Persaud v. Toronto District School Board, 2010 HRTO 1788

Human Rights Tribunal of Ontario

B E T W E E N:

Andrew Persaud Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Toronto District School Board Respondent

DECISION ON REMEDY

Adjudicator: Mark Hart Date: September 1, 2010 Citation: 2010 HRTO 1788 Indexed as: Persaud v. Toronto District School Board

WRITTEN SUBMISSIONS BY

Andrew Persaud, Complainant ) Martha MacKinnon, Counsel Toronto District School Board, Respondent ) Sheila MacKinnon and Gaynor Roger, Counsel )

Reasons for Decision

1This Decision addresses the written submissions on remedy in this proceeding, which were filed by the parties in accordance with the directions given in my previous Decision in this matter, 2009 HRTO 1728, as well as the further submissions received from the parties in accordance with my Decision, dated May 14, 2010, 2010 HRTO 1084.

Complainant’s decision re medical evidence

2In my May 14, 2010 Decision, I gave the complainant a choice as to whether he wished to continue to rely upon the medical evidence that he had tendered in support of his claim for remedy, in which case he would be required to make further medical disclosure, or whether he wished to discontinue his reliance upon such evidence, in which case no further medical disclosure would be required but I would not have regard to medical evidence in granting any remedy.

3On June 11, 2010, the complainant advised that he was declining production of notes taken during his private counselling sessions with his psychologist, which the Tribunal confirmed that it understood to mean that the complainant had decided to no longer rely upon medical evidence in support of his claim for compensation.

4As a result, in accordance with what I stated in the May 14, 2010 Decision, I will not have regard to the affidavit of the complainant’s psychologist or any information of a medical nature included in the complainant’s own affidavit in support of his claim for compensation for injury to dignity, feelings and self-respect. Also in accordance with this Decision, I will not consider the complainant’s claim for compensation for his visits to his psychologist.

Compensation for injury to dignity, feelings and self-respect

5The complainant claims an award of compensation for injury to dignity, feelings and self-respect in the amount of $80,000.00. The submissions filed on the complainant’s behalf stress the significant power imbalance between him as a 16 year old racialized boy and the teachers and administrators of the respondent Board who dealt with him as adults.

6The complainant relies upon the findings in my Decision that the respondent’s representatives placed disproportionate blame on him for some actions, and reacted to him in a disproportionately negative manner in some respects. The complainant also stresses my finding that the respondent’s representatives had engaged in a process of “othering”, whereby a racialized person is viewed as an outsider and shunned or banished, and that they over-reacted by transferring the complainant to another school without involving him or his mother in that decision.

7It is submitted that the complainant was humiliated by his transfer to another school, and felt ostracized and rejected. The complainant submits that his particular vulnerability as a student of the school board that discriminated against him and the power held and exercised by that board must remain a guiding fact in my choice and award of remedy.

8In response, the respondent emphasizes that the issue relating to the complainant’s transfer was only one of a myriad of alleged discriminatory acts addressed in my Decision, and that the complainant was unsuccessful in establishing the many other allegations that he raised. The respondent submits that if the complainant experienced humiliation or a feeling of ostracism or rejection, this likely had more to do with the serious misconduct in which he was found to have engaged, the 20 day suspension which was found not to have been in violation of the Code, and the many other actions of the respondent’s representatives about which the complainant raised allegations but was unsuccessful.

9The respondent also points to the limited nature of the Code violation that I found, and submits that any compensation I may award the complainant should be diminished on the basis that any injury to his dignity, feelings or self-respect is attributable to a number of causes, only one of which was found to be in violation of the Code.

10My task in assessing any quantum of compensation to be awarded to the complaint is to focus on the impact on him of the respondent’s actions that were found to be in violation of the Code. While the respondent has submitted that I should consider that my finding of discrimination was based on circumstantial evidence without direct evidence that race or colour were factors in the respondent’s transfer decision, it is not the nature or type of discrimination found so much as the impact on the complainant that is the central focus in fashioning a remedy.

11In the instant case, I need to consider solely the impact on the complainant of the one aspect of the respondent’s conduct that I found to be in violation of the Code, namely the decision to involuntarily transfer the complainant from Vaughan Road Academy (“VRA”) to Oakwood Collegiate Institute (“Oakwood”). In assessing this impact, I necessarily need to operate on the basis that all other actions taken by the respondent which were not found to be in violation of the Code still would have occurred, including the finding that the complainant had engaged in serious misconduct, the 20 day suspension, the removal of the complainant as President of the Student Council and from his Yearbook activities, and the natural consequences of these actions on the complainant and how he was regarded.

