Dungus v. Toronto Police Services Board, 2013 HRTO 36

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rabah Dungus

Applicant

-and-

Toronto Police Services Board, Andrew Blunk, Darren Halman, Jeffrey Treusch, Sean McGuinness, David Roberts, Karen Chapman and Conrad Rozario

Respondents

DECISION ON REMEDY

Adjudicator: Kathleen Martin

Date: January 9, 2013

Citation: 2013 HRTO 36

Indexed as: Dungus v. Toronto Police Services Board

APPEARANCES

Rabah Dungus, Complainant

Osborne Barnwell, Counsel

Toronto Police Services Board, Andrew Blunk, Darren Halman, Jeffrey Treusch, Sean McGuiness, David Roberts, Karen Chapman and Conrad Rozario Respondents

Michele A. Wright, Counsel

Introduction

1This is a complaint referred to the Tribunal by the Ontario Human Rights Commission under section 36(1) of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”).

2On December 6, 2010, the Tribunal issued its Decision on the issue of liability: 2010 HRTO 2419. In that Decision, I found that Mr. Rabah had been discriminated against in two aspects of his interactions with the police during an arrest: by remarks made to him during fingerprinting and by contacting his then employer the Department of National Defence.

3This is the Tribunal’s Decision on remedy.

BACKGROUND

4The original complaint arose out of an incident on June 21, 2004, in which Mr. Rabah was arrested for trafficking in cocaine. Mr. Rabah alleged that the police discriminated against him on the basis of race, colour and ethnic origin: (i) by approaching him during an undercover drug operation; (ii) in the manner in which he was initially detained and arrested, including allegations that he was physically mistreated; (iii) in the police’s subsequent treatment of him at the police station including in two strip searches and by comments made to him while he was having his fingerprints taken; (iv) by contacting his then employer, Department of National Defence (“DND”) and advising of the arrest; and (v) in recommending that he report to a particular reporting centre as a condition of bail.

5Following his arrest, on June 23, 2004, Mr. Rabah was suspended from his employment at the DND pending an investigation for the alleged off-duty conduct, and on July 16, 2004, was terminated for the same.

6On January 11, 2005, the charge was withdrawn against Mr. Rabah.

7A hearing into the merits of the complaint took place over a number of days in 2009 concluding on October 5, 2009.

8In the Decision, I found that while being fingerprinted, the officer who fingerprinted Mr. Rabah, made a comment to him that he would be deported and that this comment constituted a violation of the Code based on the intersection of colour, race and place of origin (see paras. 61 and 62). In addition, I found that Mr. Rabah had proven that his race, place of origin or colour was a factor in the respondents’ suspicion of his work identification and at least one of the reasons why they contacted the DND (paras. 67 to 69). I did not find that the remaining allegations were established.

9In a supplementary decision on February 18, 2011, I found that the named organizational respondent is liable for the discrimination found (2011 HRTO 366).

10Following the Decision and the supplementary decision on liability, the parties participated in mediation in an effort to resolve the issue of remedy but were unable to resolve the issue.

11A hearing was reconvened to hear evidence and submissions on remedy. On April 23 and 24, 2012, I heard additional evidence from Mr. Rabah; a physician and resident in psychiatry that assessed and treated Mr. Rabah in the fall of 2010; and a representative of the DND who advised on the termination of his probationary contract. In addition, the parties filed written submissions and made oral submissions on May 29, 2012.

12Following the conclusion of the evidence and prior to oral submissions, Mr. Rabah’s counsel sought to re-open the case to ask further questions of the physician and resident in psychiatry and to submit additional documentary evidence for reasons which were detailed in his request. The respondents objected, and on May 3, 2012, I issued a Case Assessment Direction, which among things, directed that the parties make any further submissions on the complainant’s request in the course of presenting argument on May 29, 2012.

13At the outset of the hearing on May 29th, 2012, Mr. Rabah’s counsel withdrew his request.

The Remedy Sought

14Section 45.2(1) of the Code states as follows:

On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. 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.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. 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 this Act.

15In this case, Mr. Rabah’s request for a remedy is limited to various forms of compensation under subsection 1. above. Mr Rabah seeks compensation in the amount of $175,000.00 for injury to his dignity, feelings and self-respect; compensation in the amount of $1,298,600.00 for lost income; and compensation for other losses including legal expenses incurred to get his job back and the cost of obtaining a transcript in the liability portion of the hearing. The respondents accept that a remedy should be awarded for injury to Mr. Rabah’s dignity, feelings and self-respect but oppose any other remedial order.

