HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bonnie Couchie
Applicant
-and-
Her Majesty the Queen in Right of Ontario as Represented by the Minister of Municipal Affairs and Housing and The Consulting Matrix Inc.
Respondents
DECISION
Adjudicator: Jennifer Scott
Indexed as: Couchie v. Ontario (Municipal Affairs and Housing)
APPEARANCES
Bonnie Couchie, ) Amy Britton-Cox,
Applicant ) Counsel
Minister Municipal Affairs and Housing, ) Sara Blake,
Respondent ) Counsel )
The Consulting Matrix Inc., )
Respondent ) Cindy Cohen,
) Counsel
introduction
1This case involves an allegation of discrimination against the Minister of Municipal Affairs and Housing (“MMAH or the Ministry”) and The Consulting Matrix Inc. (“Consulting Matrix”) regarding the termination of the applicant’s contract to provide Aboriginal relations training.
2MMAH contracted with Consulting Matrix to provide Aboriginal relations training to a group of Ontario government ministries. The contract provided that the training was to be delivered by teams of two trainers: one Aboriginal and one non-Aboriginal. The applicant was subcontracted by Consulting Matrix to act as the Aboriginal trainer in northern Ontario.
3After the first training session, MMAH directed Consulting Matrix to terminate the applicant’s contract. MMAH states it gave this direction solely because of the applicant’s poor performance at the first training session. Consulting Matrix terminated the applicant’s contract at the Ministry’s direction.
4The applicant believes her race was a factor in the Ministry’s decision to direct the termination of her contract. She bases this belief, in part, on the fact that the contract of her non-Aboriginal counterpart was not terminated even though he too performed poorly at the training session. The applicant claims Consulting Matrix discriminated against her when it followed the Ministry’s direction.
5The central question before me is whether the applicant was treated differently from the non-Aboriginal trainer and whether this differential treatment was influenced by her race.
6The non-Aboriginal trainer did not participate in the hearing. Indeed, there is no indication that he even knew about the Application. The parties agree that in these circumstances, it would be unfair to identify the non-Aboriginal trainer in this decision. Accordingly, the non-Aboriginal trainer is identified as A.B. in this decision. I am grateful to the parties for raising this issue with me.
BACKGROUND
7The applicant is an Aboriginal person and a member of the Pic River Reserve. She has a native studies diploma from Trent University (1990-1991), an honours Bachelor of Arts degree in indigenous learning from Lakehead University (1993-1996) and a masters’ degree in inter-disciplinary humanities from Laurentian University (1996-1997). She has been retained by the Ministry of Natural Resources as a native values researcher for many years and has taught in the area of native studies for Sault College (native law), Confederation College (contemporary native issues), Algoma University (Aboriginal law and politics) and Lake State University (Aboriginal history and culture). She has spoken on numerous Aboriginal issues including meaningful consultation, Aboriginal tax exemption, mapping Aboriginal values and working with First Nations.
The Contract
8On February 25, 2008, Consulting Matrix submitted a proposal to MMAH to provide introductory Aboriginal relations training to the provincial land and resources ministries. The proposed training would take place in 19 sessions in Thunder Bay, Sudbury, London, Toronto and Kingston during the months of March, April, May and June, 2008. The program was based on an Introduction to Aboriginal Engagement course developed by the Ministry of Natural Resources.
9In the proposal, Consulting Matrix stated:
It is important to the success of this training that the instructors be knowledgeable about Aboriginal relations and relevant Ontario history; understand the challenges facing government and First Nations; and are experienced practitioners in this field and skilled trainers and facilitators.
The Matrix team consists of seasoned professionals who are experienced Aboriginal relations practitioners with an understanding of the challenges and benefits of effective relationships between the Crown and Aboriginal communities. They are skilled presenters with subject knowledge depth and they bring the richness of their experience to each session.
10The training program was to be delivered by Aboriginal and non-Aboriginal trainers. The Aboriginal trainer was to provide an Aboriginal perspective and the non-aboriginal trainer was to provide the Crown’s perspective. Attached to the proposal were the biographies for the proposed trainers. The applicant’s name was not proposed as a trainer.
11A.B.’s biography was included in the proposal. It is not reproduced in this decision because it would likely identify him. It is fair to say that A.B. has an extensive background working with Aboriginal people and a solid understanding of Aboriginal issues.
12Karen Wishart, one of the partners of Consulting Matrix, was responsible for ensuring the quality of the training. Her partner, Carmen Jones, is an Aboriginal person and was responsible for providing leadership to the Aboriginal trainers. Karen Wishart testified at the hearing. Carmen Jones did not.
13On March 7, 2008, Consulting Matrix and MMAH entered into an agreement for the provision of Aboriginal relations training. Under the agreement, Consulting Matrix agreed not to subcontract any part of the training without the prior written consent of MMAH. The agreement contained an express provision that there was no contractual relationship between Ministry and any of Consulting Matrix’s subcontractors.
