Ramoutar v. Toronto Community Housing Corporation, 2010 HRTO 324

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Keith Ramoutar

Applicant

-and-

Toronto Community Housing Corporation

Respondent

DECISION

Adjudicator: Mark Hart

Date: February 11, 2010

Citation: 2010 HRTO 324

Indexed As: Ramoutar v. Toronto Community Housing Corporation

APPEARANCES BY

Keith Ramoutar, Applicant ) On his own behalf

Toronto Community Housing ) Michelle Wong, Counsel

Corporation, Respondent ) )

1In my initial decision on remedy in this matter, 2009 HRTO 605, I addressed the written submissions filed by the parties in relation to the remedies claimed by the applicant and indicated certain areas where further evidence was required. Following the issuance of that decision, hearing days were held on July 27 and December 8, 2009, to hear evidence and submissions on the outstanding remedial issues.

2While some matters were addressed in my initial decision on remedy, I will briefly review all remedies requested by the applicant and indicate my final disposition on these requests in light of the evidence and submissions I have now heard.

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”.

4As stated in my initial decision on remedy, I 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 a Handyworker position at a different location. The dispute concerning events and issues from and after December 11, 2006, was deferred pending determination of an ongoing labour arbitration proceeding, which has now been resolved. As a result, the maximum time period for which the applicant can seek compensation in the context of this 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, as this is the latest point at which the applicant would have been able to continue in an Acting Superintendent role even had he remained at Regent Park.

6In my initial decision on remedy, I raised the question as to whether this under-estimated the applicant’s losses, on the basis that the applicant may have had opportunities to work in an Acting Superintendent position at CHU #23 had he been able to work during the period from October 12 to December 11, 2006. On the basis of the evidence received by me at the hearing on remedy, I am satisfied that no such opportunities would have existed for the applicant, as the Superintendent at CHU #23 was not absent from work during this period of time. Accordingly, I accept the respondent’s position that the applicant’s claim for lost wages in relation to being taken out of an Acting Superintendent position should be cut off as of October 12, 2006.

7The 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. The amount of this differential has not been disputed.

8Accordingly, I accept the respondent’s submission that the applicant should be awarded $1,032.72 for lost wages.

Overtime

9The 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.

10As stated in my initial decision on remedy, the 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.

11The applicant also is entitled to compensation for any overtime he would have worked following his transfer from Regent Park to CHU #23 up until the time he actually was able to return to work on December 11, 2006. While there was some dispute as to whether the applicant’s overtime entitlement should be based on him working at Regent Park as opposed to CHU #23, the applicant ultimately elected to have his damages assessed on the basis that he would have been working at CHU #23.

12At CHU #23, there was a total of 12.5 hours of overtime worked as between the two Handyworkers at that site, with one of those Handyworkers not having worked any overtime. I assess the applicant’s damages for lost overtime on the basis that the one Handyworker declined overtime, such that the total overtime would have been divided between the applicant and the other Handyworker, resulting in 6.25 overtime hours being allocated to the applicant. At 1.5 times base salary, this would result in damages assessed to the applicant at $39.36 per hour for a total of $246.

13Accordingly, I award the applicant the total sum of $324.72 for lost overtime.

Sick Leave Benefits

14The 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.

15As I review in detail below in the context of the discussion of compensation for the infringement of the Code-protected rights, I find that the reason the applicant was absent from work during this period was due to stress-related anxiety and depression. I further find that this condition, while resulting in part from the transfer decision, also was caused by the applicant’s marital issues and other workplace issues which were not found to amount to any Code violation. I find that the conduct found to be in violation of the Code represented 40% of the reason for the condition that caused the applicant to be absent from work.

16I find that this is an appropriate percentage factor to apply to the award of sick benefits, as representing the extent to which the applicant was required to use this sick time for Code-related reasons as opposed to reasons that don’t relate to a finding of a Code violation.

17Accordingly, I order that 32 days be restored to the applicant’s sick leave bank.

