Papa Joe's Pizza v. Ontario (Human Rights Comm.)
480/05 (Toronto)
2007-06-26
Ontario Divisional Court
CHRR Doc. 07-399
Papa Joe's Pizza and Frank Toufighjou Appellants
v.
Ontario Human Rights Commission, Human Rights Tribunal of Ontario, Nicole Metcalfe and Martin Hoogerdijk Respondents
Date of Decision: June 26, 2007
Before: Superior Court of Justice, Ontario Divisional Court, Aston, Carnwath and Greer JJ.
Appeal from: (sub nom. Metcalfe v. Papa Joe's Pizza & Chicken Inc.), CHRR Doc. 05-701, 2005 HRTO 46
Court File No.: 480/05 (Toronto)
Appearances by: Raj Dhir and Sheena Scott, Counsel for the Commission Beth Symes, Counsel for the Appellant, Frank Toufighjou James Schneider, Counsel for the Respondent Human Rights Tribunal of Ontario Nicole Metcalfe and Martin Hoogerdijk, on their own behalf
APPEALS AND JUDICIAL REVIEW — appeal of remedy — error of law in determining remedy, findings on the evidence and interpreting evidence — inadequate reasons for decision — EVIDENCE — similar fact evidence — credibility — COURTS — appeal court's authority to substitute and set aside remedy
Summary: The Ontario Superior Court of Justice, Divisional Court, upheld the decision of the Human Rights Tribunal of Ontario, which found that Papa Joe's Pizza and Frank Toufighjou sexually harassed Nicole Metcalfe and retaliated against her and her stepfather, Martin Hoogerdijk, for making a human rights complaint.
The application for judicial review was brought by Papa Joe's Pizza and Mr. Toufighjou who argued, among other things, that the reasons given by the Tribunal were not sufficient to support the findings of discrimination.
The Court agreed that the reasons for the decision are "sparse" and "leave a lot to be desired". The issue was whether they were so inadequate as to constitute a denial of natural justice. The Court found that the Tribunal's reasons met the minimum standard required to sustain the findings against the respondents.
However, the reasons given did not support the compensation and public interest remedies ordered. The Court substituted its own awards.
The Court confirmed general damages of $12,000 for Ms. Metcalfe but reduced the amount for mental anguish from $8,000 to $1,000. Special damages awarded to Ms. Metcalfe were reduced from $5,000 to $2,920. The Court also reduced the special damages awarded to Mr. Hoogerdijk from $1,800 to $1,000, confirmed the awarded to him of $8,000 for general damages, and struck the award of $4,000 for mental anguish.
CASES CITED
Law Society of Upper Canada v. Neinstein, [2007] O.J. No. 958 (Div. Ct.): 11, 13, 23
Papa Joe's Pizza v. Ontario (Human Rights Comm.) (2005), CHRR Doc. 05-701, 2005 HRTO 46: 1
R. v. W. (D.), [1991] 1 S.C.R. 742: 11
LEGISLATION CITED
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 5(1): 16
s. 7(2): 16
s. 7(3)(a): 16
s. 12: 16
s. 41: 21
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15: 2
ASTON J.
[1] Frank Toufighjou appeals from the decision and order of the Human Rights Tribunal, November 7, 2005 [CHRR Doc. 05-701]. The Tribunal found that Mr. Toufighjou violated certain provisions of the Human Rights Code, R.S.O. 1990, c. H.19 (the " Code") when he terminated the employment of the complainants Nicole Metcalfe and Martin Hoogerdijk on August 9, 2001. The Tribunal ordered Mr. Toufighjou to pay Ms. Metcalfe $25,000 and Mr. Hoogerdijk $13,800. The Tribunal also made three "public interest orders" requiring Mr. Toufighjou:
(1) to implement at any present or future place of business a comprehensive workplace harassment and discrimination policy;
(2) provide a copy of the Commission's policy, entitled "Gender Harassment and Inappropriate Gender Related Comments and Conduct" to all future employees; and
(3) provide the Commission with the names and addresses of any female employees who leave positions of employment with him during an ensuing two-year period.