14On March 25, 2008, Karen Wishart advised Jeanine McNaughton of MMAH that Larry Jourdain, one of the Aboriginal trainers for Northern Ontario (Thunder Bay and Sudbury), was unable to conduct the training because of his teaching schedule to the end of April. Ms. Wishart suggested replacing Mr. Jourdain with the applicant. The applicant had attended the three-day train the trainer session put on by Consulting Matrix and Ms. Wishart considered her qualified to conduct the training.
15On March 26, 2008, Ms. Wishart provided the applicant’s biography to Jeanine McNaughton. It is reproduced below:
Bonnie Couchie is Anishnabe from the Pic River First Nation. She has a Master degree in Inter-disciplinary Humanities from Laurentian University, an honours degree from Lakehead University and a Native Studies Diploma from Trent University. She has been a professor at Confederation College, Algoma University, Lake State University and Sault College, teaching in subjects such as Aboriginal History and Culture, Contemporary Native Issues and Aboriginal Law and Politics.
In her consulting practice, Bonnie is well known as a Native Values Researcher and for her work mapping Aboriginal values. She is the author of “Process and Challenges of Mapping Aboriginal Values”, written for the Ministry of Natural Resources, and has worked with both government and First Nations on mapping projects. She also conducts research and analysis on the Indian Act; for example, developing and delivering workshops on “Understanding and Retaining Our Rights: A Workshop on Aboriginal Tax Exemption”. She has volunteered in her community to help develop an approach to meaningful consultation and has been a guest speaker on several occasions at local schools.
16On March 26, 2008, the applicant’s biography was provided by Ms. McNaughton to Karen Smith, the Manager of Municipal Programs and Education Branch with the Ministry. On that same day, Ms. Smith provided her written approval for the applicant to be used as a trainer for the north. The acceptance of the applicant, and indeed of all of the trainers, was based on the biographies provided by Consulting Matrix.
17On April 24, 2008, the applicant and Consulting Matrix entered into an agreement by which the applicant agreed to prepare for and deliver the training. The agreement stated the applicant would be paid for observing a training session, participating in the train the trainer program, preparing for the training and delivering the training. The agreement stated there was no employment relationship between Consulting Matrix and the applicant and no guarantee of work or income.
18The applicant and A.B. were scheduled to conduct six training sessions, three in Thunder Bay and three in Sudbury. The Thunder Bay sessions were scheduled for May 13, June 3 and June 19, 2008.
The Content of the Training Program
19An overview of the training was provided to various MMAH staff on May 6, 2008. The objective of the training was to provide staff in the participating ministries with an opportunity to receive comprehensive foundation training in Aboriginal Affairs and Relations – the Aboriginal peoples, culture and history in Ontario; an understanding of treaty rights, claims and assertions and Aboriginal relations; and an introduction to engagement with Aboriginal peoples.
20The training was divided into three substantive areas: History, Present Day and Engagement. The training was delivered through a slide presentation of 153 slides. The trainers were provided with comprehensive and detailed speaking notes for each slide. In the introduction to the training, the participants were advised that two perspectives were being provided: an Aboriginal perspective and the Crown perspective.
21The History section was divided into two parts: Aboriginal culture and traditions before contact with Europeans; and the history of the relationship between the Crown and Aboriginal peoples. The Aboriginal trainer covered the first section and the non-Aboriginal trainer addressed the second section.
22In the introduction to the topic of Aboriginal cultures and traditions, the notes for the Aboriginal trainer stated the following:
The trainer’s notes in this section are not scripted in the way that they are in the rest of the presentation, so that the Aboriginal trainer can use their own words and approach. The notes do include content that should be covered.
23The introduction also stated the following points were to be made by the Aboriginal trainer:
the trainer could not speak on behalf of Aboriginal people;
it is important to show respect for other Nations;
the trainer could only speak about what elders and traditional teachers have taught the trainer and information that Aboriginal scholars have written and told the trainer;
if participants wanted to know more about ceremonies, they should speak to the trainer afterwards.
24Part two of the History section dealt with the relationship between Aboriginal peoples and the Crown. The speaking notes for the introduction to this section stated the following:
This next section focuses on the history of the relationship between the Crown and Aboriginal peoples, and it’s important to note that it is from the Crown’s perspective. We discuss historical facts and events that are important to the Crown. Aboriginal people might not dispute the content – and they haven’t – but they would have different perspectives, and they would speak also of other events and stories.
25The Present Day section was divided into two parts. The first part dealt with the Crown’s perspective about the present day relationship and the importance of the legal underpinning of the relationship. The second part provided an overview of Aboriginal communities today. The non-Aboriginal trainer presented the first part. The Aboriginal trainer presented the second.
26Included in the first section were the duties and obligations of the Crown, which included a brief review of the Crown’s duty to consult. The duty to consult was explained on one slide.
27The final section of the training dealt with how to engage with Aboriginal communities. Seventeen of the 153 slides addressed this topic, approximately eleven percent of the training material. The learning outcomes for this section were:
(…) the Participants will understand how developing and maintaining effective relationships with First Nations over the longterm can contribute to meeting the Ministry’s objectives; be familiar with some mechanisms and initiatives that have been successful in engaging with First Nations; know where to look for further information and guidance.