16I will begin with the claim for lost income and question of whether or not the telephone call was a factor in the termination of Mr. Rabah’s employment since the determination of this issue is relevant to several of Mr. Rabah’s claims.

Claim for Lost Income

17Mr. Rabah seeks compensation for lost income which he asserts flows from the findings made. In particular, Mr. Rabah argues that the discriminatory act of calling DND and advising them that he had been arrested for trafficking in cocaine was the “catalyst” which led to his dismissal from employment or alternatively was a material contributing factor to the loss of his job. The loss identified in paragraph 15 above consists of $334,800 for loss of income incurred from November 25, 2004 to April 30, 2012; and $963,800 for projected loss of income from May 1, 2012 to February 28, 2031 (or when Mr. Rabah turns age 65) on the theory that Mr. Rabah will remain unable to work for the remainder of his working years.

18The respondents argue that no award for loss of income should be made for various reasons including that DND conducted its own investigation and based on the result of that investigation decided to dismiss Mr. Rabah. Further, and in any event, the respondents argue that Mr. Rabah received full salary and benefits for the period of his contract with DND and it would be speculative to find that he would have continued in his employment for any period of time after November 23, 2004.

19The purpose of compensation of this nature is to place the applicant in the position he would have been in had the discrimination not occurred: see Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.); Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.). In this case, applying this principle, I find that the evidence does not support a claim for a wage loss.

20At the relevant time of the events in the complaint, Mr. Rabah was employed on a “determinate appointment” in the position of stores person, a job that included responsibility for inventory in a warehouse environment including ordering and receiving products. The appointment commenced on November 24, 2003 with an end date of November 24, 2004 and was subject to a 12 month probationary period. I accept that for the most part Mr. Rabah was doing well in his job performance. Approximately one month before the arrest, Mr. Rabah had received a performance review describing his performance as “satisfactory” and reflecting a number of positive comments including that he showed “professionalism”, was a “morale booster” and a “pleasure to have in the section”. Of the eight areas measured, two areas were identified as needing “improvement”: “occupational knowledge and skills” and “thinking skills”.

21The basic chronology of events that led to his termination is not in dispute:

• On June 21, 2004, Officer Blunk contacted the military advising, among other things, that Mr. Rabah was arrested for trafficking in cocaine.

• On June 22, 2004, a representative of the military police attended the bail hearing of Mr. Rabah.

• On June 23, 2004, a letter was issued to Mr. Rabah by the DND indicating that he is alleged to have misconducted himself by being charged by civil authorities for “possession for the purpose of trafficking….”; that an “investigation would be conducted into the matter to determine whether the allegation was substantiated and whether or not disciplinary action would be taken”; that as part of this investigation a meeting will be arranged to discuss Mr. Rabah’s point of view; and in the interim, due to the serious nature of the allegation, Mr. Rabah would be suspended from duty without pay.

• On June 24, 2004, Mr. Rabah was notified of a “formal hearing” by the DND to provide him with the opportunity to present his case on July 7, 2004.

• On July 7, 2004, the “hearing” occurred at which time, Mr. Rabah met with Major Fitzgerald (the commanding officer for the area support unit in Toronto) and Ms. Lean, human resources officer with the DND. Among other things, Mr. Rabah was asked what happened and explained his version of events.

• On July 16, 2004, a letter was issued by Major Fitzgerald “rejecting” Mr. Rabah from probation. Major Fitzgerald indicated that “this decision is based on my investigation into alleged off-duty misconduct” and concluded that “your misconduct has impaired your ability to perform the duties required of your position by breaching the bond of trust in the employer-employee relationship.”

• Mr. Rabah initiated a law suit about the termination but it was stayed pending his right to proceed with a grievance.

• A grievance was filed which alleged that the “employer” had failed to advise Mr. Rabah of his right to union representation and that the rejection on probation was unrelated to his ability to carry out the functions of his position. The grievance was processed through the various levels but DND did not change its decision even after the charge was withdrawn. At the second level, DND provided reasons for its position including that management concluded “based on the balance of probabilities that you had misconducted yourself off duty [and] further, management no longer believed you could be trusted to perform the duties of your position given the nature and seriousness of your off duty misconduct…”.