Though all three public interest orders would be set aside if the decision of the Tribunal is quashed, Mr. Toufighjou also separately identifies the third public interest order as "wrong in law, inappropriate and inconsistent with achieving compliance with the Code" in his Notice of Appeal.
The issues to be decided are:
Did the Tribunal err in admitting similar fact evidence?
Did the reasons meet the minimum standard required to support the findings that Mr. Toufighjou violated the human rights of Ms. Metcalfe and Mr. Hoogerdijk?
Did the reasons meet the minimum standard required to support the compensations awards and public interest orders?
Did the Tribunal err in admitting similar fact evidence?
[2] Mr. Toufighjou submits that the Tribunal erred in admitting evidence from the witnesses Boxall and Laroque as similar fact evidence at the Tribunal hearing. His counsel objected to the similar fact evidence, citing the relevant case law. The Tribunal member considered those cases, and acknowledged their applicability in his decision to admit the evidence. Similar fact evidence in a case such as this is by its nature prejudicial. The issue is whether its probative value outweighs that prejudice. Though s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 relaxes the rules of evidence somewhat, caution is required.
[3] Factors to consider in ruling on the admissibility of similar fact evidence in this case include:
(a) whether the evidence put forward does indeed involve similar facts;
(b) whether the evidence is put forward simply to cast doubt on Mr. Toufighjou's character, or to imply or establish his propensity or predisposition towards committing such acts (in which case it should not be admitted); and
(c) whether the introduction of the evidence will confuse the issues by requiring the Tribunal to engage in collateral issues beyond the subject matter of the complaint.
[4] The similar fact evidence tendered involved different, but similar, facts. Ms. Metcalfe, Ms. Boxall and Ms. Laroque were all young women hired by Mr. Toufighjou to work closely with him at Papa Joe's Pizza. Ms. Metcalfe and Ms. Boxall received cash advances from him, which he apparently held over their heads. Both were subjected to "signature" comments quite similar in nature. They were subjected to comments and solicitations in private places, such as Mr. Toufighjou's office. Both testified that the comments and behaviour gradually escalated from comments, to solicitation, to unwanted touching. Though Ms. Laroque's evidence involved only one particular incident, it bore a similarity to the kind of looks and comments attributed to Mr. Toufighjou by Ms. Metcalfe and Ms. Boxall.
[5] The similar fact evidence went beyond mere propensity to commit a particular act or acts, or evidence of bad character. From the outset, this case was clearly a credibility contest between Ms. Metcalfe and Mr. Toufighjou. It is evident the Tribunal member concluded the similar fact evidence would have probative value if it could assist him in determining credibility.
[6] Though the Tribunal member did not make an explicit finding with respect to the credibility or truthfulness of the evidence of Ms. Boxall and Ms. Laroque, it is implied in the reasons for the decision. The Tribunal member relies upon it to corroborate the evidence of Ms. Metcalfe. This does not necessarily mean the Tribunal member accepted all of the evidence of those witnesses, but there is no indication that the Tribunal was confused by collateral issues.
[7] The Tribunal member was cognizant of the correct legal test for the admission of the similar fact evidence, had the discretion to admit it, and reasonably exercised that discretion.
Did the reasons meet the minimum standard required to support the findings that Mr. Toufighjou violated the human rights of Ms. Metcalfe and Mr. Hoogerdijk?
[8] The reasons for the decision are sparse and, from the perspective of appellate review, leave a lot to be desired. The issue is whether those reasons are so inadequate and insufficient that they constitute a denial of natural justice based on procedural fairness. The duty to provide meaningful reasons is important. Given the statutory right of appeal, the Tribunal has an obligation, not just to the parties, but to the appellate tribunal. The problems associated with the failure to articulate reasons are compounded in cases such as this where the proceedings are not recorded and the appellate court must rely on a "secondary" record. On the other hand, reasons may be short or sparse and need not explicitly examine all the evidence, so long as the reasoning process is ascertainable.