This section was covered jointly by both trainers.
28The non-Aboriginal trainer was given more material to cover in the training because it was recognized that the Aboriginal trainer had a more difficult job because of the demographics of the participants attending the training. The Aboriginal trainer was often the only Aboriginal person in the room.
May 13, 2008 Training Session
29The applicant and A.B. delivered their first training session on May 13, 2008 in Thunder Bay. Twenty people attended the training. That day or the next day, a participant at the training, Susan Fraser-Wilson, spoke to Ian Smith, the regional director of the northwestern services office of the MMAH, and complained about the applicant’s performance at the training. Two other staff also spoke to Mr. Smith about the applicant’s presentation.
30The staff told Mr. Smith the applicant was not a good presenter, was not organized, seemed flippant, was poor in answering questions, was “spaced out”, was not coherent and wondered whether she was taking drugs. The staff told Mr. Smith that although A.B. knew the material, he did not have a lot of experience with the material he was presenting. They said A.B. tried to address issues that arose during the training and engaged in discussion, but lacked knowledge about Aboriginal culture. Staff reported that A.B. was stiff and uncomfortable with the material.
31Ian Smith called Karen Smith on May 14, 2008 and relayed the feedback from his staff. Mr. Smith wanted the applicant terminated. Mr. Smith had moderated a session in September 2007 where the applicant presented and the criticisms he heard from his staff were similar to his experience in 2007. Karen Smith took notes of what Ian Smith told her about the presenters at the training, the content of which is reproduced below:
Bonnie Couchie:
terrible drug abuse?
uncooperative - previous experience last year was bad
blitzed
rattled on
couldn’t answer questions
grouchy at the end
A.B.:
OK but a bit dated; OK (just)
Read the slides
Knew treaty 3
Applicant’s Termination
32On May 14, 2008, Ms. Smith contacted Ms. Wishart and relayed the Ministry’s desire to terminate the applicant’s contract. Ms. Wishart asked to delay the decision until formal evaluations of the training were received.
33On May 22, 2008, Ms. Smith forwarded a summary of the evaluations to Ms. Wishart. Eighteen participants completed evaluations. Thirty-three percent rated the course as “very good”, thirty-three percent rated it satisfactory and thirty-three percent rated it as very poor. The Ministry’s standard for training is 85 percent in the “very good” category. Ms. Smith advised Ms. Wishart that the consensus among the directors at MMAH was they needed a replacement for the applicant. Ms. Smith advised Ms. Wishart that some refresher work and presentation tips were needed for A.B.
34The evaluations contained the following comments (reproduced directly) about the applicant and A.B.:
Bonnie Couchie was a poor presenter (did not know her material). A.B. was satisfactory. The presenters had an obvious bias
Bonnie Couchie was a very poor presenter. She was ill prepared to respond to basic questions, and had difficulty on occasion reading the slides. A.B. was somewhat better; however, also not entirely familiar with the slides
Bonnie was good and interesting. Was this the first time A.B. saw the material?
This survey would have been marked a little higher, had Bonnie not presented.... if you can even call it presented. Bonnie has a very hard time expressing herself and was very poorly prepared. A.B. on the other hand did better
The presenters were organized and knew the information, however I don’t feel the information presented will necessarily pertain to my job
Any direct questions about how and whom to approach with respect to Duty to Consult were very vague .... no clear direction as to how provincial employees can do their jobs
Bonnie C did not understand the material she was presenting and couldn’t even read or understand the material that she was presenting. Also could not answer even simple questions. A.B. was better, but appeared to be bias, and not objective when presented with solutions to the various issue around consultation
Presenter was very reluctant to allow discussion about consultation process to proceed. This is what people wanted to learn
Again the presentations and presenters did a good job.... the information and content what I was expecting
Found A.B. to be far too mono-tone. Could not really show any enthusiasm. Just went through the motions
Get better presenters that know the material and are open to suggestions
Pre screen presenters to ensure they have knowledge about the subject matter. Similarly with the other exercises. I had to guess about the Indian Act. I never read it! How would I know, if certain terms were removed in 1951? The presenters did not even know
Pull the plug on Bonnie
Get different speakers. Bonnie Couchie is not a good speaker. I have now been to three sessions that she has spoken at and she repeats the same storey each time. She is dis-organized, slow moving... doesn’t “have it together”. She appears to be a little spaced out
There was an individual from MTO who was far more capable at answering questions than either of the presenters
Presenters should be able to pronounce words on slides, and have enough awareness to not use expressions like “bottom of the totem pole”
The First Nation presenter seemed a bit too defensive, a bit confrontational and even somewhat bitter at times.
35Comments on the training itself were also contained in the evaluations:
The historical context. Although I found it biased toward native culture, there was little discussion about the French and English coming to the new world, dates, names of real people
Have some First Nations Elders and Leaders come and talk to us how they would like to be consulting (without all the whining about all the past historical injustices that have occurred, so that we all can move forward constructively, with mutual respect)
36On May 22, 2008, Ms. Wishart terminated the applicant’s contract on the direction of the Ministry.
