Correia v. York Catholic District School Board, 2011 HRTO 2289

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Oscar Correia

Applicant

-and-

York Catholic District School Board

Respondent

DECISION ON REMEDY

Adjudicator: Mark Hart

Date: December 21, 2011

Citation: 2011 HRTO 2289

Indexed as: Correia v. York Catholic District School Board

WRITTEN SUBMISSIONS BY

Oscar Correia, Applicant ) Allison Taylor, Counsel

York Catholic District ) John W. Woon, Counsel

School Board, Respondent ) )

1This is a Decision on Remedy further to my Decision dated September 29, 2011 (2011 HRTO 1733), in which I found that the applicant had experienced racial discrimination and reprisal as a result of discriminatory factors that were considered by the respondent Board in relation to the applicant’s two applications for a Superintendent position.

2In particular, I found that, at some level, whether conscious or not, the stereotype of South Asian men as having an authoritarian management style played a role in the Board’s impression of the applicant’s leadership style as being “top down” or authoritarian and that this was a factor in relation to the Board’s consideration of his candidacy for a Superintendent position.

3I also found that the Board regarded the applicant’s raising of allegations of racial discrimination as a “card” that he would play whenever he didn’t get his way or when things didn’t turn out as he had hoped. By doing so, I found that the Board was effectively discrediting the applicant’s allegations as “manipulative ploys to gain a collateral benefit” which thereby could be “discounted and ignored”. I found that this not only de-legitimized the experience of the applicant but suggested that the applicant was being manipulative and untruthful. In this way, I found that the Board was attributing to the applicant by his raising of allegations of racial discrimination an impression or perception on its part that his perception was illegitimate, that he was being manipulative and untruthful, and ultimately that he was untrustworthy. I found that this attributed impression of the applicant was directly related or linked to his race, and was also a factor in denying him a Superintendent position.

4I further found that, in raising allegations of racial discrimination, whether perceived by the Board to be well-founded or not, the applicant was seeking to claim his right under the Code to be free from discrimination in employment. No investigation was conducted of the applicant’s allegations nor is there any evidence that the applicant raised these allegations in bad faith. In such circumstances, I found that for the Board to consider the raising of allegations of racial discrimination to be a negative indicator of the applicant’s leadership style and to incorporate this as a factor in the decision to deny him a Superintendent position also amounted to reprisal in violation of ss. 8 and 9 of the Code.

5At the same time, I found that the Board had provided evidence that the predominant reasons for granting the Superintendent positions to the successful candidates and not to the applicant were credible and non-discriminatory. I further found that, even if the Board had not formed a negative impression of the applicant’s leadership style based on discriminatory factors, the applicant still would have lacked the experience as an elementary school Principal that the Board regarded as being necessary for a successful promotion to a Superintendent position.

6As a result, I held that the applicant was not entitled to be instated into a Superintendent position or to compensation for lost earnings, on the basis that he would not have been granted this position even had the discriminatory factors not been considered. However, I held that the applicant was entitled to compensation for injury to dignity, feelings and self-respect and that I also would consider whether any future compliance remedies were appropriate.

7Accordingly, I invited submissions from the parties regarding the remedies that flowed from my findings. Written submissions were received in October 2011, with the final submissions received on October 27, 2011. While the respondent filed additional submissions in response to the applicant’s reply on the basis that the applicant’s submissions went beyond the proper scope of reply, I have not found it necessary to consider the respondent’s additional submissions.

8I also invited the parties to advise whether they believed that it was necessary to have an oral hearing regarding the remedial issues. No party sought an oral hearing on these matters, and so I have made my determination on the basis of the written submissions filed.

Compensation for injury to dignity, feelings and self-respect

9Pursuant to s. 45.2(1).1 of the Code, this Tribunal has the power to make an order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect (otherwise referred to as “intangible losses”).

10In calculating intangible losses, the Code requires a general evaluation of the circumstances of the Code violation and its effects to determine appropriate monetary compensation for injury to dignity, feelings and self-respect. In general terms, there are two main criteria involved in making this evaluation: the objective seriousness of the conduct at issue; and the effect on the particular applicant who experienced discrimination. Overall, cases with similar facts should lead to an equivalent range of such compensation, recognizing the unique circumstances in any particular case: see Arunachalam v. Best Buy Canada, 2010 HRTO 1880.

11In the instant case, the applicant seeks compensation for injury to dignity, feelings and self-respect in the amount of $15,000. The applicant relies upon the decision of the Ontario Divisional Court in ADGA Group Consultants v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), which upheld an award of $35,000 to an applicant as compensation for intangible losses. However, in my view, the Lane decision reflects the seriousness of the respondents’ discrimination against the applicant because of his bi-polar disorder and the significant impact upon him resulting from the termination of his employment. I find that the Lane decision is not particularly helpful or applicable to the circumstances of the instant case.

12The applicant also relies upon this Tribunal’s decision in De Abreo v. Humber Institute of Technology, 2010 HRTO 2404, in which the applicant was awarded $25,000 for intangible losses. That was a case where the applicant’s employment was terminated following her attempt to return to work after having surgery for cervical cancer. The adjudicator felt that an award at the higher end of the scale was appropriate on the basis that the applicant was in a fragile state as she commenced her return to work, that she was “blind-sided” and had the “rug … pulled out from under her” when she was confronted with unpalatable employment options by her employer, and that the respondent was a sophisticated employer that took an aggressive approach to altering the terms of her employment. Once again, I do not find the De Abreo decision particularly helpful or applicable to the circumstances here.