12In my view, one useful way of assessing the impact of the transfer decision on the complainant is to compare the impact of being transferred to Oakwood with what his life would have been like had the transfer decision not been made and had he remained at VRA. I have no doubt that being transferred out of one’s school, especially when a student is entering into his final year and has developed many friendships and connections, is difficult. And I also accept that the impact on the complainant was intensified as a result of the involuntary nature of the transfer, and by the “othering” and paternalism that I found were involved in the transfer decision process and upon which my finding of racial discrimination was based.

13However, I need to assess this impact on the complainant in the context of what his life would have been like had he remained at VRA. To say that the complainant was held in high esteem by teachers and other students and that he played a significant role in the extra-curricular life at this school would be an understatement. In my view, for the complainant to have returned to that school after having been found to have engaged in serious misconduct worthy of a 20 day suspension would have been humiliating and devastating. His leadership roles as President and with the Yearbook would have been taken away, and he would have been subjected to a much greater degree of oversight and supervision while at the school. Having been found to have betrayed the trust of his teachers, it would have been very difficult for the complainant to have regained this trust.

14I recognize that there is an inherent value in not being exposed to discrimination, and that awards of this kind of compensation should not be so low as to amount to a licence fee for discrimination. However, the quantum of compensation awarded must also be proportional to a true and objective assessment of the harm caused. In my view, in this case, the impact upon the complainant is largely attributable to his own actions of serious misconduct and the resulting response by the respondent board and its representatives, and cannot properly be attributed to the transfer decision in isolation.

15In my view, an award of $5,000.00 is appropriate compensation for the impact of the transfer decision in recognition of the complainant’s inherent right not to experience discrimination.

Claims for special damages

16The complainant claims $1,100.00 as the cost of having to re-take two credit courses at a private school in the summer of 2006. He submits that the respondent’s decision to forcibly transfer him to Oakwood resulted in his experiencing significant difficulties in concentrating on his studies, which caused him to have to take these private school courses.

17In fact, the evidence before me indicates that the complainant was struggling with his high school studies at VRA prior to his transfer to Oakwood, and I do not find that the transfer decision was a significant contributing cause of his lack of achievement at Oakwood. Accordingly, I decline to award these damages.

18The complainant also claims $683.40 as the cost of public transportation to attend Oakwood, which was farther away from where he lived. The complainant states that as a result of the timing of his transfer to Oakwood, he was no longer eligible for the student rate and thus had to pay the full adult fare. This is disputed by the respondent, which submitted an e-mail from a TTC customer service representative stating that it did not have a policy that would have prevented the complainant from obtaining the student discount. The respondent also raises the fact that the applicant did not attend Oakwood on all of the school days for which he is claiming, and submitted his attendance record from that school year.

19I am prepared to award these damages to the complainant on the basis that his transportation costs are a direct result of the transfer decision. However, I will only grant compensation on the basis of the student discount ticket rate that applied at the relevant time, and for the actual number of days that the complainant was in attendance at Oakwood. The complainant states that between October 5, 2005 and March 31, 2006, there were 111 school days. During this time, the complainant’s attendance record shows the he was absent for 15 full days, so I will base my award on 96 days. The student discount ticket price at the relevant time was $1.33, so round trips for those 96 days would have cost the complainant a total of $255.36. During the period from April 1, 2006 until June 23, 2006, there were 57 school days, for 6 of which the complainant was absent. The student discount ticket price during this period was $1.40, for a total cost of $142.80. Accordingly, I will award the complainant special compensation for his transportation costs in the amount of $398.16.

Interest

20The complainant also has claimed pre- and post-judgment interest on the amounts awarded.

21I decline to award pre-judgment interest on the amount I have awarded as compensation for injury to dignity, feelings and self-respect, as I have based this award on the impact of the discrimination on the complainant up to the present day. I exercise my discretion to decline pre-judgment interest on the special compensation awarded, as the amount of such interest would be negligible.

22I will award post-judgment interest at a rate of 2.0% per annum in line with the Courts of Justice Act, to be applied to any amounts outstanding more than 30 days after the date of this Decision.

ORDER

23For all of the above reasons, I make the following order:

a. The respondent shall pay to the complainant the sum of $5,000.00 as compensation for injury to dignity, feelings and self-respect;

b. The respondent shall pay to the complainant the further sum of $398.16 as special compensation for transportation costs; and

c. Post-judgment interest shall be applied at a rate of 2.0% per annum to any amounts outstanding more than 30 days after the date of this decision.