Psychotherapy and Medical Expenses

18The applicant has requested payment for all psychotherapy costs from October 2007 to the present day and for ongoing psychiatric support for the duration of time required to make him whole. As indicated in my previous decision on remedy, these claims pertain to the events and issues from and after December 2006 which were deferred pending the labour arbitration proceeding and are beyond the scope of my remedial order.

Other Expenses

19The 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.

Request for Reinstatement

20The applicant requested 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”.

21Neither of these requested remedies are within the scope of my remedial order in this proceeding. At the time relevant to this stage of the proceeding, the applicant had returned to work on December 11, 2006. Subsequent events were the subject of the labour arbitration proceeding that has now been settled.

Monetary Compensation for Injury to Dignity Feelings and Self-respect (“General Damages”)

22The 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 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.

23The respondent has made extensive submissions on this issue and takes the position that a substantial award 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.

24The applicant’s evidence at the hearing on remedies is that he was a person in a high profile position at the respondent corporation, primarily through his work as a union representative, and he supported the respondent’s policies on diversity and anti-discrimination as a member of a racialized community. He testified that his dignity, pride and self-respect were taken away from him as a result of the respondent’s actions, which was exacerbated because he couldn’t figure out why he had been moved from Regent Park. He notes that it took pursuing his human rights complaint over the course of several years and sitting through several days of evidence at the hearing before this Tribunal finally confirmed for him that he had experienced racial discrimination.

25The evidence indicates that the applicant’s transfer out of Regent Park was the precipitating factor that led to his absence from work for the period from August 21 to December 11, 2006. I heard evidence from the applicant’s family doctor, Dr. Kassel, that the applicant was experiencing stress-related anxiety as a result of what had occurred in the workplace that caused him to be unable to work during this period. Dr. Kassel’s notes from this period record that the applicant was experiencing frustration, anger, anxiety, stress, difficulty sleeping and concentrating, headaches, and tension. In October 2006, Dr. Kassel prescribed an anti-depressant due to persisting headaches, sleeplessness and other symptoms of anxiety and depression.

26Dr. Kassel also referred the applicant to several psychiatrists, although there was a delay in the applicant being able to make an appointment with several proposed referrals. The applicant finally saw Dr. Caplan on November 21, 2006, who diagnosed the applicant as having a degree of anxiety and depression and felt that the applicant would respond to a low dose of a sedating anti-depressant. Dr. Caplan’s reporting letter at the time states that the applicant’s problems were probably related to work, which is a field where he says that medical interventions have little impact.

27There was some suggestion in Dr. Kassel’s evidence that the applicant was suffering from post-traumatic stress disorder at this time. However, when asked by me about Dr. Caplan’s diagnosis, Dr. Kassel agreed that the applicant at this time was suffering from anxiety and depression and not post-traumatic stress disorder.

28The respondent raised several issues with Dr. Kassel’s evidence. First, Dr. Kassel has a record of a visit by the applicant on August 15, 2006, which is prior to the transfer. At this visit, the applicant reported decreased sleep, stress and frustration that were related to marital difficulties that he was experiencing at the time. Dr. Kassel agreed that no issues were raised by the applicant about his work situation at that time. In cross-examination, Dr. Kassel testified that the applicant’s marital difficulties had resolved by the time of the applicant’s next visit on September 8, 2006, although he conceded that his notes make no record of this. I find that the applicant’s marital issues did contribute to some extent to the stress, anxiety and sleeplessness that he was experiencing during this period.

29The respondent also noted that Dr. Kassel’s evidence was based upon what he was told by the applicant and that the work situation and problems as reported by the applicant were not restricted to the transfer issue. For example, Dr. Kassel’s notes of the applicant’s September 8, 2006 visit (which is the applicant’s first visit subsequent to the commencement of his medical leave) record the work issues as including that the applicant was overlooked yet again for a position and was experiencing frustration about his pay not having been entered, neither of which issues were found to be discrimination in violation of the Code.