• The grievance proceeded before an adjudicator at the Public Service Labour Relations Board. At the subsequent hearing, DND conceded the grievance except for remedy. The PSLRB determined that the grievance was allowed in part and that the employer must pay Mr. Rabah the salary and benefits lost from June 22, 2004 to November 24, 2004, less the two weeks already paid. The PSLRB declined to order reinstatement on the basis that it concluded it lacked jurisdiction to do so given that the Public Service Employment Act R.S.C. 1985, C.P.33 gave the Public Service Commission the exclusive right and authority to make appointments.

22As a result of the grievance process, Mr. Rabah was compensated for the duration of his probationary contract and thus is not advancing a claim for compensation for the period already remedied i.e. June 22, 2004 to November 24, 2012. In this proceeding, Mr. Rabah seeks compensation for the period after his term ended on the theory that he would have been reappointed had the police not contacted his employer and communicated the information provided.

23Ms. Lean, the human resources officer who advised Major Fitzgerald on the employment status of Mr. Rabah, provided testimony on the DND’s response. Ms. Lean states that Major Fitzgerald, the commanding officer, came to her for advice and guidance regarding the off-duty allegations and she advised that he should look at both sides (the police version and Mr. Rabah’s version) and then determine which version was more probable based on a balance of probabilities. She stated that Major Fitzgerald’s decision was that the police version seemed “more plausible” although she acknowledges that she does not have “a list of all the things that went through Major Fitzgerald’s head to make that determination”. She further stated that the dropping of the charges made no difference to DND’s position because DND did its own investigation and the “decision was based on that investigation, not the criminal proceedings” although she agrees that the investigation was based on what the police advised occurred.

24With respect to the significance of the phone call, Ms. Lean offered the opinion that DND would have investigated regardless but that the phone call did make them aware a day earlier.

25Mr. Rabah also testified about his interaction with the DND and his view of his obligation to report the charge. Notably, Mr. Rabah made it clear in both the liability and remedy parts of the hearing that he would have told his employer about his predicament. In the former, Mr. Rabah states that he called his supervisor on the court telephone on June 22, 2004 and disclosed that he had “some problem” accounting for his absence from work and he wanted to come in to discuss it (as opposed to doing so over the telephone). Shortly thereafter, DND told Mr. Rabah not to report at his regular time but instead to come into a meeting. Mr. Rabah states that he found out the next day when he went in to meet with his employer (which turned out to be a meeting suspending him), that the DND had already found out from the police that he had been charged.

26Based on the evidence, I accept that the telephone call adversely affected Mr. Rabah in his employment. While it is apparent that Mr. Rabah intended to disclose his predicament to his employer, I accept that he wanted to manage the disclosure (hence his request that he come in to discuss his absence as opposed to doing so over the telephone). Instead, the call resulted in the military police hearing first from the police and not Mr. Rabah that he had been charged with trafficking in cocaine. This immediately led to the military police attending his bail hearing and hearing of the charge (which I accept cast Mr. Rabah in a negative light) and resulted in the DND telling him not to report at his regular time but instead to come into a meeting at which he was suspended. Based on this chain of events and the evidence of Ms. Lean it seems apparent that the telephone call expedited the DND’s consideration of the issue of the alleged off duty conduct and led to Mr. Rabah being suspended before he even had an opportunity to explain his version of events.

27However, the evidence does not support a conclusion that the telephone call caused his job loss thus making the respondents responsible for any wage loss. I note that it is the DND that terminated Mr. Rabah and not the police. Further, while the telephone call is part of the narrative of events, it did not result in Mr. Rabah’s termination. Instead, the DND investigated the matter and only terminated Mr. Rabah after it concluded an “investigation” which included providing Mr. Rabah with an opportunity to present his side. Even accepting that Ms. Lean’s evidence was somewhat equivocal as to what factors went through Major Fitzgerald’s mind, the evidence that I do have (the documentary material summarized in the bulleted points in paragraph 21 above) supports the conclusion that it was the trafficking charge and the DND’s own assessment of the information that led to Mr. Rabah being terminated.

28Based on the evidence, I accept that the “investigation” would have taken place whether the police or Mr. Rabah advised DND. There is no reason to believe that the result of the investigation and DND’s decision would have been different if Mr. Rabah initially advised his employer. There is certainly no basis to make a factual finding that had Mr. Rabah, rather than the police, advised his employer, he would have been renewed beyond the contractual period for which he was paid. Accordingly, I find no basis on which the failure to renew his contract can be linked to the discrimination.