Investigation by Consulting Matrix
37On May 23, 2008, Ms. Wishart wrote to Ms. Smith and asked to speak with her the following Monday. Ms. Wishart stated the Thunder Bay evaluations were very polarized, with both very negative and very positive comments. She believed there was something more to understand. On May 26, 2008, Ms. Smith spoke to Ms. Wishart. Ms. Wishart advised Ms. Smith that she would like to speak with Ms. Fraser-Wilson.
38On May 26, 2008, Ms. Wishart spoke to Ms. Fraser-Wilson about the applicant’s performance at the May 13, 2008 training. Ms. Fraser-Wilson stated the applicant had difficulty reading the slides and appeared unfamiliar with the material. She described the applicant’s demeanour as “disconnected” and felt the cultural perspective that the applicant was to bring was not evident. Ms. Fraser-Wilson advised Ms. Wishart that the applicant was reluctant to engage in any discussion about consultation and described what she believed was an inflammatory comment about consultation by the applicant: “if you want to get a response, tell them you are imposing a process on them”.
39On June 3, 2008, Ms. Wishart met with Ian Smith and Susan Fraser-Wilson. Mr. Smith informed Ms. Wishart about his experience with the applicant in September 2007. Ms. Fraser-Wilson described her experience with the training on May 13, 2008. Ms. Wishart stated Ms. Fraser-Wilson said the applicant was ill-prepared at the training and “spacey”, a word Ms. Fraser-Wilson denied using. Mr. Smith advised Ms. Wishart that on the basis of his experience with the applicant in 2007 and his staff’s experience on the May 13, 2008 training, there were performance problems with the applicant.
40On June 11, 2008, Ms. Wishart provided a summary of the feedback from the May 13, 2008 evaluations to the applicant.
41Ms. Wishart spoke to the applicant to try to resolve the matter. She offered to retain the applicant to conduct research that would require at least five consulting days to complete. Ms. Wishart believed this would give her the opportunity to work directly with the applicant for the purpose of future references and would go some way towards restoring the applicant’s reputation. The applicant refused this offer because she believed it would displace time to find work with other employers who had not terminated her for unjust reasons.
Coaching of A.B. by Consulting Matrix
42Ms. Wishart, at the Ministry’s direction, provided coaching to A.B. She used the evaluations obtained by the Ministry to capture what improvements were needed. Ms. Wishart attended the next training session on June 3, 2008 and provided feedback to A.B. on how he could become more familiar with the content of the material and tips for delivering the training. Ms. Wishart also spent a couple of hours on the phone with A.B.
43Ms. Wishart testified that she would have handled things differently from the Ministry. She would not have terminated the applicant’s contact. Instead, she would have provided the same coaching to the applicant that was provided to A.B.
Remaining Thunder Bay Sessions
44The training continued in Thunder Bay on June 3 and June 19, 2008. Larry Jourdain replaced the applicant at these training sessions. The sessions received very positive ratings. Ninety-two percent of the participants rated the June 3, 2008 as “very good” and eighty-two percent of the participants rated the training as “very good” on June 19, 2008.
45The individual presenters were also evaluated at these two sessions. By all accounts, Larry Jourdain was an excellent presenter. A.B. continued to receive negative comments, which included the following:
A.B. was furtive – seemed uncomfortable
The only reason I did not provide a “very good” was because A.B. did not appear to have a full grasp of the subject matter at all times
Larry Jordaine excellent, other guy not very knowledgeable on the material. Could respond to questions but easily mixed up on the information he was presenting
One presenter was 3 times better than the other. This is an average between the two
A.B. was a little dry. It appeared as if he was reading text for the majority of the presentation. Larry was excellent
I found Larry Jourdain very knowledgeable/carried what I got out of the sessions, whereas A.B. was unorganized and almost appeared uninterested
Direct Evidence of the Participants at the May 13, 2008 Training
46The parties called two witnesses who attended the training. The applicant summonsed Monika Holenstein to give evidence and the Ministry called Susan Fraser-Wilson. The views of these two participants about the training are diametrically different.
47Monika Holenstein testified that she attended the May 13, 2008 training and found it very interesting and informative. Ms. Holenstein came to the session with a great deal of experience working with First Nations. She found the information the applicant presented useful and appreciated the cultural perspective that she brought to the training. She testified that she has no recollection of the applicant being disconnected, erratic or distracted.
48Ms. Holenstein felt the applicant avoided confrontation, was not hostile and calmly answered the participants’ questions. She stated the applicant understood the material and was able to answer questions. Ms. Holenstein confirmed that some members of the audience expressed hostility during the training, appeared to be frustrated around the duty to consult and wanted a concrete list of the people that they needed to consult with.
49Susan Fraser-Wilson testified that the applicant had difficulty with the material and did not appear engaged with the material or with the audience. Ms. Fraser-Wilson stated the applicant appeared distracted and would sit down a number of times during her presentation only to be reminded to continue her presentation. Ms. Fraser-Wilson stated she felt “shut down” early on in the training when the applicant stated she would not talk about the sweet grass ceremony. Ms. Fraser-Wilson testified that A.B. was not a good presenter although he tried to engage and respond to the audience. She also thought A.B. was more familiar with the slide deck.
