HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nadeem Chaudhry
Applicant
-and-
Choice Taxi of Cornwall Inc.,
Michael Vervoort, Sami UllahChaudhry and Clifford Thompson
Respondents
DECISION ON REMEDY
Adjudicator: Leslie Reaume
Indexed as: Chaudhry v. Choice Taxi of Cornwall Inc.
WRITTEN SUBMISSIONS
Nadeem Chaudhry, Applicant
Yavar Hameed, Counsel
Choice Taxi of Cornwall Inc.,
Michael Vervoort, Sami UllahChaudhry and Clifford Thompson, Respondents
Stephane Perrault, Counsel
Introduction
1This is a Decision dealing with the issue of remedy in respect of an Application filed by Nadeem Chaudhry (‘the applicant”) under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal and discrimination on the basis of colour, ethnic origin, place of origin, creed, and race in respect of employment and contracts.
2In Decision 2012 HRTO 391 (“Liability Decision”), dated February 24, 2012, I found that the respondents had breached the Code with respect to some but not all of the applicant’s allegations. I deferred my decision on remedy in order to give the parties an opportunity to negotiate a final resolution.
3In the Liability Decision, I made the following comments from paragraphs 173 to 178 on the issue of remedy:
The applicant has proven discrimination and reprisal on the balance of probabilities in relation to the events of April 10, 2007 and that is sufficient to trigger a remedy under the Code. The corporate respondent is responsible for the individual respondents and other shareholders who acted in some way to prevent the applicant’s proposal from receiving full and fair consideration at the April 10, 2007 meeting and is jointly and severally liable with the individual respondents for any remedies arising from the Decision.
The Tribunal is empowered under the Code to make remedial orders addressing compensation, restitution and anything else which, in the opinion of the Tribunal, would promote future compliance with the Code.
After careful consideration of the implications of the various orders that would be available to me in these circumstances, I have decided to defer my decision on remedy for 90 days to permit the parties an opportunity to discuss a possible resolution.
In order to give some framework to that discussion I will say that if the matter is returned to me I will order some sum for general damages having regard to the factors set out in previous decisions of the Tribunal such as Sanford v. Koop, 2005 HRTO 28. I would also consider the necessity for a public interest remedy which would address any deficiencies in policy and training such as the introduction of more objective standards in the process for selecting taxi owners. I do not believe that my findings support a remedy which would go so far as to treat the applicant as if he should have been accepted into Choice in April, 2007 and therefore I would not order the monetary compensation the applicant seeks for that period. It is important not to lose sight of the fact that the profound losses experienced by the applicant, both personal and professional, are not exclusively related to his efforts to obtain an affiliation with Choice.
I will consider directing Choice to offer the applicant the opportunity to bring his taxi to Choice either immediately or at the first available opportunity. However, given the fact that the decision to become affiliated with Choice requires a commitment on the part of both parties to work toward a harmonious, productive and lasting relationship, I would prefer to give them an opportunity to decide whether or not they can reconcile themselves to that option in the absence of a direction.
The parties are to advise the Registrar within 90 days of the date of this decision whether or not they have reached an agreement, failing which, a decision on Remedy will be issued.
The Positions of the Parties
The Applicant
4The applicant is seeking the following remedy:
$30,000.00 in damages for injury to dignity and hurt feelings;
Damages for lost income as a result of the loss of opportunity to operate his taxi with Choice from 2007 to 2010;
The opportunity to become a shareholder in Choice at fair market value as of April, 2007;
A policy remedy directed at future compliance with the Code and protection from reprisal should the applicant join Choice as a shareholder.
The Respondents
5The respondents take the position that the applicant is not entitled to lost wages and that the appropriate amount of damages for injury to dignity, given the nature of the breach, is at most, $2500.00. The respondents disclosed elements of the settlement negotiation which I have not taken into consideration. With respect to a policy remedy, the respondents indicated a willingness to consider policy improvements but argued that the Tribunal’s ability to impose a system for choosing shareholders should be limited because of the inherently personal nature of that choice.
Analysis
6Section 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:
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.
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.
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.
7In paragraphs 166 through 172 of the Liability Decision, I made the following factual findings which are relevant to determining the appropriate remedy:
The conclusion I have reached on the totality of the evidence is that the action which gives rise to a finding of reprisal is not the failure of the shareholders to bring the applicant and his taxi to Choice. It is the actions of a few key shareholders who intentionally engaged in efforts to prevent the rest of the shareholders from giving fair consideration to the applicant’s proposal. The applicant argued that the process engaged in at the shareholder meeting was tainted and I agree. However, that does not lead directly to the conclusion that but for the discrimination and reprisal the applicant would have been invited to bring his taxi to Choice and therefore he should be compensated for the losses he has sustained since April 10, 2007. In order to substantiate that claim, the applicant would have to prove on the balance of probabilities that but for the discrimination and reprisal, the shareholders would have agreed to exercise their discretion in his favour.