29Before concluding on this issue, I note that the complainant had argued that the police misrepresented the facts at the time (relying on the report of the military police attending who reported that the Crown stated that cocaine had been identified) and this should be significant in my determination. I have some difficulty considering this argument at this stage given that I ruled against an expansion of the claim in the liability portion of the hearing to include the allegation that the police communicated false information throughout this process to the DND and my role now is to determine what remedy to award for findings already made. However, even if I consider this argument, it does not change my view of whether or not there should be a compensatory order for lost wages. While it it does appear that the DND received different information at different times (including subsequently becoming aware that no drugs were found) it does not change the fact that it was the DND that ultimately decided to terminate Mr. Rabah after a consideration of all of the information it received. The fairness of that determination is not an issue before me.

Remedy for Injury to Dignity, Feelings and Self-Respect

30Mr. Rabah also seeks $175,000.00 in compensation for injury to dignity, feelings and self-respect. This amount is based on the view that Mr. Rabah experienced and continues to experience psychological trauma arising from his interactions with the police on June 21, 2004 and its aftermath including the loss of his job. While counsel for Mr. Rabah acknowledges that not all of the allegations made by Mr. Rabah in respect of the events of June 21, 2004 were found to be discriminatory, counsel urges me not to apply any reduction in the damages given that the findings made – the discriminatory comment and the telephone call to DND – caused the injury at least in part. Counsel argues that to apply a reduction is contrary to the remedial principle of restoring Mr. Rabah’s dignity and inconsistent with case law.

31In support of his submissions, counsel relies on a decision of the Social Benefits Tribunal dated March 22, 2011 which found that the applicant was a person with a disability based on its finding that his medical conditions give rise to impairments that substantially restrict his ability to function normally including his ability to function in the workplace (Social Benefits Tribunal Decision 1004-03363). In addition, with respect to applicable legal principles, counsel relies on a number of cases from the Tribunal including Arunachalam v. Best Buy Canada, 2010 HRTO 1880 as well as the decision of the Supreme Court of Canada in Athey v. Leonati, 1996 CanLII 211 (SCC), [1996] 2 SCR 458. Counsel argues that the Tribunal should apply the principle articulated in Athey, a tort case, that as long as a party is part of the cause of an injury that party is liable and that there is no basis for a reduction of liability because of the existence of other pre-conditions.

32The respondents disagree with the complainant’s approach. The respondents state that all of the circumstances should be considered in determining the appropriate amount of compensation including that the complainant had a history of depression and poor employment before 2004, that he was detrimentally affected by all of the events of June 21st most of which were not found to be discriminatory and that there were other events which have contributed to his mental state including stress from losing his job and not working. The respondents argue that all of these circumstances should be factored into the award of compensation.

33In support of their submissions, the respondents rely on Arunachalam and other cases from the Tribunal and the courts. Of particular note is a decision of the Supreme Court of Canada in Blackwater v. Plint, 2005 SCC 58, [2005] 3 SCR 3. In this tort case, the Supreme Court of Canada held that in assessing damages for sexual abuse and other harm suffered by a student in a residential school it is appropriate to exclude damages relating to the trauma suffered by the student before he came to the school and for statute-barred wrongs. By analogy, the respondents argue that the compensation ordered should be limited in this case to the injury resulting from the discrimination found.

34With respect to quantum, in their written submissions before the hearing the respondents submitted that $15,000.00 was an appropriate award. Following the evidence, the respondents have suggested that this is at the “high end” and that a lesser amount should be ordered.

35In Arunachalam, the Tribunal reviewed the evolution of its caselaw in approaching awards for intangible losses. While acknowledging jurisprudence from other areas the Tribunal stated that its approach must be centered in the values and statutory language of the Code, that damages must be fair to both the applicant and respondents given the violations of the Code found, and further that cases with equivalent facts should lead to an equivalent range of compensation recognizing that each set of circumstances is unique. In general terms, the Tribunal identified that there are two criteria that are applied in making an evaluation of the appropriate damages for injury to dignity, feelings and self-respect: (1) the objective seriousness of the conduct; and (2) the effect on the particular applicant who experienced discrimination.

36In approaching this issue, I have considered all of the cases cited but have been most guided by the principles and approach in Arunchalam. Applying the criteria to the case before me is challenging given the nature of the evidence and the unique circumstances, particularly in respect of the subjective impact.