[9] The onus of proof was on Ms. Metcalfe and Mr. Hoogerdijk to prove their complaints on a balance of probabilities. The appellant submits that the "standard of proof", that is to say the quality of evidence needed to satisfy the burden of proof, rises in proportion to the gravity of the allegation and the seriousness of the consequences. We agree that, given the serious consequences for Mr. Toufighjou, there needs to be clear and cogent evidence in order to condemn his conduct and to find that he violated the rights of the complainants under the Code.
[10] The outcome in this case depended almost entirely on credibility. The Tribunal member accepted the evidence of Ms. Metcalfe and preferred it to the evidence of Mr. Toufighjou where their evidence was in conflict. In some cases, it may be appropriate for a trier of fact to conclude that the truth lies somewhere between two versions given by conflicting witnesses. This is not one of those cases. The evidence of Ms. Metcalfe and the evidence of Mr. Toufighjou is mutually exclusive on the crucial factual findings.
[11] Mr. Toufighjou contends that the process for assessment of credibility should be guided by the instructions given by a trial judge to a jury in a criminal case, albeit with a different burden of proof. That assessment process is set out in R. v. W. (D.), [1991] 1 S.C.R. 742. However, in Law Society of Upper Canada v. Neinstein, [2007] O.J. No. 958 (Div. Ct.), this Court considered whether the W.(D.) test controls the assessment of credibility of witnesses in the administrative law context. We agree with the conclusion in Neinstein (at § 52—59) that the W.(D.) test may be helpful, but is not required in hearings before administrative tribunals. A failure to follow the test is not fatal, provided the trier of fact applies the correct burden and standard of proof.
[12] On the issue of credibility, the Tribunal member relies on the fact that Ms. Metcalfe's evidence was corroborated. Though the reasons point only to the similar fact witnesses, Ms. Metcalfe's evidence was also corroborated, to some degree, by her mother, her step-father and the police officer.
[13] There is no ambiguity in the reasons when it comes to the critical finding of credibility. Though the Tribunal did not indicate why it disbelieved Mr. Toufighjou, that alone is not grounds to overturn its decision. See: Law Society of Upper Canada v. Neinstein, supra, at § 92.
[14] Once the Tribunal member accepts the evidence of Ms. Metcalfe as truthful, it becomes the "clear and cogent" evidence required to support the findings against Mr. Toufighjou because there is no credible evidence to the contrary.
[15] On the one particular allegation, that Ms. Metcalfe had been dismissed from her employment as a reprisal for asserting her rights under the Code, the finding does not depend on credibility. The Tribunal stated [at § 9] "The intention to reprise is established by Toufighjou's own direct evidence, but is also inferred from the timing of Metcalfe's dismissal, which occurred immediately after Officer Caddell met with Toufighjou to discuss Metcalfe's allegations". This finding in turn supports the determination that Hoogerdijk's rights were violated because of his family relationship with Ms. Metcalfe. In our view, it was reasonable for the Tribunal to conclude that Mr. Hoogerdijk was either fired or constructively dismissed because of his actions in accompanying his step-daughter in the assertion of her rights under the Code, when she confronted Mr. Toufighjou and then reported the allegations to the police. The Tribunal also found [at § 11] that "Toufighjou tried to ruin Hoogerdijk's reputation with his new employer by telling that new employer that Hoogerdijk could not be trusted".
[16] Though the reasons do not specifically connect findings of fact to the sections of the Human Rights Code pleaded by the complainants, the connection is readily apparent. The Tribunal found that Hoogerdijk was dismissed after and because he accompanied his step-daughter to confront Mr. Toufighjou about alleged sexual harassment in the workplace and, later, when she filed a police report. Hoogerdijk's "family status" and "association" with Metcalfe is not controversial, thereby engaging ss. 5(1) and 12 of the Code. At § 7 of the reasons, the Tribunal member specifically lists particulars of Ms. Metcalfe's evidence and accepts that evidence. It includes comments, solicitation and physical touching, which clearly amount to sexual harassment and sexual solicitation under ss. 7(2) and 7(3)(a) of the Code, and a violation of her rights to be free from sex discrimination under s. 5(1) of the Code.
[17] The Tribunal's reasons meet the minimum standard required to sustain the findings that Mr. Toufighjou violated the rights of both complainants under the Code.