DISCUSSION AND ANALYSIS
Legal Framework
50The applicant bears the burden of establishing a prima facie case of discrimination. To meet this burden, she must prove: (a) she is a member of a group protected by the Code; (b) she was subject to adverse treatment; and (c) her race was a factor in the alleged treatment.
51There is no question that the applicant is a member of a group protected by the Code and that she was subject to adverse treatment, the termination of her contract. The only issue is whether or not she has established that her race was a factor in the alleged treatment. See Shaw v. Phipps, 2010 ONSC 3884 (Ont. Div. Ct.) at para. 47.
52The applicant argues this is a circumstantial evidence case and, as such, the following test applies:
(a) The initial evidentiary burden rests with the applicant to establish, on a balance of probabilities, a prima facie case that she was discriminated against on the basis of a prohibited ground;
(b) Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision did not involve a discriminatory consideration;
(c) If the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground.
See Clennon v. Toronto East General Hospital, 2009 HRTO 1242 at para. 69; reconsideration refused, 2010 HRTO 1693, (“Clennon”).
53It is unclear to me whether this case is a circumstantial evidence case as there is direct evidence of differential treatment between the Aboriginal and non-Aboriginal trainer, both of whom performed poorly at the May 13, 2008 training. If it is a case of circumstantial evidence with respect to whether inferences of discrimination can be drawn, the three-part test is difficult to apply. For example, it is not a question of whether the Ministry’s explanation regarding its decision to direct the termination of the applicant’s contract is erroneous or a pretext, but rather, whether systemic prejudices may have unintentionally influenced that decision.
54The other difficulty with the circumstantial evidence test is that it creates confusion around the notion of shifting burdens. The applicant bears the burden of proving her race was a factor in the Ministry’s decision. It is a legal burden of proof that she bears throughout her case. The Ministry, in defending the Application, adduces evidence in defence of the Application. If it believes the applicant has not established discrimination, it need not adduce any evidence. The legal burden of proof does not shift to the Ministry: it is an evidentiary burden only.
55After all of the evidence has been adduced, the Tribunal must decide whether the applicant has established that her race was a factor in the discriminatory treatment. The legal issue before the Tribunal is whether an inference of discrimination is more probable than not based on all of the evidence before it. This is the question that I have to decide. See Clennon, supra at para. 70
Was the Termination Discriminatory?
56The applicant was retained to provide Aboriginal relations training from the perspective of an Aboriginal person. The overall ranking of the training was very poor. Only thirty-three percent of the evaluators ranked it “very good”. The Ministry’s standard in this category is eighty-five percent. The overall ranking applied to both trainers and to the training as a whole. Karen Smith testified that the overall ranking is the most important factor in the evaluation process.
57Ian Smith wanted the applicant’s contract terminated after hearing the criticisms of his staff, combined with his own experience during the 2007 training. Shortly after the training, Susan Fraser-Wilson and two other staff members spoke to Ian Smith about the May 13, 2008 session. One of the staff members (whom Mr. Smith could not identify) used the words “drug abuse” and “blitzed” to describe the applicant. The Ministry asserts these words were used as a proxy to describe the applicant as “disconnected” or “spacey”. Ms. Fraser-Smith testified that the applicant, when speaking, would gaze off into the distance, pause for a few seconds and then resume her presentation.
58The Ministry agreed to wait for the written evaluations before making its decision regarding the termination of the applicant’s contract. Although there were many more negative comments about the applicant, both trainers were criticized for their performance. Despite the criticisms levelled at both trainers, the Ministry responded differently to their performance. It directed the termination of the applicant’s contract and required coaching for A.B.
59The Ministry explains its differential treatment on the basis of the nature of the criticisms directed to the applicant and A.B. The Ministry asserts the criticisms of the applicant were attitudinal or opinion-related whereas the criticisms of A.B. were about his presentation style. The Ministry asserts the evaluations indicated a lack of knowledge on the part of the applicant, but not with respect to A.B.
60The Ministry’s differentiation is not born out when one reviews the written evaluations. While there was a comment that A.B. was “far too mono-tone” (relevant to his presentation style), he was also described as being biased and not objective when presented with solutions to the various issues around consultation. Both presenters were criticized for not knowing subject matter, not being familiar with the content of the slides and being unable to pronounce words on the slides.
61The attitudinal comment concerning the applicant was that she “seemed a bit too defensive, a bit confrontational and even somewhat bitter at times”. It must be remembered that a significant chunk of this training dealt with 500 years of history between the Crown and Aboriginal people. This history has been an extremely difficult one for Aboriginal people and it is not surprising that the applicant may have strong feelings about it. That perspective may not have been understood by all of the participants at the training.
62On one of the evaluations, a participant stated: “Have some First Nations Elders and Leaders come and talk to us how they would like to be consulting (without all the whining about all the past historical injustices that have occurred, so that we all can move forward constructively, with mutual respect)” (emphasis added). I think it is fair to say that Aboriginal people may feel that the ability to move forward is predicated on an understanding of the historical context between them and the Crown.