37Beginning with the objective circumstances, there were two findings made. I find that objectively, the comment made by the officer fingerprinting Mr. Rabah is at the less serious end of the spectrum given that it was a single remark by a single officer who was not involved in the other incident which I found to be discriminatory. Conversely, I find that the telephone call to the DND is a serious violation. The telephone call to DND interfered with another aspect of Mr. Rabah’s life (his employment) and the information communicated deprived Mr. Rabah of the ability to manage the disclosure to his employer of the serious charge laid against him. As opposed to receiving information from an employee who was honestly disclosing a serious charge, the telephone call led to the military attending at the applicant’s bail hearing which I accept placed Mr. Rabah in a negative light and expedited the DND’s response to the issue by leading to his immediate suspension. Thus, I accept that the communication impacted on Mr. Rabah’s employment in a significant and negative way.

38The subjective impact is more challenging to assess, principally because the evidence presented does not align in a clear way with the findings made. While there may be legitimate reasons for this from the complainant’s perspective (because he is unable to parse out the impact of various events), I do not accept that this means that the Tribunal should award a remedy for the full impact of what Mr. Rabah has experienced, which includes incidents that were not found to be discriminatory. Notwithstanding the complainant’s submissions, I find an order for compensation must be based on the discrimination found. The Code provides the Tribunal with discretion to order compensation to the party whose right was infringed “for loss arising out of the infringement” - in this case the infringement was the telephone call and the remarks made to Mr. Rabah while being fingerprinted.

39Turning to the evidence, I heard from Mr. Rabah and Dr. McKeever, a resident in psychiatry who assessed and treated Mr. Rabah in the fall of 2010.

40Mr. Rabah states that he was depressed prior to 2004, but he was active in volunteer work and happy in his social life. He acknowledged that there had been interactions with the police before 2004 but that he could “deal with it”. After the incident in 2004, Mr. Rabah describes becoming “very depressed” and that he was impacted both mentally and emotionally. He wept openly about the loss of his job and impact of his experience with the police stating that the police had tampered with “his soul” and what “constitutes” him as a human being. Mr. Rabah testified that he cannot forget what happened to him and described having nightmares about being questioned about drugs, being strip searched and flashbacks about the remark that he would be deported. Mr Rabah states that the latter remark made him feel “very angry” and “very bad” because he had lived in Canada for a long time, came from a good family and had become a Canadian citizen.

41Mr. Rabah’s evidence was replete with references about the importance of the job at DND to him and how badly he felt about losing it. After years of struggling to find employment, Mr. Rabah expressed that he had found a job he “loved”; that he felt that he was “part of the family” at DND; and that the job was a “shining light in the right direction” that gave him the opportunity to contribute to society. He states that when he lost his job he felt it was the “end” of him. While it is clear from Mr. Rabah’s evidence that he viewed the telephone call as being responsible for his termination, he also expressed in the liability hearing the offence he felt from the telephone call itself. On more than one occasion Mr. Rabah stated that it was his responsibility to tell his employer what happened (i.e. “it is my job to tell for my employer, not the police to call my employer”).

42Mr. Rabah testified about seeking treatment from various physicians after the events of 2004 and going on medication for the “trauma” he experienced (something he had not done previously although he suffered from depression).

43With respect to the impact of the events on work and social activities, Mr. Rabah’s evidence was less coherent. Initially Mr. Rabah stated that although depressed, he continued to look for work albeit without success. Later in his testimony, Mr. Rabah stated that when he became “disabled” (which I presume referred to the SBT ruling in 2011), he had restrictions on his ability to work primarily because of difficulties in coping and being on medication. In cross-examination, the respondent produced surveillance evidence from three dates in March and April 2012, which appeared to show Mr. Rabah in a store stocking shelves, taking out boxes and pricing merchandise. Mr. Rabah’s explanation of this evidence was that he was assisting a friend who owned the store and he was not compensated for it.

44The evidence in respect of Mr. Rabah’s description of the impact on his social relationships was similarly challenged by the respondent. Mr. Rabah describes that after the incident on June 21, 2004, he did not want to talk to anybody and stayed at home. He stated that he used to have a girlfriend but she left him although he stated they were still friends. Mr. Rabah stated that he did not have a girlfriend at the time he testified. When the respondents introduced surveillance evidence of Mr. Rabah holding hands with one woman while walking on the street on one day in 2012, Mr. Rabah explained that he had just met this woman and that he never saw her again after this occasion.

