GSB#2010-2873, 2010-2933

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Bokhari)

Association

• and -

The Crown in Right of Ontario (Ministry of Economic Development, Employment and Infrastructure)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE ASSOCIATION

Marisa Pollock Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Roslyn Baichoo Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 27, 2015; February 22 and April13, 2016

Decision

1On March 2, 2015, the Board issued its decision on the merits of two related disputes filed by the complainant, Mr. Imran Bokhari. Mr. Bokhari has been employed in the Ontario Public Service since May of 1999. The disputes arose following his transfer in March 2010 from the Ministry of Government Services (MGS) to the Ministry of Economic Development and Trade (MEDT), his experience at MEDT following his arrival there, and the ultimate surplussing of his position there. The disputes made two allegations against MEDT. First, that Mr. Bokhari was discriminated against because of his disability, and subjected to differential treatment by management, and second, that his position was declared surplus for bad faith and/or discriminatory reasons.

2The Board concluded its decision with the following:

157For all of the foregoing reasons the Board declares that the employer discriminated against Mr. Bokhari because of his disability by failing to accommodate him in contravention of the collective agreement and the Ontario Human Rights Code.

158The Board further declares that the employer contravened the collective agreement by exercising its management rights in bad faith by declaring Mr. Bokhari’s position surplus.

159Any and all remedial issues arising from this decision are referred back to the parties on the terms agreed upon. The Board remains seized in the event remedial issues remain outstanding.

3The parties have been unable to resolve the remedial issues. Apart from two medical documents filed as exhibits, submissions on remedy were made based on the evidence and the findings made in the Board’s decision on the merits, and legal authorities.

4By way of remedy, the Association seeks an order that Mr. Bokhari be reinstated in the position at MEDT which was declared surplus. In addition, it seeks compensation for him under the following heads of damages:

(a) Damages for breach of the Ontario Human Rights Code and article 3 of the collective agreement by failing to accommodate him.

(b) Damages for injury to feelings, dignity and self-respect.

(c) Wallace damage

(d) Punitive damages

AMAPCEO Submissions

5On heads of damages (a) and (b) above, AMAPCEO counsel relied on section 45.2(1) of the Human Rights Code. It reads:

45.2(1) 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 1 of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose rights 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.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

6Referring to para. 1 of s. 45.2(1), counsel argued that dignity, feelings and self-respect are at the core of the protection against discrimination provided by the Code as well as article 3 of the collective agreement. Relying on para. 2, she submitted that restitution is a remedy available for injury to dignity, feelings and self-respect. She relied on the definition of “restitution” in The Oxford Advanced Learner’s Dictionary, which includes “the restoration of something lost or stolen to its proper owner.” She submitted that Mr. Bokhari was wrongfully deprived of his position at MEDT. In order to make restitution the position should be restored to him by Board order.

7In support of the claim for human rights damages, counsel relied on a number of findings made by the Board. Despite Mr. Burns’ denial, the Board concluded that shortly after Mr. Bokhari’s transfer to MEDT, both the Director Mr. Burns, and Ms. Yousef, Mr. Bokhari’s direct manager, became aware of all of his health issues, including the fact that he was receiving psychiatric treatment. The Board found that despite that knowledge and supporting medicals from Mr. Bokhari’s treating medical professionals, Ms. Yousef did not even turn her mind to consider whether Mr. Bokhari’s disability could be accommodated. Instead, the employer built up an untrue case to be able to say that accommodation was not possible. Counsel submitted that this evidence shows that the employer had no interest at all in accommodating Mr. Bokhari, but was solely motivated by its own interests. Ms. Yousef’s single minded position was that Mr. Bokhari must adhere to the office core hours. She ignored clear medial evidence that Mr. Bokhari had severe physical symptoms in the early part of the day, and pressured him to work the same hours as the rest of the office staff. She did not even consider whether he could be allowed to start later in the day as recommended by his physician.

8Counsel pointed out that while Mr. Burns had testified about business reasons for eliminating Mr. Bokhari’s position, the Board found virtually all of that evidence to be not credible. The Board found that while Mr. Bokhari was a difficult employee to manage, the employer had other ways of addressing those problems. The Board concluded that Mr. Burns instead chose to get rid of Mr. Bokhari through the guise of a surplus. Counsel pointed out that the bad faith motivation was further evidenced by the manner Mr. Bokhari was escorted out from the workplace, how he was denied access to his work station, e-mail and computer, and the employer’s failure to make any attempt to find a direct assignment for Mr. Bokhari following the surplussing of his position. The Board had concluded that Mr. Bokhari was discriminated against by the employer’s failure to accommodate, and that his position was declared surplus in bad faith. At the time Mr. Bokhari was 54 years old, and had various health issues. In that condition, he suffered following the surplus, not knowing whether he would ever be working in the OPS again.

9Counsel acknowledged that Mr. Bokhari continued to receive his wages without interruption from the date of his surplus until he was ultimately assigned to a position at the Ministry of the Environment. However, she submitted that dignity of work is not achieved by “getting paid for sitting at home”. Counsel submitted that in the circumstances it is reasonable to conclude that Mr. Bokhari’s dignity and self-worth was negatively affected based on his own testimony, even in the absence of specific medical evidence. Reliance was placed on the following authorities: Arunachalam v. Best Buy Canada, 2010 HRTO 1880; ADGA Group Consultants Inc. v. Lane, (2008) O.R. (3d) 649 (Ont. SCDC); Wesley v. The Grounds Guys, 2014 HRTO 1591; Wilson v. Solis Mexican Foods Inc.., 2013 ONSC 5799; De Abreo v. Humber Institute of Technology, (2010) HRTO 2404; Bhasin v. Hrynew, (2014) 2014 SCC 71, 3 S.C.R. 494 (S.C.C.) and Re Ranger, (2010) 235 LAC (4th ) 324 (GSB-Leighton).