It is important to emphasize that the shareholders of Choice had not put out a call for new taxis. In addition, they had moved away from the informal process they used to bring in new taxis and it was not disputed that there were people on a waiting list who had a reasonable expectation that they would have a fair opportunity to apply if there was an opportunity. The respondents argued that the applicant was asking the shareholders to apply the same kind of discretionary decision-making which was the subject of his claim against them.
There was sufficient evidence, which was not contested, that the majority of the shareholders were of the view that their profits would be affected by the introduction of another taxi. Apart from Mr. Conway and Mr. St. Denis, all of the witnesses who voted against the applicant testified that they were motivated to cap the fleet on the basis of the perception that their profits would be affected by bringing in another taxi.
I accept this explanation for a number of reasons. There is no dispute that the shareholders of Choice were not looking to add new taxis to their fleet. A movement had begun in January 2007 (well before the events of March 2007) which triggered a renewed effort on the part of the applicant to become affiliated with Choice, to put some formal limits on the growth of the organization. Although this perception was based on their experience as taxi owners rather than any formal study or report, even Mr. Conway testified that there was significant concern and discussion about the issue of profits. He and Mr. St. Denis also initiated a motion to cap the number of shareholders for the second time since October 2006, which supports an ongoing concern about maximizing profits. The motion to bring the applicant into Choice was defeated 12 to 5. With 4 more votes from the key shareholders, the applicant would have had 9 votes out of 17; however, I did not find the testimony of Mr. Thompson and Ms. Lalonde lacking in credibility on the issue of profits and cannot find on the balance of probabilities that they would have voted in favour of bringing any new owner into the company. In addition by the time of the hearing, three years later, the cap on the fleet remained unchanged.
I also accept that Ms. Lalonde and others who were motivated to adhere to the new selection process did so in part because of a bona fide belief that it was the appropriate thing to do. Mr. Huygen, whose credibility was never called into question, testified that he had learned from the human rights training that the shareholders could not bump the applicant ahead of others on the list. I recognize that once the applicants who are on the list are put before the shareholders they are assessed on the basis of personal preference. However, it is a legitimate concern that the impact of bringing the applicant into the company on an exceptional basis would result in significant unfairness to the others who had applied before and were waiting for an opportunity to be considered.
All of this goes back to the applicant’s original concern that the bylaw permits the owners of Choice to control the manner in which licensed taxi owners receive dispatch services to operate their taxis. It is not the role of the Tribunal to remedy any general unfairness which arises from the application of this bylaw. Even if the shareholders were wrong and profits would be unaffected by the introduction of a new taxi, they were entitled to make that decision.
While these explanations are not sufficient to avoid a finding that the Code has been breached, they are relevant to determining whether there is a sufficient nexus between the conduct of the respondents and the losses claimed by the applicant.
8I made the additional factual finding that the applicant’s wage loss following March 2007 was attributable to the fact that his affiliation with Veteran’s had come to an end. I also found that by April 2007 the applicant was perceived by the respondents and other shareholders as a troublemaker and that the introduction of the motion to cap the fleet of taxis at the April 2007 meeting was motivated, in part, to prevent the applicant from becoming a shareholder in the future.
9Subsection 45.2 (1)1 of the Code directs the Tribunal to consider what loss arose “out of the infringement” of the Code when considering the proper amount of monetary compensation. In Airport Taxicab (Malton) Assn. v. Piazza, (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.), the Ontario Court of Appeal at para. 45017, stated that the “purpose of the compensation is to restore an applicant as far as is reasonably possible to the position that the applicant would have been in, had the discriminatory act not occurred”.
10The applicant is seeking compensation for the loss of opportunity to become a shareholder. In Ravi DeSouza v. 1469328 Ontario Inc., 2008 HRTO 23, the Tribunal reviewed two approaches to assessing compensation for lost opportunity, without endorsing either:
In cases of the loss of opportunity to be considered for employment, the Tribunal must compensate for the lost opportunity to compete for a position in a non-discriminatory fashion, while taking into account the fact that the applicant might not have obtained the position in any event (even absent any discrimination). In the federal jurisdiction, it has been suggested that if there is a serious possibility that the individual would have obtained the position, then there is loss that is capable of giving rise to an award of damages. The assessment of the amount of damages requires an assessment of the likelihood that the person would have obtained the position in any event (per Marceau J.A. in Canada (Attorney General) v. Morgan, 1991 CanLII 13184 (FCA), [1992] 2 F.C. 401 [21 C.H.R.R. D/87] (C.A.); Chopra v. Canada (Attorney General) (No. 2), 2007 FCA 268, [2007] F.C.J. No. 1134 (QL) [reported 61 C.H.R.R. D/248] (C.A.).