45For the most part, Dr. McKeever’s evidence is corroborative of Mr. Rabah’s evidence. She confirms that Mr. Rabah has had an over ten year history of symptoms of depression and that at the time she assessed him he suffered from both major depressive disorder and post-traumatic stress disorder. In commenting on Mr. Rabah’s symptoms, Dr. McKeever states:

Mr. Rabah presented with an approximately 10 to 15 year history of symptoms including low mood, anxiety, poor sleep and appetite, anhedonia, feeling unsafe, hypervigilance, nightmares and difficulty leaving his home. His anxiety is predominantly focussed around worries of future police violence and rumination of past experiences, and is not generalized to other situations. He states that for years he has felt hypervigilant and afraid, both when he is at home and when he is out. He startles easily and fears that any sudden noise could be police coming to arrest him. He has frequent nightmares about past altercations with police, and also experiences day time flashbacks where he has the sense that he is reliving past events.

He describes having been stopped and/or arrested by police over one hundred times since his immigration to Canada in 1989. He states that he has been harassed and physically assaulted by police officers on a number of occasions…There was one particular incident, in 2004, in which he sustained a minor traumatic brain injury as well as an injury to his testicles which was particularly traumatic for Mr. Rabah. He states that during this incident the police insulted him and used language which he found extremely offensive and distressing which he was not willing to repeat during our assessment.

46In opining on the cause of Mr. Rabah’s condition, Dr. McKeever states:

…It is my opinion that the majority of Mr. Rabah’s symptoms are very closely tied to the discrimination he faced. Mr. Rabah’s symptoms, outlined above, began as a result of his interactions with police since moving to Canada, and have negatively affected his life and functioning in a multitude of ways. He has been unable to find a job, by his own description because of his positive police check. He lost a job which was a major source of satisfaction and self esteem due to having a police record. He was initially involved with volunteer work, but in recent years has not been able to perform any formal volunteer work because of his symptoms of anxiety and hyper-arousal and his fear of being stopped by police. He has increasingly isolated himself from friends and social networks and has stopped participating in activities that he once enjoyed, such as sports. While medications … have been somewhat helpful for these symptoms, they have not, to date, alleviated them to the point where Mr. Rabah can return to his previous level of functioning. The impact of these factors has been to threaten Mr. Rabah’s sense of identity, belonging, and self-worth, which have clearly had serious and enduring repercussions on his mood and overall mental status.

47I accept that the events of June 21, 2004 including the subsequent loss of his job, had a serious impact on Mr. Rabah. I rely on Mr. Rabah’s own description of impact as summarized in paragraphs 40 to 41 which I find credible. I found Mr. Rabah’s distress over the events of 2004 genuine both in the liability part of the hearing (insofar as he had difficulty even recounting some of the events such as the strip search) and the remedy portion which I view as indicative of the ongoing impact of the events. Further, I note that although Dr. McKeever references a history of police interactions which she states has impacted Mr. Rabah, she makes specific reference to the incident in 2004. Moreover, considering the objective evidence, it is apparent that prior to the events that transpired in 2004, Mr. Rabah was well enough to be gainfully employed at a full time job at which he was performing satisfactorily which I view as an indicator of the state of his health. Until recently, the evidence suggests that Mr. Rabah has found it challenging to engage in either social or work activities.

48In considering the issue of impact, I have given some weight to the surveillance evidence. However, when taken in context, I am mindful that this evidence relates to only three days in 2012 (almost eight years after the relevant date of the findings made). Considering all of the evidence, I do find that the surveillance evidence reflects that any impact on Mr. Rabah appears to be somewhat lessened in 2012. Whether receiving income or not, the surveillance tape reflects that Mr. Rabah is able to work for a few hours on a casual basis. I draw no inference from the tape showing Mr. Rabah holding hands with a woman on a single occasion.

49As for parsing out the various factors that contributed to the psychological trauma experienced by Mr. Rabah, I have considered Mr. Rabah’s history of depression. In light of the medical evidence and Mr. Rabah’s own evidence, I do not find that the respondents are responsible for the depression he has apparently had for over 10 years. However, while there is a history, Mr. Rabah appeared to be coping with any symptoms of his depression at least for the period leading up to June 21, 2004 insofar as he was maintaining a full-time job that he was performing well at and was engaged in other activities of life. This changed after June 21, 2004 and the respondents are responsible for rectifying the additional injury to Mr. Rabah although the respondents are not responsible for remedying the full amount of that impact to the extent other factors contributed to the worsening of his condition as described by Mr. Rabah.