13The respondent takes the position that an award of compensation for intangible losses in the amount of $5,000 is more appropriate. The respondent cites a number of this Tribunal’s decisions in support of this proposition. In my view, the most apt of these cited decisions in this Tribunal’s decision in Mazzei v. Toronto District School Board, 2011 HRTO 400, in which I awarded $7,500 as compensation for intangible losses. Like the instant case, the Mazzei case also involved an individual who had applied for employment with a school board. In the Mazzei case, I found that the applicant’s disability-related needs had not been appropriately accommodated. However, I also found that the applicant had short-circuited the accommodation process by withdrawing from the competition. As a result, as in the instant case, I found that the applicant was not entitled to compensation for loss of his opportunity to compete for the position at issue.

14In the instant case, in my view, the circumstances justify an award that is somewhat higher than the award I made in the Mazzei case. In the Mazzei case, the applicant himself was partly responsible for the failure of the accommodation process. In contrast, in the instant case, I do not find that the applicant himself contributed to the discriminatory factors that were considered by the Board in relation to his candidacy for a Superintendent position. I also find that the discriminatory factors considered by the Board, even though they may not have impacted the end result, were objectively serious.

15I certainly take the respondent’s point that there were a number of things going on for the applicant that likely contributed to his distress and upset at not receiving a Superintendent position. He had recently lost his Superintendent position at the Waterloo school board. He also believed that he had been wronged in relation to not being granted a Superintendent position with the respondent Board, which I have found was predominantly due to his relative lack of experience as a Principal. He also continued to carry distress and upset from prior treatment at the respondent Board which he attributed to racial discrimination, which matters were found not to be within the scope of this proceeding.

16At the same time, in my view, I cannot parse this issue too finely. While there undoubtedly were other factors that contributed to the applicant’s overall feelings of distress and upset at not being successful in his candidacy for a Superintendent position at the respondent Board, I cannot disregard the impact upon the applicant of having discriminatory factors relating to his race influence the decision not to grant him such a position.

17In my view, in consideration of all of the particular circumstances before me, I believe that an award of $10,000 as compensation for injury to dignity, feelings and self-respect is appropriate, and I so order.

Future compliance remedies

18Pursuant to s. 45.2(1).3 of the Code, this Tribunal has the power to make an order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code. Pursuant to s. 45.2(2), this Tribunal may direct a person to do anything with respect to future practices, and can make such an order even if no such order was requested.

19The applicant seeks an order that the respondent Board’s Director of Education, senior management and trustees take a course on sensitivity to racial issues, which specifically addresses the nature of racial profiling and, in addition, focuses on the importance of ensuring that the demographic make-up of an institution reflects the community it serves.

20The respondent Board submits that a more appropriate remedy would involve the preparation of a “written reminder” pointing out that the phenomenon of unconscious racial discrimination through stereotyping ought not to influence decision-making at any point in the hiring process and stating that allegations of racial discrimination need to be taken seriously, investigated and appropriately addressed and ought not to be discounted or ignored. It is proposed that such a written reminder would be issued to all job interview teams. In order to better understand the written reminder, it is suggested that appropriate background material could be included to help explain what stereotyping means and a suggested process to investigate and address allegations of racial discrimination.

21In evidence before me is the Board’s Policy on Appointments to Academic Positions of Responsibility. Part of this policy requires “ongoing training of interviewers… in… bias-free interviewing practices [and] systemic barriers in employment”. The Board’s Director of Education was cross-examined by applicant’s counsel regarding the scope and frequency of this training. Based upon the Director of Education’s evidence, it did not appear to me that this training was “ongoing” as required by the Board’s own policy. Rather, it appeared that training of this nature had been provided to the Director, senior management and Board trustees at some point and then they were expected to know and apply this training as “veterans” of the interview process. It also did not appear to me from the evidence that this training captured a modern understanding of racism, or concepts such as unconscious racial bias and stereotyping and how these concepts might impact the assessment of a candidate.

22In my view, in its own policy, the respondent Board has expressed a commendable commitment to ongoing training for interviewers in relation to equity principles. However, it appears that this commitment has not been acted upon to the extent that may be necessary and has not focused on modern anti-racism principles. In my view, providing for training of interviewers that includes such a focus would assist the Board in ensuring future compliance with the Code.

23Accordingly, I hereby order the Board to retain an individual with expertise in anti-racism and bias-free interviewing practices to develop and deliver training on these topics to the Board’s Director of Education, senior management and trustees. This training is to be developed and conducted within six months of the date of this Decision. By this time, the Board shall provide to the applicant and file with the Tribunal the following: the curriculum vitae of the expert retained to develop and provide this training; the materials developed for this training; and confirmation that this training has been provided as required.

24I further direct that this training shall be provided on an ongoing basis to any new appointees to senior management positions at the Board or to newly elected trustees who are involved in interviews for positions of responsibility at the Board, and that a short refresher be provided every two years for continuing senior management members and trustees who are involved in interviews for positions of responsibility at the Board.

ORDER

25For all of the foregoing reasons, I hereby make the following Order:

a. The respondent shall pay to the applicant the sum of $10,000.00 as compensation for injury to his dignity, feelings and self-respect;

b. Post-judgment interest on this amount shall accrue at the rate of 2.0% per annum on any amount unpaid 30 days from the date of this Decision;

c. Within six months of the date of this Decision, the Board shall retain an individual with expertise in anti-racism and bias-free interviewing practices to develop and deliver training on these topics to the Board’s Director of Education, senior management and trustees. By this time, the Board shall provide to the applicant and file with the Tribunal: the curriculum vitae of the expert retained to develop and provide this training; the materials developed for this training; and confirmation that this training has been provided as required;

d. This training shall be provided on an ongoing basis to any new appointees to senior management positions at the Board or to newly elected trustees who are involved in interviews for positions of responsibility at the Board, and a short refresher shall be provided every two years for continuing senior management members and trustees who are involved in interviews for positions of responsibility at the Board.