Did the reasons meet the minimum standard required to support the compensations awards and public interest orders?
[18] The reasons fail to meet the minimum standard with respect to the compensation and public interest remedies that were ordered. In fact, counsel for the Ontario Human Rights Commission concedes that the reasons are inadequate with respect to Ms. Metcalfe's damages and the public interest remedies. Though both sides agree that the reasons are inadequate, at least in part, they disagree on what to do about that.
[19] This Court has the jurisdiction to substitute its own assessment of damages or compensation for that of the Tribunal. The question is whether the Court should exercise that jurisdiction or refer the matter back to the Tribunal either for additional reasons or a new hearing. The least appropriate course of action, in our view, is to send the matter back to the same Tribunal for supporting reasons, a course of action suggested by counsel for the Commission. If the matter were to be remitted back to the Tribunal, it ought to be a freshly constituted Tribunal, with a mandate to assess compensation and determine what public interest orders, if any, are appropriate. It is tempting to do so because there is no official transcript to which we can turn. However, we choose to address the issue ourselves based on the "secondary" record, the accuracy of which is not controversial in any material way. We do so primarily because we are not inclined to disturb the findings with respect to Mr. Toufighjou's liability for having breached the rights of both complainants. Remitting the matter back to the Tribunal would unreasonably delay the determination of compensation payable. These events took place almost six years ago.
[20] Regarding Ms. Metcalfe's claim for special damages, we agree with counsel for the Commission that the matter is not to be treated as a wrongful dismissal case. However, we also agree with counsel for Mr. Toufighjou that there needs to be a reasonable limit on the length of time Ms. Metcalfe is entitled to a wage loss claim, given that she was employed so briefly at Papa Joe's Pizza. In our view, a reasonable period of time would be from the date her employment was terminated, August 9, 2001, to the end of the calendar year. Taking an average of $325 a week, including tips, but reducing the amount by the $3,200 she was able to earn during that period, her wage loss claim would amount to $3,300. That sum should be further reduced by the $250 already paid to her and the $130 loan that she did not have to repay to Mr. Toufighjou, reducing her special damages to $2,920, rather than the $5,000 awarded.
[21] In the case of both Ms. Metcalfe and Mr. Hoogerdijk, it is obvious that the Tribunal member found Mr. Toufighjou's conduct to be "wilful", thus allowing discretion to award compensation for "mental anguish" under s. 41 of the Code. That said, we cannot ascertain from the reasons how that head of compensation was distinguished from, or measured independently of, "general damages".
[22] The general damages for Ms. Metcalfe assessed at $12,000 are generous, but not demonstrably unreasonable if those damages also include most of what is separately awarded for "mental anguish". We decline to interfere with the $12,000 award for general damages but reduce the amount for mental anguish from $8,000 to $1,000.
[23] In the case of Mr. Hoogerdijk, his special damages should be reduced by the $300 per week for each of the two weeks that he had planned to take as unpaid vacation and, further, by the $200 paid to him separately by Mr. Toufighjou, thereby reducing his special damages from $1,800 to $1,000.
[24] The $8,000 awarded to Mr. Hoogerdijk for general damages is generous, but not unreasonable, considering it includes the attempt by Mr. Toufighjou to undermine Mr. Hoogerdijk's subsequent relationship with a new employer. On the other hand, the separate award for "mental anguish" is discretionary as an additional remedy. Anything that might be compensable under that head is subsumed in the $8,000 for general damages. We decline to reduce the $8,000 for general damages, but strike from the award the separate component of $4,000 for mental anguish.
[25] The three public interest orders are set aside. The rationale for the remedies encompassed by these three parts of the order is self-evident, to a certain extent, but unsupported by any reasons, as conceded by Commission counsel. These orders may also have significant consequences for third parties that were not evidently taken into account. Finally, with respect to the third public interest order requiring Mr. Toufighjou to advise the Commission of the names and addresses of female employees who leave his employ, we conclude that such order is overly invasive and unreasonable.
[1] If counsel are unable to agree upon costs, brief written submissions may be made within the next twenty days.