10Counsel for AMAPCEO relied on the judgement of the Supreme Court of Canada in Wallace v. United Grain Growers Ltd. 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701 in seeking damages for the manner in which the employer treated Mr. Bokhari following the notice of surplus. Reference was made to the findings by the Board that Mr. Bokhari was personally marched out by the Director; that his access card was immediately disabled; he was denied access to his e-mail and telephone; and that he was forcibly locked out of his office. She pointed out that the Board concluded that Mr. Burns acted out of antipathy towards Mr. Burns, and that within hours, if not minutes, it would have been common knowledge in the office that Mr. Bokhari had been escorted out by the Director after being served notice of surplus.

11AMAPCEO also sought punitive damages. Counsel acknowledged that punitive damages are awarded only in exceptional circumstances where conduct is extremely malicious, oppressive and high handed. Counsel noted the Board’s finding of bad faith. The Board concluded that the employer decided to get rid of an employee who presented work related problems including attendance and performance issues through the guise of a restructuring and surplussing of his position. This brings the employer’s conduct within this high standard. She argued that the conduct gives rise to an independent actionable wrong, namely, breach of the duty to act honestly and in good faith in dealing with employees. Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 SCR 494 (S.C.C.) was relied on.

12It was submitted that in the context of this particular case where the employer is the Province of Ontario, punitive damages are warranted as deterrence. The employer acted out of antipathy and anger. It abused its power under article 27 to declare positions surplus, to achieve its unlawful goal of getting rid of Mr. Bokhari. While Mr. Bokhari had union representation and the right to grieve, he had to go through a lengthy and stressful period of litigation to successfully prove that his rights were violated. Counsel submitted that with an award of punitive damages a strong message should be sent to the employer that such misuse of power would not be tolerated.

13Counsel argued that the employer maintained its sham that the surplussing of Mr. Bokhari’s position was for legitimate business reasons, before the Board. The Board concluded that the testimony was not believable. She pointed out that arbitrators consistently treat grievors more severely when assessing the level of penalty, when they fail to admit to wrong-doing and take responsibility. She submitted that the employer should be treated in similar fashion by an award of punitive damages, since it showed absolutely no remorse, failed to admit any wrongdoing, and took no responsibility.

14Counsel argued that the employer is not entitled to take the position that reinstatement is inappropriate on the grounds that there is no longer any trust between management at MEDT and Mr. Bokhari. To give any credence to such an assertion would be to allow the employer to rely on its own discriminatory and bad faith conduct to achieve its goal of getting rid of Mr. Bokhari. If the trust in the employment relationship was damaged, it was solely as a result of the employer’s unlawful conduct. It is up to the employer to take steps necessary to restore the trust. In the alternative, counsel sought an order that the parties attempt to mutually agree upon a position for Mr. Bokhari. In addition the following damages were sought.

General Damages

15For breach of the Human Rights Code, an order of damages in the amount of

$ 45,000 was sought.

16By way of damages for injury to feelings, dignity and self-respect, counsel submitted that the bad faith on the part of the employer is an aggravating factor. An award in the amount of $ 55,000.00 was sought.

Punitive Damages

17Counsel acknowledged that the Grievance Settlement Board has not to date awarded punitive damages. She submitted that this is a case that meets the high standard for an award of punitive damages. To meet the goals of an award of punitive damages, the amount of the award must be significant, she argued. She sought an order in the amount of $ 45,000.

18In conclusion, counsel for AMAPCEO submitted that while assessment of the quantum of damages is not a perfect science, the total amount of monetary damages sought by AMAPCEO is reasonable. She submitted that, the Board may, if it deems fit, distribute the amounts under the various heads differently, provided the total amount sought is awarded.

Employer submissions

19Employer counsel reminded that the Board has already made a declaration that the employer had discriminated against Mr. Bokhari because of his disability by failing to accommodate him. The Board has also declared that the employer exercised its management rights in bad faith by removing Mr. Bokhari from his position at MEDT in the guise of a surplussing resulting from restructuring. She submitted that in determining whether any additional remedies are warranted, the Board must have particular regard to the following:

• Mr. Bokhari had been employed by MEDT only for approximately six months, out of which he was on vacation for approximately one month.

• From the day he left MEDT, he was never without pay or benefits, and did not lose any seniority.

• within approximately three months following the surplussing Mr. Bokhari was matched and assigned to a comparable position. That position had the same pay rate as his former position at MEDT and was within the same classification.

• Well before his arrival at MEDT, Mr. Bokhari had a history of health issues, including depression.

• The attempt is to remedy violations that occurred over six years ago.