50As for other factors, I find it necessary to consider the respective significance of the various aspects of the incident on June 21, 2004 including the subsequent loss of his job. When I do, I find that Mr. Rabah was most affected by the physical treatment by the police, the strip search by the police (which included comments which Mr. Rabah had great difficulty testifying about and which I presume his doctor references in the second paragraph of paragraph 46 above) and the loss of his job. The respondents bear no responsibility for the impact on Mr. Rabah for the arrest including the physical treatment and strip search as these events were not found to be discriminatory. While I have not found that the respondents were responsible for causing Mr. Rabah to be terminated, they do need to rectify the impact of the role they played in communicating information which reflected negatively on Mr. Rabah in his employment. The police communicated information which was unrelated to the stated purpose of their call of verifying identification, and in doing so, usurped the ability of Mr. Rabah to tell his employer about the serious charge against him. Further, the respondents must compensate Mr. Rabah for the comment made to him about being deported.

51In determining the amount, I have considered comparators in the caselaw although I agree with the parties that the case is unique and as such the comparators are only helpful to some degree.

52It is apparent that a single comment or comments made during a short period are compensable although usually at a modest level. See for example, Baisa v. Skills For Change 2010 HRTO 216; Brooks v. Total Credit Recovery Limited 2012 HRTO 1232; and Pardy v. Graham 2012 HRTO 122. In this case, it is notable that the comments made to him during fingerprinting have caused Mr. Rabah ongoing flashbacks and thus appears to have had a considerable subjective impact.

53I have also considered past awards involving findings of race discrimination in the context of police and/or security guard activities although the awards have arisen in circumstances where there is a detention or arrest: Abbott v. Toronto Police Services Board, 2009 HRTO 1909 ($5000.00 for inappropriate conduct in questioning and arresting the applicant); Phipps v. Toronto Police Services Board ($10,000.00 for inappropriate comments and conduct in the course of an unwarranted investigation); Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 ($20,000 for verbal abuse, an inappropriate comment and an intensive suspicious investigation); and Maynard v. Toronto Police Services Board, 2012 HRTO 1220 $40,000.00 for inappropriate conduct during an investigation including being held at gunpoint).

54In this case, having considered the parties’ submissions and having regard to all of the circumstances, including the nature of the violations (one of which I view as serious, the other as more minor), the impact on the complainant and its duration, I find that the appropriate award is $13,000.00 for compensation for injury to dignity, feelings and self-respect arising out of the discrimination.

Other Losses

55Mr. Rabah also seeks compensation for losses which he submits flow from the discrimination found: compensation for legal costs incurred in the efforts to get his job back in the civil proceedings engaged; and compensation for the costs incurred in obtaining a transcript in the liability portion of the hearing before the Tribunal (which were incurred when Mr. Rabah retained counsel for the purpose of final argument). Counsel for Mr. Rabah characterizes these losses as “consequential losses” which are necessary to restore Mr. Rabah to the position he would have been in had the violations not occurred.

56I do not find that either “loss” is recoverable. I have not found that the respondents terminated Mr. Rabah or were responsible for the ultimate loss of his job and therefore I do not find them responsible for his legal costs incurred in efforts to get his job back. Further, and in any event, the claim for recovery of legal costs in the civil/grievance proceeding and the transcript cost in this proceeding are essentially claims for legal costs. The Tribunal has no jurisdiction to award legal costs. See XY 2012 HRTO 726 and the cases cited at paragraph 284.

Interest

57I also find it appropriate to order pre and post- judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). Prejudgment interest shall be payable on the amount ordered from the date of the discrimination, June 21, 2004, to the date of this Decision and post-judgment interest shall be payable on any amount not paid within 30 days of the date of the Decision.

ORDER

58The Tribunal orders:

The Toronto Police Services Board shall pay Ahmed Rabah Dungus the sum of $13,000.00 together with pre-judgment interest from June 21, 2004 calculated in accordance with the CJA. Post-judgment interest shall be payable on any amount not paid within 30 days of the date of the Decision in accordance with the CJA.