63The applicant explained what she believed may have caused the comment about her attitude. The last topic of the training was on engagement and very little time was spent on it. The slides on this section represented eleven percent of the training as a whole. The applicant testified that there was hostility from some of the participants regarding consultation with Aboriginal communities. Her impression was that participants were looking for a concrete list of the steps that would satisfy this relatively new obligation on the part of municipal employees. Towards the end of the discussion, someone in the room asked whether a phone call would suffice. A.B.’s response to this question was “at least you have covered your ass”. The applicant testified that she was shocked by this comment after having worked in the field for five or six years trying to create a meaningful consultation process. Susan Fraser-Wilson confirmed that this comment had been made by A.B.
64The applicant testified that after this comment was made, she let a good length of time pass before she addressed it. She then made some pointed remarks about meaningful consultation and stated as long as it was interpreted as the least that needed to be done, there was no opportunity for meaningful consultation. She also stated consultation was more than a tobacco offering or a sweet grass ceremony. She said it was about understanding that there was a duty to consult in the first place. The applicant advised the participants that “advising” was not consulting. She said the duty to consult comes from the historical and ongoing relationship with the Crown. The applicant testified her comments were not well received by the participants in the room. She believes this incident may have influenced how her performance was perceived at the end of the training.
65The Ministry asserts the applicant’s race played no part in the treatment of the applicant and relies, in part, on the evaluations with Larry Jourdain. He was very positively received and the subsequent training sessions were highly rated. The Ministry relies on these positive evaluations and attributes the negative evaluations for the May 13, 2008 training solely to the applicant.
66I do not accept the Ministry’s argument for several reasons. The applicant’s case of discrimination is based on differential treatment as compared with A.B. She and A.B. both received negative feedback and yet her contract was terminated and A.B. was coached. The fact that the training improved dramatically with Larry Jourdain does not mean that the applicant is solely responsible for the poor overall ranking of the May 13, 2008 training session. It may be that Larry Jourdain was so exceptional that he was able to carry the subsequent training sessions. The evaluations of these sessions seem to support this conclusion. In any event, the issue in this case is about the relative treatment between the applicant and A.B. It is not about how the applicant was treated in relation to another Aboriginal trainer.
67The Human Rights Commission’s Policy and Guidelines on Racism and Racial Discrimination, identifies the application of disproportionate blame as indicative of racial discrimination. In my view, this concept is applicable in this case. The ranking of thirty-three percent in the “very good” category was attributed predominately to the applicant. The applicant’s evaluations were highly scrutinized and little attention was paid to the evaluations of A.B. This heightened scrutiny resulted in a more punitive response towards the applicant.
68The Ministry did not undertake an inquiry into the reasons for the applicant’s poor performance and simply relied on the feedback of several staff and the written evaluation summaries. One unidentified staff member used the words “drug abuse” and “blitzed” to describe the applicant’s demeanour. There is no question that substance abuse is a significant issue in the Aboriginal community. That does not mean that all Aboriginal people are addicted to drugs or alcohol. The applicant testified that she does not use drugs, nor does she drink alcohol. I have no reason to doubt this evidence.
69The substance abuse stereotype applied to the applicant and the reference to “historical whining” in one of the written evaluations are disconcerting. This feedback should have alerted people in decision-making positions in the Ministry to proceed cautiously before acting on this information. The Ministry failed to exercise such caution. Had it undertaken a more thorough inquiry, by speaking directly to the applicant before making its decision, it might have discovered the context for the applicant’s defensiveness towards the end of the training session. It might also have discovered that the views on the training were not uniformly negative. The disproportionate and summary response of the Ministry suggests some other factor was at play in its decision-making process. See Adams v. Knoll North America, 2009 HRTO 1381; judicial review dismissed, 2010 ONSC 3005 (Ont. Div. Ct.) (Knoll).
70Upon reviewing all of the evidence before me, I find that it is more probable than not that the applicant’s race was a factor at play in the Ministry’s differential response between her and A.B. I make this finding for the following reasons:
(a) Both trainers had performance problems at the training and yet they were treated differently. On its face, one of the differences between the trainers is their race;
(b) The distinction made by the Ministry to justify the differential treatment is illusory. There is no meaningful difference between a presentation that is poor because it is delivered in a “mono-tone” way and a presentation that is poor because the presenter is “spacey”. Both traits could be perceived as disconnectedness. The particular criticism made about the applicant’s presentation style does not take into cultural differences that may exist in the communication styles of the two presenters;
(c) The applicant was criticized for being opinionated or attitudinal and yet she was retained as an Aboriginal person to provide training from an Aboriginal perspective. One might expect an Aboriginal person to have opinions about the subject-matter of this particular training;
(d) A racial stereotype was used by Ministry staff to describe the applicant’s demeanour. It is unclear to me how a link was made between the applicant being disconnected when presenting the slide material and allegations of drug abuse;
(e) The applicant was subject to greater scrutiny and a more punitive response than A.B. who continued to perform poorly throughout the training. A.B. was seemingly immune from consequences for his performance;
(f) The applicant was blamed for the low overall rating of the training even though it applied to both presenters and the training as a whole. The negative comments on the individual assessments were also predominately attributed to the applicant even where she was not identified;
(g) The applicant may have had a bona fide reason for being defensive at the end of the training in light of the comment made by A.B. and yet she was given no opportunity to explain her performance prior to the decision to direct the termination of her contract.