20Counsel pointed out that AMAPCEO relies on two factors in submitting that significant damages are warranted. First, it asserts that Mr. Bokhari was denied meaningful work, and second the manner in which Mr. Bokhari was treated after service of notice of surplus. She pointed out that, while Mr. Bokhari testified that he was denied meaningful work and treated like a summer student, the Board concluded otherwise. It held that the employer had redistributed the AGCO work for operational reasons and had not thereby discriminated against Mr. Bokhari. Similarly, while Mr. Bokhari testified that he was marched out by the director “like a show for all staff in the office”, the Board found that assertion to be unsubstantiated. The Board concluded that Mr. Bokhari tended throughout his testimony to exaggerate and dramatize events. Counsel urged the Board to have regard to Mr. Bokhari’s lack of credibility in assessing the weight to be attached to his own testimony on the impact of the employer conduct on his feelings and physical well-being.

21Counsel further submitted that it is important in deciding the quantum of damages to keep in mind that all of the cases relied upon by AMAPCEO in support of the amounts of damages it seeks involve termination of employment, and therefore loss of earnings and careers. In contrast, Mr. Bokhari was not terminated. He lost no pay, benefits or seniority. He is still employed in the OPS in a comparable position.

22Counsel submitted that an order to reinstate Mr. Bokhari in his former MEDT position is not appropriate. She pointed out that six years after he left MEDT, Mr. Bokhari is seeking to return to the very same workplace where he claims he was discriminated against and subjected to bad faith treatment. While Ms. Yousef had retired, the Director of the Branch at the time, Mr. Burns, is presently the CAO and Assistant Deputy Minister, with authority over that branch at MEDT Mr. Bokhari wants to return to. Particularly considering that Mr. Bokhari is currently employed at MOE in a comparable position, it was submitted that such an order would not be appropriate.

23Counsel submitted that no weight should be given to the two medical reports relied on by AMAPCEO in support of its claim for damages. Counsel pointed out that on the face of those medicals it is clear that the doctors relied on misinformation by Mr. Bokhari. He had informed that he had been terminated, and had been denied promotions. However, he was not terminated. He was surplussed, and was assigned to a comparable position in three months. In the interim period he lost no pay, benefits or seniority. Also, the evidence was that Mr. Bokhari had not applied for any promotions. Therefore, the employer was not to be blamed for his failure to get a promotion.

24Employer counsel opposed any award of monetary compensation in the form of human rights damages. Counsel submitted that the declaration of violation the Board has made affirms Mr. Bokhari’s rights and sends a clear message to the employer. Those declarations would serve the purpose of deterrence. In the alternative, it was argued that if the Board is inclined to award damages, the amounts should be at the low end of the spectrum, commensurate with the context in the present case, and not based on damages awarded in termination cases relied upon by AMAPCEO.

25Employer counsel reviewed each of the authorities relied on by AMAPCEO and distinguished them from the present case. It was submitted that those were cases of wrongful dismissal, whereas here Mr. Bokhari was not terminated. She was also of the view that the respondents’ wrongful conduct, as well as its adverse impact on the complainant in those cases were far more serious than here. In this regard, counsel urged the Board to have regard only to its objective findings of employer conduct and impact, and to give no weight to testimony of Mr. Bokhari about impact.

26Counsel acknowledged that damages may be awarded where the Code is violated even in the absence of any tangible loss. She submitted, however, that a violation does not necessarily result in an award of damages. Whether damages should be awarded, and if so, the quantum of damages would depend on the seriousness of the offending conduct, its impact on the complainant, and the context in which the violation occurred. Any remedial award should be reasonable in light of those factors. She urged the Board to have regard to that in comparing the amounts awarded in the authorities relied on by AMAPCEO.

27Employer counsel referred to AMAPCEO’s submission that amounts greater than those awarded in Re Ranger (supra) are warranted here, because unlike there, in the present case there is a finding of bad faith. She pointed out that the Board had found two violations, discrimination by failure to accommodate and surplussing by a bad faith exercise of management rights. Bad faith was found only in relation to the latter violation. She acknowledged that Wallace (supra) had held that the bad faith manner of termination may result in addition to a period of notice. She submitted, however, that bad faith does not automatically result in damages. She distinguished Wallace on the basis of the impact of the bad faith conduct. In Wallace the employee was terminated. The deprivation of his livelihood caused him to be ill. In contrast, Mr. Bokhari was never without income because he was not terminated. In the present case there is no finding that the employer’s conduct caused any of Mr. Bokhari’s health problems. In fact the evidence was that those problems existed well before his transfer to MEDT. In Wallace the court took into account the difficulty the employee would have finding employment. That was never an issue for Mr. Bokhari. It was submitted that the Board ought not to award “Wallace damages” to Mr. Bokhari.

28Employer counsel submitted that this is not a case where an award of punitive damages is appropriate. She argued, relying on the Supreme Court of Canada judgement in Honda (supra), that in considering punitive damages, the Board should have due regard to all other remedies provided. Punitive damages are necessary only where those remedies are not sufficient for the purposes of denunciation, deterrence and retribution. Counsel submitted that the employer’s bad faith conduct found is not egregious to a degree that warrants an award of punitive damages. The Board has already made a declaration that the employer surplussed Mr. Bokhari in bad faith in its decision which is publicly available. It names senior managers. That decision, together with other remedies the Board may award would serve the purposes of denunciation, deterrence and retribution.

29Counsel submitted that despite the Board’s finding of bad faith, the evidence is insufficient to warrant an award of damages for mental suffering. She pointed out that only two medical reports are in evidence. Neither of them supports a finding that Mr. Bokhari suffered injury to feelings, dignity or self-respect as a result of the violations. In the absence of medical evidence, and in light of the Board’s finding that Mr. Bokhari had a propensity to exaggerate, the Board was asked not to give any weight to his testimony about the impact of the employer’s conduct on his mental state and feelings.

