Eastern School Board v. Human Rights Commission (P.E.I.) et al.,

• Jurisdiction: Prince Edward Island
• Judge: McQuaid, Murphy and MacDonald, JJ.A.
• Neutral Citation: 2008 PESCAD 10
• Court: Supreme Court, Appeal Division (Prince Edward Island)
• Date: 04 July 2008
• Citation: 2008 PESCAD 10,(2008), 277 Nfld. & P.E.I.R. 304 (PEICA),277 Nfld & PEIR 304,168 ACWS (3d) 148,(2008), 277 Nfld & PEIR 304 (PEICA),277 Nfld. & P.E.I.R. 304

Eastern School Bd. v. HRC (2008), 277 Nfld. & P.E.I.R. 304 (PEICA);

    850 A.P.R. 304

MLB headnote and full text

Temp. Cite: [2008] Nfld. & P.E.I.R. TBEd. JL.001

Noël Ayangma (appellant) v. Eastern School Board (respondent) and Richard W. Montigny, a Human Rights Panel appointed pursuant to s. 26 of the Human Rights Act, R.S.P.E.I. 1988, Cap. H-12 and the P.E.I. Human Rights Commission (P.E.I.)

(S1-AD-1125; 2008 PESCAD 10)

Indexed As: Eastern School Board v. Human Rights Commission (P.E.I.) et al.

Prince Edward Island Supreme Court

Appeal Division

McQuaid, Murphy and MacDonald, JJ.A.

July 4, 2008.

Summary:

A Human Rights Panel found that the Eastern School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions. The Panel ordered the School Board to pay Ayangma $55,000 for lost income and $6,000 for hurt and humiliation. The School Board applied for judicial review of the Panel's decision. Ayangma filed a cross-application, seeking a variation of the Panel's decision on damages.

The Prince Edward Island Supreme Court, Trial Division, in a decision reported at 268 Nfld. & P.E.I.R. 159; 813 A.P.R. 159, dismissed the School Board's application and Ayangma's cross-application. Ayangma appealed from the dismissal of his cross-application. The School Board cross-appealed from the dismissal of its application for judicial review.

The Prince Edward Island Court of Appeal allowed Ayangma's appeal in part as follows: the Panel's decision to reduce Ayangma's compensation for loss of income by $13,654.06 for failure to mitigate was set aside and the School Board was ordered to pay that amount to Ayangma with interest; the School Board was ordered to pay the reasonable costs of Ayangma's travel, accommodations and food in relation to his travel between Charlottetown and Halifax for employment; Ayangma was awarded a portion of the costs of presenting his case to the Panel; Ayangma was awarded the sum of money necessary for any income tax gross up; Ayangma was entitled to a letter of apology; the School Board's hiring policies as well as its cultural and diversity policies were to be reviewed; and the School Board was to publish the court's decision. The School Board's cross-appeal was dismissed.

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions - [See Civil Rights - Topic 7046 ].

Civil Rights - Topic 1170

Discrimination - Remedies - Hurt feelings or mental anguish - Compensation - A Human Rights Panel found that a School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions - The Panel ordered, inter alia, that the School Board pay Ayangma compensation of $6,000 for hurt and humiliation - The Prince Edward Island Court of Appeal held that the Panel's decision with respect to compensation for hurt and humiliation was not unreasonable - See paragraphs 88 to 89.

Civil Rights - Topic 1172

Discrimination - Remedies - Compensation for economic loss - A Human Rights Panel found that a School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions - The Panel ordered, inter alia, that the School Board pay Ayangma $55,000 for lost income - The Prince Edward Island Court of Appeal held that if Ayangma was required to pay additional income tax as the result of this lump sum payment, he should receive an amount sufficient to discharge any additional income tax liability - The Panel did not award such an amount nor did it give reasons - Accordingly, the court ordered that this issue be referred back to the Panel to assess whether Ayangma was entitled to a gross up and, if he proved his entitlement, the amount - See paragraph 94.

Civil Rights - Topic 1172

Discrimination - Remedies - Compensation for economic loss - A Human Rights Panel found that a School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions for the 1997-1998 school year - The Panel concluded that Ayangma was entitled to lost wages at the rate that he would have been paid as a teacher from September 1997 to January 1999 when he obtained full-time employment with Health Canada, less 20% for failure to mitigate - Ayangma argued that the Panel's decision to limit his compensation for lost income to January 1999 was unreasonable - He argued that he was entitled to be compensated for the difference in the salary that he would have earned as a teacher and the salary that he earned with Health Canada as well as for any additional loss of income - The Prince Edward Island Court of Appeal stated that it was reasonable for the Panel to conclude that any further loss of income after acquiring employment with Health Canada was not causally connected to the School Board's discrimination - Therefore, the Panel's decision to limit Ayangma's claim for compensation for loss of income to the date of the commencement of his employment with Health Canada was reasonable - See paragraphs 55 to 71.

Civil Rights - Topic 1172

Discrimination - Remedies - Compensation for economic loss - A Human Rights Panel found that a School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions for the 1997-1998 school year - The Panel awarded Ayangma compensation of $55,000 for lost wages based on what he would have been paid as a teacher from September 1997 to January 1999 when he obtained full-time employment with Health Canada - The Panel decided that Ayangma was not entitled to recover compensation for loss of income based on Ayangma becoming a principal in one of the School Board's schools - The Panel concluded that there was nothing more than a mere possibility this would occur and the evidence did not establish that there was a serious possibility of Ayangma becoming a principal had he not been denied the opportunity for employment and hired by the School Board - The Prince Edward Island Court of Appeal held that this was a reasonable decision - See paragraphs 91 to 92.