71The criticisms facing the applicant were highly subjective, as was the interpretation given to them by the Ministry. The Ministry in deciding to terminate the Aboriginal trainer and to coach the non-Aboriginal person was obligated to take great care to ensure the feedback it relied upon was not infused with discriminatory beliefs, held consciously or not. The Ministry failed to do this.
72In summary, the applicant’s performance at the May 13, 2008 training session was highly scrutinized and disproportionate blame was attributed to her for the poor overall ranking of the training. The Ministry over-reacted by failing to provide the applicant with an opportunity to respond to the criticisms and by failing to give Consulting Matrix the opportunity to coach her. This heightened scrutiny, disproportionate blame and over-reaction when compared to A.B. constitutes differential treatment on the basis of race. In these circumstances, I find the Ministry contravened section 3 of the Code when it directed Consulting Matrix to terminate the applicant’s contract.
73Before leaving this section of my Decision, I would like to make the following comment. The true measure of equality is not about the standards that are applied to members of protected groups when they excel, it is also about how they are treated when their performance is not up to par. In this case, the Ministry accepted the inadequate performance of a non-Aboriginal person, but did not accept it from an Aboriginal person. It was prepared to remediate the poor performance of the non-Aboriginal person, but was not prepared to remediate the performance of the Aboriginal person. The fact that another Aboriginal trainer was outstanding is not the issue. It is the application of different standards of performance between the Aboriginal and non-Aboriginal trainer that is the question before me.
Consulting Matrix
74The applicant argues that Consulting Matrix is liable because it condoned or furthered the Ministry’s discrimination by following its direction to terminate her contract.
75In Payne v. Otsuka Pharmaceutical Co. Ltd., 2002 CanLII 46516, (“Payne”) the Board of Inquiry held there is a duty under the Code not to condone an act of discrimination that has already occurred. This duty applies to those drawn into the discrimination, whether through contractual relations or otherwise. The more power or authority a party has, the greater the onus to stop the discrimination. This duty recognizes that the failure to act enables the discrimination to continue.
76In this case, Consulting Matrix terminated the contract with the applicant at the Ministry’s direction. The training contract was between Consulting Matrix and the applicant. I find that Consulting Matrix had legal control over the applicant and it is on this basis, that it owed a legal duty not to condone the Ministry’s discrimination.
77To meet the duty not to condone discrimination, Consulting Matrix was required to investigate the matter and arrive at a reasonable conclusion. The reasonable conclusion is not necessarily the correct conclusion nor does it have to be the same conclusion arrived at by the Tribunal. If discrimination is found, Consulting Matrix is obliged to take reasonable steps to remedy the discrimination. See Payne, supra at pp. 22-27.
78Upon receiving the Ministry’s direction to terminate the applicant’s contract, Karen Wishart asked to speak with Karen Smith. She believed the evaluations were polarized and more could be learned about the May 13, 2008 training.
79Karen Wishart spoke to Karen Smith on May 26, 2008 and asked to speak with Ms. Fraser-Wilson who attended the training.
80Ms. Wishart spoke to Susan Fraser-Wilson on May 26 and met with her and Ian Smith on June 3, 2008. At the end of these discussions, Ms. Wishart came to the conclusion that there were issues with the applicant’s performance at the May 13, 2008 training. There is no evidence before me that Ms. Fraser-Wilson or Mr. Smith used the descriptors “blitzed” and “drug abuse” to describe the applicant’s demeanour with Ms. Wishart.
81Ms. Wishart offered to work with the applicant for the balance of the contract, to provide feedback to her, and to possibly develop an ongoing working relationship. Ms. Wishart believed this would remedy some of the applicant’s reputational concerns. The applicant did not accept this offer.
82I agree with Karen Wishart’s conclusion that there were issues with the applicant’s performance. However, I disagree that that ends the matter. The issue is whether the applicant was treated differently from A.B. who also had performance problems. Had A.B. been terminated, there would have been no differential treatment. Had the applicant been coached, there would have been no differential treatment. The discrimination in this case is the differential response to the applicant when compared to A.B. I have found that the differential response was influenced, in part, by the applicant’s race.
83Consulting Matrix investigated the matter by speaking to Ms. Smith, Ms. Fraser-Wilson and Mr. Smith. It acted reasonably in this regard. Upon reaching its conclusion that there were performance problems, Consulting Matrix continued to act reasonably when it offered to work with the applicant for the balance of the contract. Although Ms. Wishart’s conclusion was correct, it was also incomplete. That being said, Consulting Matrix does not have to arrive at the same conclusion as the Tribunal after a full hearing in order for it to meet its duty not to condone the discrimination of the Ministry.
84I find that Consulting Matrix met its duty not to condone the discrimination of the Ministry and it is not responsible for the discriminatory conduct of MMAH.