AMAPCEO reply

29Counsel for AMAPCEO submitted in reply that the Board should not use its discretion to deny Mr. Bokhari the position he otherwise would have had but for the employer’s unlawful conduct. In the authorities relied on by the employer, arbitrators have in some circumstances awarded monetary compensation in lieu of reinstatement. However, those were discipline cases where the employers had terminated the grievors without just cause and the arbitrators had concluded based on the evidence that no viable employment relationship could be restored. In the present case there is no evidence to come to such a conclusion. For example, there is no evidence at all that any of Mr. Bokhari’s co-workers at MEDT had any issues with him or were unwilling to work with him. If the trust between the employer and Mr. Bokhari was destroyed, it was solely as a result of the unlawful conduct by the employer. Counsel urged the Board not to allow the employer to rely on its own misconduct to achieve its unlawful goal of getting rid of Mr. Bokhari.

31Counsel pointed out that while the medical documents refer to Mr. Bokhari’s “termination” in one instance, there is also a reference to him being “laid off” contrary to the employer’s submission there was no finding by the Board that the grievor lied to the doctors or that the medicals were based on the doctors’ belief that Mr. Bokhari had been terminated or laid-off, as opposed to surplussed. While there is no doubt that Mr. Bokhari suffered from depression prior to the employer’s unlawful conduct, the medical evidence establishes that his illness continued after the surplussing, and that the employer conduct had an adverse effect on his health. Counsel referred me back to the case law which, in her view, is clear that to claim damages for injury to feelings, dignity and self-worth it is not necessary to have specific medical evidence.

32Counsel disagreed with employer counsel’s attempt to distinguish authorities on damages on the basis that in those cases the employee had been discharged and not surplussed. She submitted that the only difference is that, unlike Mr. Bokhari, a discharged employee would have a claim for tangible losses like lost wages. However, for purposes of human rights damages, it makes no difference. In both situations the employee’s rights are infringed and he is subjected to mental suffering. She submitted that it is not the law that human rights damages may not be awarded unless the claimant had been terminated. To recognize such a legal principle would be to give employers a licence to discriminate as long as the employee is not terminated.

DECISION

33I begin by recording that there is no claim made for compensation for any actual pecuniary loss. Secondly, no issue was taken about the Board’s jurisdiction to issue any of the remedial orders sought by AMAPCEO. The dispute is about the appropriateness of those orders in the particular circumstances of this case.

34The parties have extremely divergent views of the appropriate remedy in this case. AMAPCEO noted the Board’s recognition in its decision on the merits that bad faith by the employer is a very serious allegation and would not be found in the absence of clear and cogent evidence. AMAPCEO has met that high standard. Counsel submitted that all of the heads of damages it seeks are warranted to send a clear message that abuse of the power under the collective agreement to achieve unlawful ends would have serious consequences for the employer. In light of the need for deterrence, of the type of the serious misconduct by the employer and its impact on Mr. Bokhari, the amounts claimed by AMAPCEO under the various heads are reasonable and should be awarded.

35The employer’s primary position is that the declarations made by the Board are adequate and no other remedial orders are necessary. In the alternative, counsel submitted that the findings made against the employer, as well as the impact on the employee in this case, are much less serious than in the cases relied upon by AMAPCEO. Therefore, if the Board decides to award damages under any of the heads despite the employer’s submissions, the amounts awarded should be at the low end.

36Having regard to the findings made in its decision, the Board rejects the employer’s position that no remedial orders are warranted beyond the declarations already made. The violations found were flagrant. In the circumstances, significant damages are warranted.

37Throughout her submissions employer counsel took the position that no damages, or alternatively only nominal damages, should be awarded because of another reason. She cited the finding by the Board that Mr. Bokhari tended to exaggerate and dramatize during his testimony. I do not accept the analogy drawn between this case and discipline cases. Arbitrators take into account admission of wrong-doing and demonstration of remorse as an important factor in determining the appropriate level of discipline. However, that is done for a very good and logical reason. The purpose of discipline is to correct behaviour. Where a grievor does not admit wrong-doing and does not take responsibility for his misconduct, that is evidence that supports a conclusion that a more severe penalty is required to drive home to the grievor the seriousness of his conduct and the need to correct his behaviour. None of that reasoning applies here. The Board did find that Mr. Bokhari exaggerated and embellished when describing employer behaviour in several instances. Nevertheless, the fact remains that based on credible and reliable evidence the Board did conclude that the employer engaged in conduct which constituted violations of the collective agreement and/or the Human Rights Code. In devising remedies for those violations, the testimony of the grievor rejected by the Board is irrelevant. However, in assessing the impact of the violations on Mr. Bokhari, the Board is required to make objective findings taking into account, among other factors, the credibility of that evidence.

