reason to make the other order requested by the applicant. The respondent already is barred from engaging in harassment and discrimination by the provisions of the Code. I fail to see what the making of such an order would add to the existing legal obligation.

5. Interest

24The applicant has claimed pre-judgment and post-judgment interest. This claim is appropriate and will be included in the final determination of remedy in this proceeding, following the half-day hearing to be scheduled.

6. Public Interest Remedies

25While the applicant has not requested any specific public interest remedies, beyond the respondent being barred from further harassment and discrimination, the Tribunal itself has the power on its own initiative to consider whether public interest remedies are appropriate: s. 45.2(2)(b).

26The respondent has a Human Rights, Harassment and Fair Access Policy that forbids any form of discrimination, harassment or barrier in employment. The respondent states that TCHC has grown significantly since the events giving rise to this proceeding, and that TCHC has taken a very pro-active role in developing a Human Rights and Equity Unit whose sole concern and function is to ensure that TCHC endorses and upholds human rights in all of its dealings, whether with tenants or employees.

27The respondent submitted the Unit’s plan for 2009, which includes human rights training for all TCHC employees as well as additional sessions for all management employees to reinforce the company’s obligations under the Code and its internal human rights policy. The Unit’s plan also addresses the need to ensure that complaints under the Policy can be easily made and that there is proper oversight to ensure that each complaint is appropriately investigated. The respondent also has hired two new staff members to work with the Human Rights and Equity Unit who previously worked with the Ontario Human Rights Commission.

28Upon review of all of the material submitted by the respondent and in light of the limited nature of the findings of discrimination and harassment made against the respondent, it is my view that no further public interest remedies are warranted.

NEXT STEPS

29Within 10 days of the date of this CRC Decision, the parties are to provide the Registrar-Transition with all of their availability in June, July and August 2009 for a half-day CRC hearing to receive evidence on the following points:

a. To hear medical evidence from the applicant focused on the impact on him of the racial comment in June 2006 and the transfer in August 2006 and the reason(s) for his absence from work from August 21 to December 11, 2006;

b. To receive evidence regarding the availability of an Acting Superintendent position at CHU #23 during the period prior to December 11, 2006;

c. To receive evidence regarding what overtime may have been available to the applicant at CHU #23 from and after October 12, 2006 to December 11, 2006 either as a Handyworker, Grade 2 or as Acting Superintendent.

30At the hearing, I also will hear any final submissions from the parties regarding the issue of remedy.

31Finally, by no later than 14 days in advance of this CRC hearing day, the applicant shall disclose to the respondent a copy of all medical notes for the period from August 21 to December 11, 2006 and any prior medical notes that contain information that is arguably relevant to the reason for the applicant’s absence from work during that period.