30This is a theme that counsel for the respondent also explored in her cross-examination of the applicant, in which the applicant confirmed that his stress and frustration were related to a number of work-related issues, including the issues giving rise to the filing of his grievance in 2004, the comments alleged to have been made by Ms. Milana and others, the applicant’s failure of the oral examination for the Superintendent position, issues with not getting his paycheque, and issues with his WSIB claim. The applicant agreed that all of these issues ran right into the point in time in August 2006 when he was transferred out of Regent Park. While the applicant’s evidence is that the most damaging workplace issue was his transfer out of Regent Park after 20 years, I find that the applicant nonetheless also was experiencing stress and anxiety arising out of the myriad of other workplace issues raised in this proceeding about which no violation of the Code was found.

31As a result, while the evidence is clear in my view that the applicant suffered from stress-related anxiety and depression during the period from August 21 to December 11, 2006, the evidence also indicates that these conditions were not solely attributable to the conduct that formed the basis of my findings of violations of the Code but also were attributable to the applicant’s marital issues and to other workplace issues which were not found to amount to any Code violation.

32This raises the issue as to how damages for injury to feelings, dignity and self-respect are to be assessed where there are mixed causes contributing to the applicant’s condition, some of which pertain to a Code violation and others of which do not. In my view, one appropriate approach is to assess a gross quantum of general damages on the basis of the evidence relating to the applicant’s condition during the relevant time, and then use a percentage factor to apportion these damages to the extent that they relate to a Code violation.

33Using this approach, I find that a gross quantum of damages based upon the evidence relating to the applicant’s condition during the August to December 2006 period would be $20,000. I make this assessment on the basis of not only the applicant’s evidence about the impact upon him, but also on the basis of the medical evidence of Dr. Kassel and Dr. Caplan that supports that the applicant was experiencing stress-related anxiety and depression during this period.

34However, as reviewed above, I have found that the applicant’s condition, in addition to resulting from the transfer decision, also was caused by the applicant’s marital issues and other workplace issues which were not found to amount to any Code violation. As a result, I find that an appropriate percentage factor to apply to the gross quantum of assessed general damages is 40%, which represents the extent to which I find that the Code violations were responsible for the applicant’s condition during the relevant period.

35As a result, I award the applicant the sum of $8,000 as compensation for injury to feelings, dignity and self-respect. As this assessment of is attributable to the period from August to December 2006, I find that it is appropriate to award pre-judgment interest on this sum from the mid-point of the period.

Other Requests by the Applicant

36The 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”.

37As stated in my initial decision on remedy, I 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.

38I 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.

Interest

39The applicant has claimed pre-judgment and post-judgment interest. This claim is appropriate and has been included in the order below.

Public Interest Remedies

40As stated in my initial decision on remedy, while 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).

41The 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.

42The 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.

43Upon 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.

DEFERRAL OF PART OF APPLICATION

44In my decision dated December 11, 2008, 2008 HRTO 391, I deferred consideration of all allegations raised in the Application pertaining to events from and after the applicant’s return to work in December 2006, in light of an ongoing labour arbitration proceeding that was considering these issues.

45At the hearing on December 8, 2009, I was advised that the arbitration case had been settled and that it was a specific term of the settlement agreement that the applicant would not be proceeding with allegations subsequent to Jan 1, 2007. As a consequence of this settlement, this means that remaining allegations in the Application will not be reactivated. Accordingly, this Decision finally disposes of the Application in its entirety.

ORDER

46For all of the foregoing reasons, I hereby make the following order:

a. The respondent shall pay to the applicant the sum of $1,032.72 for lost wages together with pre-judgment interest at a rate of 4.5% per annum from the mid-point of the period (September 13, 2006) to date in the total amount of $158.78;

b. The respondent shall pay to the applicant the further sum of $324.72 for lost overtime together with pre-judgment interest at a rate of 4.5% per annum from the mid-point of the period (October 21, 2006) to date in the total amount of $48.71;

c. The respondent shall pay to the applicant the further sum of $8,000.00 as compensation for injury to feelings, dignity and self-respect, together with pre-judgment interest at a rate of 4.5% per annum from the mid-point of the period (October 21, 2006) to date in the total amount of $1,200.00;

d. The respondent shall restore 32 days to the applicant’s sick leave bank;

e. Post-judgment interest at a rate of 2.0% per annum shall apply on all amounts owing from 30 days following the date of this Decision; and

f. The Application is now disposed of in its entirety.