CONCLUSION

Reinstatement to the position at MEDT

38As a general principle, I agree with counsel for AMAPCEO that, if otherwise appropriate, the mere fact that some six years had passed since Mr. Bokhari`s unlawful surplussing from the MEDT position is not, by itself, a reason to not reinstate him in that position. To accede to the employer’s argument would be to ignore the reality that the grievance and arbitration procedure, particularly where it involve loss of employment, can, and often does, take a long time to complete. Such an approach would mean that few grievors would be reinstated despite the merits of their grievances. Similarly, I find no merit in employer counsel’s critical comment that it makes no sense in returning Mr. Bokhari to the same workplace where he claimed he was mistreated and discriminated against. If the Board decides to reinstate Mr. Bokhari in the MEDT position, the employer would be expected to comply with its collective agreement and statutory obligations in managing him. The Board would not proceed on the assumption that the violations would continue. It is up to the employer to take steps to restore the trust that may have been destroyed as a result of its own unlawful conduct.

39Nevertheless, having regard to all of the circumstances, including the passage of time, I have decided not to order the reinstatement sought. It is clear from the Board’s decision that Mr. Bokhari entertained a false belief that he had ownership in the AGCO work, and that the AGCO work must remain as part of his position at MEDT. It was this belief and his desire to do the AGCO work that made the MEDT position very attractive to him. His position was that any other work, even if within his job description was demeaning. However, the Board concluded that as a matter of law, he had no ownership in the AGCO work, that the AGCO work was redistributed by the employer for operational reasons, and that the employer was entitled to do so. If reinstated, the MEDT position Mr. Bokhari would return to likely will not include AGCO work. The Board has no evidence about the present duties of the MEDT position in question. The Board certainly would not decide the duties to be assigned to any position. Given the passage of six years, the fact that Mr. Bokhari is currently employed in a position identically classified as the MEDT position with the same pay, and Mr. Bokhari’s unrealistic expectation (which he continued to express through his testimony) that he is entitled to perform AGCO work in the MEDT position, I do not consider it appropriate to order him reinstated in that position in order to remedy the violations. It is very probable that there would be further disputes about the duties in the position, mainly as a result of Mr. Bokhari’s continuing belief and insistence that he should be performing AGCO work and his attitude that any other assignment of duties would be demeaning.

40However, Mr. Bokhari was denied a position he would otherwise have occupied but for the bad faith surplussing. Instead, he was moved to a position in a different Ministry albeit in a comparable position. In lieu of reinstatement, in the circumstances it is appropriate to award monetary compensation for the loss of his preferred position at MEDT. It is therefore ordered that Mr. Bokhari be paid the amount of $8,000 in lieu of reinstatement in the MEDT position.

41The Board concluded that “the employer discriminated against Mr. Bokhari because of his disability by failing to accommodate him”. It is trite to note that to remedy a breach the Code and the collective agreement, monetary compensation may be awarded for more than quantifiable losses such as loss of wages and benefits.

42Human rights damages are compensatory and not punitive. In Adga Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649 (Ont. Div. Ct.) at pp. 684-685, the Court observed as follows:

136As early as 1984, the legislation in its present form was considered by the Ontario Board of Inquiry, Peter A. Cumming (now Cumming J.) in Cameron v. Nel-Gor Castle Nursing Home and Nelson (1984) 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd. Inq.) (“Cameron”) [at paras. 18525-18527 and 18537, 18538, 18548]:

There is a presumption in favour of the making of an award of special and general damages in human rights cases.

Therefore, I think that a presumption in favor of awarding both special and general damages should be made by Boards of Inquiry. Compensatory awards should not be completely discretionary. (Rosanna Torres v. Royalty Kitchenware Limited (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 at D/869).

Since Parliament has indicated the desirability of compensating financial losses resulting from discriminatory practices, it seems only reasonable, in view of the philosophy underlying the legislation, that this should be the norm, applicable except if some good reason for not awarding compensation can be proved. (Forman v. Via Rail, I D.H.R.R. D/233, 235, cited with approval under the Ontario Code in Rosanna Torres v. Royalty Kitchenware Limited (1982), 1982 CanLII 4886 (ON HRT), 3 C.H.R.R. D/858 at D/869).

Although damage awards in human rights cases historically were small in size, they have become progressively more substantial in recent years. It is now a principle of human rights damage assessments that damage awards ought not to be minimal, but ought to provide true compensation other than in exceptional circumstances, for two reasons. First, it is necessary to do this to meet the objective of restitution, as set forth above. Second, it is necessary to give true compensation to a complainant to meet the broader policy objectives of the Code: It is important that damage awards not trivialize or diminish respect for the public policy declared in the Human Rights Code.

The objective to be achieved by an award of monetary compensation under the Code is restitution, that is, the eradication of the harmful effects of a respondent’s actions on the complainant, and the placing of a complainant in the same position in which she would have been, had her human rights not been infringed by the respondent. ….

The new Code, like the old Code, allows for the award of general damages for, inter alia, injury to dignity and self-respect, and loss of the right to freedom from discrimination.

Where a contravention of the Code results in injury to the complainant’s dignity or self-respect, general damages for this loss should reflect the seriousness of the injury caused.

It is most important to one’s personality, character, bearing, and even self-confidence to know that a denial of employment is due to a factor that one can overcome, or change, like a work record, rather than due to a factor that one cannot change, and which is not relevant to employment potential, like one’s race, ancestry, or place of origin.

43In Ontario Human Rights Commission v. Shelter Corp., [2001] 143 O.A.C. 54 (Ont. Div. Ct.) the court wrote:

In my view, a Board of Inquiry is entitled to award non-pecuniary intangible damages arising out of the infringement of the Code. It is an award to compensate for the intrinsic value of the infringement of the complainants’ rights under the Code; it is compensation for the loss of the right to be free from discrimination and the experience of victimization. There is no ceiling on the amount of general damages.