Another approach is to assess, on a balance of probabilities, whether the applicant would have obtained the position. If not, then no special damages would flow. If so, then lost wages resulting from the lost employment would flow.
11In Seguin v. Great Blue Heron Charity Casino, 2007 HRTO 33 at para. 65 the Tribunal states:
The test for assessing damages for lost opportunity was set out in Dantu v. North Vancouver District Fire Department (1986), 1986 CanLII 6503 (BC HRT), 8 C.H.R.R. D/3649, cited with approval by this Tribunal in McKinnon v. Ontario (Ministry of Correctional Services), [2007] O.H.R.T.D. No. 5. The party seeking damages must establish a reasonable possibility that they would have been hired. The greater the likelihood the party would have been hired, the higher the damage award.
In Seguin, the Tribunal assessed the evidence and awarded the applicant 50% of her lost wages.
12In the Liability Decision I set out my reasons for finding that the evidence would not support a wage loss associated with the failure on the part of the respondents to bring the applicant and his taxi to Choice in April 2007. The applicant was not applying for a position that existed, the respondents had no obligation to take the applicant into Choice in any capacity, and the applicant’s losses are fundamentally attributable to the fact that his affiliation with Veteran’s had come to an end. For those reasons, I decline to award the wage loss the applicant is seeking.
13However, in my view, that does not fully address the issue of lost opportunity, nor does it adequately account for the monetary consequences of the conduct of the respondents fundamentally deprived the applicant of any future opportunity to become a shareholder.
14Determining whether there was a reasonable or serious possibility that the applicant would have been successful in becoming a shareholder in Choice is difficult to apply in circumstances. There was no evidence that the applicant was unsuitable as a candidate for shareholder in Choice, in fact, quite the opposite was proven.On the other hand, in April 2007, Choice was not actively looking for new shareholders.
15The real question is whether, given the attitude toward the applicant displayed in the meeting in April 2007, he would ever have been offered a role as a shareholder. The cap on the fleet was partly motivated by profits. However, the motivation to introduce the cap was also directed at ensuring that the shareholders would not have to consider the merits of the applicant’s request and put themselves at risk of further allegations of discrimination. After April 2007, there was no reasonable or serious possibility that the applicant would ever have been offered the opportunity to become a shareholder. However, that situation exists because of the conduct of the respondents and not the qualifications of the applicant.
16In these circumstances it would work a serious injustice to find that the applicant had no serious likelihood of becoming a shareholder and then refuse to provide him with a remedy on that basis. The only way to remedy this loss of opportunity is to permit him to become a shareholder at fair market value, adjusted for inflation, as of April 2007. Given the nature of the reprisal, the reasons behind the cap on the fleet, and the lack of objective criteria used to bring taxi owners into Choice, I do not believe that the applicant would have been chosen without intervention by the Tribunal. I cannot say exactly when after April 2007 the applicant might have become a shareholder but for the violation of the Code, but that is due to the conduct of the respondent. In my view this remedy strikes a balance among a number of factors: the remedial imperatives of the Code; the serious nature of the reprisal; the consequences experienced by the applicant; and the recognition that the respondent is not responsible for the many burdens that were imposed on the applicant at that time in his life
17Subsection 45.2(1)1 also encompasses monetary awards made to compensate for intangible loss and suffering experienced because of a breach of the Code. A number of principles have been relied upon by the Tribunal in determining losses under this section of the Code:
The two primary criteria are the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. The second criterion recognizes the applicant’s particular experience in response to the discrimination: Arunachalam v. Best Buy Canada, 2010 HRTO 1880; Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16 ;
The Divisional Court found that compensation for the “experience of victimization” is predicated upon a number of considerations, including: the impact of the infringement; the duration, frequency and intensity of the offensive conduct; the vulnerability of the applicant; the objections to the offensive conduct; and knowledge that the conduct was unwelcome: ADGA Group Consultants Inc. v. Lane, 91 O.R. (3d) 649, 2008 CanLII 39605 (ON S.C.D.C.); Sanford v. Koop, 2005 HRTO 53 at paras. 34-38;
The quantum of damages for this loss should not be set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee”: ADGA Group Consultants Inc., above;.
Dignity and self-respect can be diminished by how one is perceived and treated by others, as well as how one feels about that treatment. Rocha v. Pardons and Waivers of Canada, 2013 HRTO 537;
A compensatory order is not a punitive order, but consideration of the actions of the respondent cannot be avoided in determining whether dignity was violated and how. Rocha, above.