MONETARY COMPENSATION
Injury to Dignity, Feelings and Self-Respect
85The applicant seeks damages in the amount of $25,000.00 for loss of the right to be free from discrimination and for the mental anguish she experienced. She testified that the termination of her contract had a significant impact on her both personally and professionally. The Ministry argues the amount of damages sought by the applicant is excessive when compared to similar cases.
86In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), (“Lane”), the court held tribunals should consider the following subjective factors when awarding general damages: humiliation, hurt feelings, the loss of self-respect, dignity and confidence of the applicant, the experience of victimization, vulnerability, and the seriousness of the offensive treatment (at para. 153). In addition to the subjective effects of discrimination on an applicant, the Tribunal may incorporate an objective component to the quantification of monetary compensation by considering the circumstances surrounding the discrimination. In assessing the amount to award, the Tribunal is mindful of not setting the amount too low so as to avoid trivializing the social importance of the Code by effectively creating a ‘license fee’ to discriminate (at para. 152).
87In June 2008, the applicant referred herself to Dr. Woit, a counsellor with whom she had a prior therapeutic relationship. Dr. Woit has a doctorate in social work and is certified as a clinical traumatologist. At the time of the referral, the focus of the counselling was on relationship issues. In January 2009, the applicant began speaking to Dr. Woit about the termination of the training contract and its impact on her. She continued to seeking counselling about the termination and described its impact in more detail in July 2009.
88Dr. Woit testified that the impact of the termination on the applicant was significant. She stated the applicant felt helpless, powerless and washed up. Dr. Woit classified the termination as a small “t” trauma, one which created hyper-arousal, anger, immobilization, and repetitive and intrusive thought patterns for the applicant. In her report filed with the Tribunal, Dr. Woit stated that “due to the sudden nature and unexpectedness of the dismissal Ms. Couchie experienced a degree of psychological trauma manifesting in feelings of depression. Ms. Couchie clearly identifies negative self-statements. She presents as overwhelmed with the critical self-messages and self-doubts”.
89The applicant testified that the termination affected her self-perception and resulted in a significant lack of confidence. She lost her ability to promote herself and her work. Notwithstanding her extensive work as a consultant with the government, the applicant has not had received government contracts since the termination.
90Intertwined with the loss of confidence, is the psychological impact identified by Dr. Woit. The applicant was terminated for her inability to deliver Aboriginal relations training, a subject that she was highly educated about and which comprised her professional expertise. She was terminated as an Aboriginal person retained to deliver Aboriginal relations training from the perspective of an Aboriginal person. The training went to the very core of the applicant’s identity.
91When the applicant was terminated on the basis of lack of competence in this area, she was devastated. The applicant described the impact in the context of the historical relationship between Aboriginal persons and the Crown. She was terminated by the government while she was trying to earn her livelihood as an Aboriginal person with expertise in Aboriginal relations issues. The termination impacted her deeply and profoundly. In these circumstances, when considering all of the relevant factors identified above, an award of $20,000.00 is appropriate.
Lost Contract Value
92The applicant seeks reimbursement for the remaining value of the training contract in the amount of $5,625.00. The applicant has established this loss.
93The applicant would have completed the contract had the Ministry not discriminated against her. Ms. Wishart would have provided the same remediation that was given to A.B. and it is likely the applicant’s performance would have improved. Even if the applicant continued to experience performance problems, it appears the Ministry was prepared to accept ongoing performance issues having regard to the subsequent evaluations of A.B.
94While the applicant has established her loss in relation to the training contract, she failed to mitigate that loss when she refused the offer of Consulting Matrix to do research work equal to the amount of her lost contract. The applicant refused this offer because she felt it would displace time required to find work with employers who had not terminated her for unjust reasons.
95Consulting Matrix acted reasonably in investigating the termination of the applicant’s contract and in offering to fully compensate the applicant for her contractual loss. While the applicant had the right to refuse this offer, she cannot obtain reimbursement for a loss which she could have completed mitigated. I therefore find the applicant is not entitled to be compensated for the lost contract value.
96Finally, the applicant seeks a systemic remedy, but has not indicated the kind of remedy that she is seeking. In the absence of an identified systemic remedy, none will be ordered. During the hearing, the applicant was able to describe fully the nature of the discrimination she experienced and its impact on her. She did so in a heart-felt and eloquent way. I am satisfied that both respondents heard her words. I am also satisfied that this decision allows the Ministry to understand the applicant’s perspectives and the subtle nature of the discrimination which occurred and expect that this understanding will be applied in the future.
ORDERS
97Having found that the Ministry violated sections 3 and 9 of the Code, the Tribunal makes the following order:
The Ministry shall pay the applicant $20,000.00 for the loss arising from the infringement of her rights under the Code plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act, R.S.O. c. C.43 from the date of the Application;
Post judgment interest in accordance with section 129 of the Courts of Justice Act on this amount from 30 days following the date of this Decision.
Dated at Toronto, this 14th day of April, 2011.
“Signed by”
Jennifer Scott
Vice-chair