44The Court also referred to the following excerpt from Naraine v. Ford Motor Co., [1996] 1996 CanLII 20056 (ON HRT), 28 C.H.R.R. D/267 (Bd of Inquiry – Backhouse) at paras. 39-44:

In Ontario, human rights adjudicators have divided awards for general damages into two headings. The first branch covers non-pecuniary intangible damages arising from infringement of the Code … Boards have continued to award compensation under this branch for, among other things, loss of the right to be free from discrimination and the experience of victimization; …

The second branch covers compensation for complainants who have experienced mental anguish where the respondent has acted in a wilful or reckless manner … A clearer and more accurate characterization of this branch of recovery is that it represents “aggravated” damages.

45The law, therefore, is well established that general damages may be awarded to compensate for the intrinsic value of the loss of the right to be free from discrimination. In determining the quantum of damages, I have considered the fact that this is not a case of the employer attempting in good faith to accommodate the grievor, but falling short of meeting its legal obligation. The Board concluded that, despite the medical evidence, the employer did not even turn its mind to find out whether Mr. Bokhari’s disability could be reasonably accommodated short of suffering undue hardship.

46Having regard to all of the circumstances, the Board awards general damages in the amount of $ 20,000 for infringement of Mr. Bokhari’s right to be free from discrimination under the Human Rights Code and the collective agreement.

47AMAPCEO also sought damages for injury to Mr. Bokhari’s dignity, feelings and self-respect, suffered as a result of the employer’s failure to accommodate him. While the Board made two distinct findings of violation, namely the failure to accommodate and the bad faith exercise of management rights to declare Mr. Bokhari’s MEDT position surplus, the employer conduct that constituted those violations did not take place in isolation. The manager who was primarily responsible for the failure to accommodate, and the director who was the primary actor in the bad faith surplussing, were in consultation throughout, in deciding how to deal with the difficulties they faced in managing Mr. Bokhari. Therefore, I shall later in this decision deal with the issue of injury to feelings, dignity and self-respect as it relates to both the accommodation and surplussing violations together, without artificially separating the two.

Damages resulting from the bad faith surplussing

48The decision to surplus was made by the Director, Mr. Burns. While raised in the grievance form, in final submissions AMAPCEO did not assert that the decision to surplus was made for discriminatory reasons in contravention of the Code and the collective agreement. No finding was made by the Board to the effect that the surplussing was done in contravention of the Code. However, the Board did find that Mr. Burns was aware from the outset of Mr. Bokhari’s health issues, including the fact that he was under treatment for depression. He was also kept informed of Mr. Bokhari’s performance issues, his insistence on accommodation and of his attendance issues. The Board found that instead of dealing with these problems in accordance with the law, Mr. Burns decided to sweep away all of these problems by getting rid of Mr. Bokhari by declaring his position surplus. The Board concluded that his decision to surplus was made in bad faith. It concluded that the business reasons for the surplussing offered by Mr. Burns during testimony were not credible.

49The Board further concluded that the manner in which Mr. Bokhari was treated following service of surplus notice continued the pattern of abuse of the employer’s power over him. He was escorted out by the director personally. The Board concluded that Mr. Bokhari’s co-workers would have become aware of that shortly thereafter. Mr. Bokhari was immediately locked out of his office space, he was denied access to his e-mail, and his access card was disabled. The Board found antipathy on the part of the director towards Mr. Bokhari. There was no attempt made to find another position for him following the surplussing, as was done for others. No consideration was given to the knowledge the director had that Mr. Bokhari had several health issues, including depression.

50The Board has found that the employer violated the collective agreement by misusing its authority to declare positions surplus under article 27, and exercising its management rights in bad faith. A mere declaration of violation is not adequate to remedy a serious violation such as the one found here. There is a need for an award of damages. In Re Ranger, (2013) 235 L.A.D. (4th) 324 (Leighton) at para. 35 the Vice-Chair stated as follows:

35 There is no question that the Board has jurisdiction to award compensatory damages flowing from a breach of a collective agreement. Polymer, supra, subsequently upheld by the Supreme Court of Canada in 1962 established this. The jurisprudence of the Board makes it clear that it will award damages in appropriate cases: Fenech, Tardiel, Sawyer, Latimer and Gibbon, supra

51In Re Tardiel et al, 2010 Can LII 81917 (Albertyn) at para. 138, the Board noted:

Compensatory damages are a non-taxable payment to an individual. They are designed to put the aggrieved individual in a position they would have been in, had the wrong not been committed.

52AMAPCEO has claimed damages for the injury to feelings, dignity and self-respect suffered by Mr. Bokhari as a result of the violations. It is difficult to apply the “make whole” principle where the loss is to the dignitary interests. There is no precise formula for calculating damages to make an employee whole in these circumstances. However, certain principles are set out in the authorities. The Board in Re Tardiel et al (supra) observed at para. 134:

The grievor is entitled to compensatory damages for the Employer’s contribution to the harm done to him, as described. The purpose is to meaningfully vindicate the rights of the grievor that were breached. The damages must be sufficient also to deter the Employer and others from future negligence, and to denounce the past negligence.

53In Re Ranger (supra) at para. 41 the Board observed as follows about the criteria to consider when assessing damages in these circumstances:

41 In Ratneiya, supra the Tribunal cited a Division Court decision that listed the criteria to consider when assessing damages for the injury to the Complainant’s dignity, feelings and self-respect.