18In Sanford v. Koop, above, the Tribunal summarized the following factors (not a closed list) frequently used in assessing the appropriate quantum of general damages for the violation of the right to be free from discrimination:
Humiliation experienced by the applicant
Hurt feelings experienced by the applicant
Applicant’s loss of self-respect
Applicant’s loss of dignity
Applicant’s loss of self-esteem
Applicant’s loss of confidence
The experience of victimization
Vulnerability of the applicant
The seriousness, frequency and duration of the offensive treatment
19In this case, the reprisal against the applicant was of a deeply personal nature which he experienced at one of the most challenging times in his life. It was particularly difficult for the applicant because he had become known as a person who advocates against discrimination. He testified that he was humiliated when he learned from his supporters about the attitudes displayed at the meeting in April 2007. His letters to Choice preceding that decision demonstrate his sense of vulnerability, humility and desperation.
20Objectively, the decision to interfere with consideration of the merits of the applicant’s request to bring his taxi to Choice was manifestly unfair. The request was described by the applicant’s supporters as a compassionate or humanitarian request from a member of their taxi community in dire straits. The interference was intentional and exercised in a context where the participants understood the imbalance in power that they were exploiting.
21On the other hand, the applicant’s testimony encompassed the range of feelings he experienced on the basis of his perception that he had experienced a number of acts of discrimination over many years by the shareholders at Choice. A compensatory award for injury to dignity, feelings and self-respect should reflect the seriousness of a respondent’s conduct but also have its nexus in the facts which the applicant was able to prove.
22I was unable to find a decision of the Tribunal which was sufficiently similar in nature to enable a full comparison. In Bertrand v. Primary Response, 2010 HRTO 186, which involved allegations of reprisal and racial discrimination in the employment context, the applicant received compensation for injury to dignity in the amount of $8000.00 where only reprisal was proven. In Chan v. Tai Pan Vacations, 2009 HRTO 273, the Tribunal found that the applicant’s termination was an act of reprisal for the complainant having filed a previous human rights complaint and ordered compensation for injury to dignity in the amount of $15,000.00. In the circumstances of this case, I find that an appropriate compensatory order for injury to dignity, feelings and self-respect is $15,000. The respondents are jointly and severally liable for this award.
Future Compliance
23The respondents argue that the Tribunal should not impose directions which would prevent them from making the inherently personal choice of persons with whom they will share their business. With respect, the evidence was clear that the manner in which they exercised their personal choice is what brought about the breach of the Code in the first place. In addition, the evidence was clear that when Choice was formed, anyone was welcome to participate. At other times, Choice has offered the opportunity to those receiving dispatch services to become shareholders without regard to issues of personal choice, with the result that some have accepted the offer and some have not.
24In my view, the remedial purpose of the Code is best served by directing the respondents to hire a trained human rights professional to review the policies which govern the selection of shareholders and those to whom dispatch services are provided and to improve those policies relying both on the consultant’s expertise and the findings I made in the Liability Decision. The respondents will be required to adopt, both in policy and in practice, more objective measures for determining affiliations with taxi drivers which are directed at ensuring future compliance with the Code. Each shareholder will be trained in relation to the new policy.
ORDER
25The Tribunal makes the following orders:
a) Within 30 days of this Decision, the respondents will offer the applicant the opportunity to become a shareholder at fair market value, adjusted for inflation, as of April 2007. I will remain seized of any dispute which arises from the calculation of this remedy;
b) Within 30 days of this Decision, the respondents shall pay $15,000 to the applicant for violation of his inherent right to be free from discrimination, and for injury to his dignity. This amount is an award of monetary compensation in the nature of general damages for injury to dignity, feelings and self-respect;
c) The respondents shall pay the applicant pre-judgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (b), above, from the date of the Complaint; and
d) In the event that the respondents fail to make the payment described in paragraph (b) above within 30 days of the date of this Decision, the respondents shall pay post-judgment interest on any accumulated principal and interest, calculated in accordance with section 129 of the Courts of Justice Act, from the date that is 30 days after the date of this Decision.
e) Within 90 days of the date of this Decision, the respondents will retain a human rights professional to carry out the directions set out in paragraphs 23 and 24 of this Decision. That work will be completed no later than 90 days after the consultant is retained. The respondents will provide notice to the applicant when the consultant is retained. When the work is completed, the respondents will provide the applicant with a letter setting out a summary of the consultant’s work and attaching copies of the organization’s new policies.
Dated at Toronto, this 15th day of May, 2013.
”signed by”
Leslie Reaume
Vice-chair