The Ontario Divisional Court, in ADGA Group Consultants Inc. v. Lane (2008) 295 D.L.R. (4th ) 425 held that the following are among the factors that Tribunals should consider when awarding damages: humiliation, hurt feelings, the loss of self-respect, dignity, and confidence; the experience of victimization; the vulnerability of the Complainant; and the seriousness of the offensive treatment. (para.103)

54In applying the factors set out in ADGA, the Board is required to objectively assess the nature of the employer’s offending conduct, and its impact on Mr. Bokhari. I will not review the evidence and the findings of the Board in relation to employer conduct, which are set out in detail in the Board’s decision on the merits. It suffices to state by way of summary that in failing to accommodate Mr. Bokhari, the manager completely disregarded his legal rights as well as his well-being. Despite medical substantiation that he was unable to start work at the regular time due to illness, she proceeded on the basis of a subjective suspicion that he could work core hours as the other staff did. Her sole goal was to get him to work core hours. In order to achieve her goal she kept pressuring Mr. Bokhari. When he did not comply, she preferred to have Mr. Bokhari stay home with pay, rather than attempt to accommodate him with work hours he could perform. She even went to the extent of having at least one of Mr. Bokhari’s co-workers monitor and report on his arrival and departure times, and about his activity while in the office. As noted, the violation was the result of conduct much more serious than the case of an employer attempting to accommodate, but falling short of meeting the full extent of its legal obligation.

55Similarly, I conclude that the employer’s decision to get rid of an employee who was difficult to manage in the guise of a surplussing of a position is much more serious than the case of a violation of article 27 by failing to identify a match to a position, a surplussed employee was entitled to under the collective agreement. The surplussing itself was a sham. The violation is also remarkable for several other reasons. The offending conduct was committed by a senior manager, the Director, who had no day to day responsibility for managing Mr. Bokhari. The Board concluded that Mr. Burns acted out of anger and antipathy, and made the decision to surplus with no consultation or input from Mr. Bokhari’s direct supervisor. He took the unusual step of personally serving the surplus notice on Mr. Bokhari and immediately escorting him out of the office. There was no evidence that any other employee had been treated in that manner when served notice of surplus. The Board found the Director’s testimony that Mr. Bokhari was removed from his office and his access to the office computer and e-mail was disabled for operational reasons and out of a desire to be helpful to Mr. Bokhari, to be not credible. The mistreatment of Mr. Bokhari did not end there. Rejecting the employer’s testimony as not credible, the Board concluded that no attempt was made to search for a direct assignment for Mr. Bokhari. He was treated differently than other surplussed employees. This resulted in the delay in finding a direct assignment for him.

56I next turn to consider the impact of the employer conduct on Mr. Bokhari. It is clear that Mr. Bokhari had been receiving treatment for depression well before the employer conduct that led to the violations of the Human Rights Code and the collective agreement found by the Board. AMAPCEO, therefore, did not assert that his depression was precipitated by that conduct. The issue is whether his depression was aggravated or prolonged as a result of the employer conduct.

57AMAPCEO filed in evidence medical reports from two psychiatrists dated December 14, 2010 and May 30, 2011 respectively. These are not helpful in assessing the impact of the employer conduct on Mr. Bokhari’s health. For most part, the doctors do not provide any objective opinions, but merely record Mr. Bokhari’s self-reporting. While noting that Mr. Bokhari had a history of depression, one psychiatrist writes that his depression “seems to have been precipitated by his difficulties in his career, including being laid off, and lack of promotion” and that “his current grievance against his work may be perpetuating his depressive symptoms”. There is also a reference to termination of Mr. Bokhari’s employment. It is clear that the psychiatrist did not have an accurate understanding of Mr. Bokhari’s experience at work, since there was no evidence or assertion that Mr. Bokhari was laid off or terminated. Moreover, the Board had concluded that since the evidence was that he had not even applied for any promotions, the employer was not responsible for Mr. Bokhari’s lack of promotion. It is also notable that the opinions of the doctors are equivocal as evidenced by the repeated use of the words “may be”.

58The absence of specific and definitive medical evidence, does not, however, necessarily lead to the conclusion that the employer’s conduct had no adverse impact on Mr. Bokhari’s dignity, feelings and self-respect. Just as much as medical professionals find it difficult to provide definitive opinions on the impact of employer conduct on an employee’s mental health, there is no way for the Board to make a definitive finding that the employer conduct had a specific impact on Mr. Bokhari’s dignity, feelings and self-respect. However, the Board is not required to make such a definitive finding. Its task is to make objective findings on a balance of probabilities, based on all of the evidence before it. In doing so, the Board must consider the nature of the employer’s conduct. More egregious and unfair the conduct when objectively seen, more the probability that there was adverse impact. As already noted, in the present case the employer conduct that resulted in violations were serious.

59I agree with employer counsel that Mr. Bokhari suffered no financial loss as a result of the employer’s violations. Nor is there any assertion of other consequences found in some cases relied upon by AMAPCEO, such as difficulty in finding alternate employment or breakdown of marriage. I have also taken into account Mr. Bokhari’s propensity to exaggerate and dramatize, and his lack of credibility in that regard. I have also factored in the relatively short period from March to September, 2010 during which Mr. Bokhari was subjected to the mistreatment. Moreover, I have taken into account the fact that his mental suffering, as reported by him to his medical professionals and confirmed during his testimony, was partially caused by his frustration and disappointment about lack of promotion and the inability to do AGCO work. The Board concluded that the employer was not in any way blameworthy or liable for that.

60Nevertheless, given the mistreatment he had to endure, I conclude on balance that Mr. Bokhari would have suffered significant injury to his feelings, dignity and self-respect. He would have felt victimized. Any person, even with no health issues, would have been adversely impacted if subjected to the treatment he was subjected to. In Mr. Bokhari’s case the impact would have been greater because he had pre-existing health issues including coronary disease, hypertension and most significantly, depression. At the relevant time the likelihood of this impact would have been within reasonable contemplation of the two managers in question because they were aware of all of these health issues Mr. Bokhari was suffering from. In view of the foregoing, the Board awards damages for injury to dignity, feelings and self-respect in the amount of $ 25,000.

61The Board declines the request for “Wallace damages”. This request is based on the judgement of the Supreme Court of Canada in Wallace v. United Grain Growers Limited, 1997 CanLII 332 (SCC), [1997] 3 S.C.R.701. In that case the court held that bad faith conduct in the manner of dismissal, and the resulting emotional impact, may properly be considered in awarding compensation by addition to the notice period. Counsel for AMAPCEO, relying on the Board’s finding of bad faith, sought damages analogous to “Wallace damages”. Employer counsel argued, inter alia, that no such damages should be awarded because, unlike the plaintiff in Wallace, Mr. Bokhari was not dismissed at all. He was continuously employed, and suffered no loss of pay, benefits or seniority.

62The Board has already awarded substantial damages to Mr. Bokhari. In doing so, it has taken into account all of the factors AMAPCEO relies on for its claim for “Wallace damages”, including the finding of bad faith. It is, therefore, inappropriate to award further damages on account of the same factors. The request for “Wallace damages” is denied for that reason. In light of that, it is not necessary for me to decide whether “Wallace damages” may be awarded as compensation for bad faith conduct causing emotional injury in circumstances not involving termination of employment.

63AMAPCEO has sought $ 45,000 in punitive damages. This Board has held that it has the jurisdiction to order punitive damages in appropriate cases. Re Ranger, (supra). In Wallace (supra), the Supreme Court of Canada stated: “Punitive damages are an exception to the general rule that damages are meant to compensate the plaintiff. The purpose of such an award is the punishment of the defendant”. In Honda Canada Inc. v. Keays 2008 SCC 39, [2008] 2 S.C.R. 362, at para. 68, the Supreme Court of Canada wrote:

This Court has stated that punitive damages should “receive the most careful consideration and the discretion to award them should be most cautiously exercised” (Vorvis, at pp. 1104-5). Courts should only resort to punitive damages in exceptional cases (Whiten, at para. 69). The independent actionable wrong requirement is but one of many factors that merit careful consideration by the courts in allocating punitive damages. Another important thing to be considered is that conduct meriting punitive damages awards must be “harsh, vindictive, reprehensible and malicious”, as well as “extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment” (Vorvis, at p. 1108).

64In Re Ranger (supra), the Board referred to the Divisional Court decision in Greater Toronto Airports Authority v. Public Service Alliance Canada, Local 004, (2011) ONSC 487, and at para. 74-75wrote:

74The Divisional Court reviewed the principles established by the Supreme Court cases on punitive damage awards in breach of contract cases. Punitive damages are exceptional in a breach of contract case. It is clear that there must be an independent actionable wrong. Even if an independent actionable wrong is established, the decision-maker should only award these damages when “the wrongdoer’s misconduct is so outrageous as to require punitive damages for purposes of retribution, deterrence and denunciation” (para. 120). Finally, the Divisional Court said that the award of punitive damages must be rational and proportionate. The decision-maker must look at the “totality of the damages already awarded” and address the issue of why the compensatory damages are not enough to denounce the wrongdoing. (para. 126)

75The Supreme Court in Keays, supra, said, “punitive damages are restricted to advertent acts that are so malicious and outrageous that\they are deserving of punishment on their own”. (para.62)

65Having regard to the evidence and the findings by the Board, I conclude that the employer’s conduct was not sufficiently egregious or malicious to warrant an award of punitive damages, even assuming that the evidence establishes an independently actionable wrong. The significant compensatory compensation already awarded in this decision are sufficient to serve the purposes of denunciation and deterrence. AMAPCEO’s request for punitive damages is therefore denied.

ORDER

66In the result, the Board makes the following orders:

(a) The employer is ordered to pay forthwith to Mr. Bokhari, the sum of

$ 8,000.00 in compensatory damages in lieu of reinstatement to the position at MEDT.

(b) The employer is ordered to pay forthwith to Mr. Bokhari, the sum of

$ 20,000.00 in general damages for the violation of the Human Rights Code and the collective agreement by failing to accommodate

Mr. Bokhari.

(c) The employer is ordered to pay forthwith to Mr. Bokhari the sum of

$ 25,000 for the injury to his feelings, dignity and self-respect by its discriminatory conduct in failing to accommodate him in violation of the Human Rights Code and the collective agreement; and by declaring his position at MEDT surplus in bad faith and the humiliation and mistreatment he was subjected to.

67The Board remains seized in the event there is disagreement in implementing this decision.