Civil Rights - Topic 1172

Discrimination - Remedies - Compensation for economic loss - A Human Rights Panel found that a School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions for the 1997-1998 school year - The Panel concluded that Ayangma was entitled to lost wages at the rate that he would have been paid as a teacher from September 1997 to January 1999 when he obtained full-time employment with Health Canada, less 20% for failure to mitigate - The Panel calculated the 20% reduction based on evidence that in 1987-1988 Ayangma had obtained substitute teaching assignments with the School Board for 37 days, which constituted 20% of a full teaching year - The Panel concluded that Ayangma failed to mitigate his loss of income where he failed to place himself on the substitute teaching list for the 1997-1998 school year - The Prince Edward Island Court of Appeal held that the Panel's decision to reduce the award by 20% for failure to mitigate was not reasonable - The court stated that "Justification for a reduction in the amount of compensation for lost income on the basis that [Ayangma] would have obtained the same number of substitute teaching assignments between 1997 - 1998 as he did ten years previous, cannot be found in the evidence, either directly or inferentially. The Panel's conclusion in this respect is purely speculative" - See paragraphs 72 to 82.

Civil Rights - Topic 1172

Discrimination - Remedies - Compensation for economic loss - A Human Rights Panel found that a School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions for the 1997-1998 school year - The Panel awarded Ayangma lost wages based on what he would have been paid as a teacher from September 1997 to January 1999 when he obtained full-time employment with Health Canada - Although Ayangma's employment with Health Canada involved working in Halifax, he had continued to maintain a residence in Charlottetown where his spouse worked and his children attended school - The Panel did not address Ayangma's claim for the costs of travel from Charlottetown to Halifax as well as the cost of food and lodging in Halifax - The Prince Edward Island Court of Appeal held that Ayangma was entitled to recover at least a portion of those financial costs of working in Halifax - The court concluded that a reasonable period of time to make the adjustment was two years from the commencement of Ayangma's employment with Health Canada - For that period of time the School Board should compensate Ayangma for his reasonable costs of travel, accommodations and food because such costs were the direct result of the School Board's act of discrimination - See paragraphs 85 to 87.

Civil Rights - Topic 1172

Discrimination - Remedies - Compensation for economic loss - The Prince Edward Island Court of Appeal stated that "We agree that the principle of foreseeability is not applicable in considering the extent of a complainant's loss of income or wages when the discrimination results in the loss of an opportunity for an employment position. The [Human Rights] Act is clear in stating that if the complainant establishes discrimination, he or she is entitled to compensation for the loss of income or wages caused by the act of discrimination. The extent of that loss is not increased or decreased by the amount of wage loss the violator might reasonably be expected to foresee. Nevertheless ... the tribunal must consider such contingencies as the likelihood of the complainant not being offered a position of employment if the opportunity to compete for the position had not been denied on the basis of discrimination. In doing so, it is necessary to consider the experience and qualifications of the other applicants that were interviewed in relation to the experience and qualifications of the complainant. It is at this point in the assessment of the extent of the compensation for loss of income that the tribunal must consider remoteness and other contingencies" - See paragraphs 66 to 67.

Civil Rights - Topic 1172

Discrimination - Remedies - Compensation for economic loss - A Human Rights Panel found that a School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions - The Panel ordered, inter alia, that the School Board pay Ayangma $55,000 for lost income - An application and cross-application for judicial review were dismissed - Ayangma appealed - The School Board cross-appealed - The Prince Edward Island Court of Appeal stated that "Where the discrimination results in the loss of opportunity for employment, the proof of entitlement to lost income or wages requires only proof there was a reasonable possibility a complainant would have been offered a job and not proof of a probability that he would have been offered a job, had he been granted an interview ... The Panel did not place an onus on the appellant to prove there was a probability of him obtaining employment. The Panel concluded there was a 'reasonable possibility' the appellant would have obtained employment if he had been granted an interview. In reaching this conclusion, the Panel applied the correct legal principle with respect to the burden of proof and made findings of fact that were supported by the evidence and were, therefore, reasonable - See paragraphs 52 to 53.

Civil Rights - Topic 1172

Discrimination - Remedies - Compensation for economic loss - The Prince Edward Island Court of Appeal stated that "The process of assessing compensation for loss of income or wages in a situation where the loss flows from the denial of an opportunity for employment will, in summary, take the following path. First, the tribunal should determine the complainant's entitlement to a loss of income or wages as a result of the discrimination by assessing whether there was a reasonable possibility the complainant would have been offered employment, if the opportunity had not been denied. Secondly, if the complainant establishes entitlement to compensation for loss of income, the tribunal must establish the amount of the compensation by considering evidence of the quantum of the loss as well as the factors which, by law, limit the amount of the loss such as the likelihood of the complainant being unsuccessful in the competition for the employment position as well as the efforts which the complainant took to mitigate his or her loss" - See paragraph 47.

Civil Rights - Topic 7046

Federal, provincial or territorial legislation - Commissions or boards - General - Duty of fairness - A Human Rights Panel found that a School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions - The Panel ordered the School Board to pay Ayangma $55,000 for lost income and $6,000 for hurt and humiliation - An application and cross-application for judicial review of the Panel's decision were dismissed - On appeal, the Prince Edward Island Court of Appeal held that the Panel's failure to provide any reasons for not awarding any of the non-monetary relief requested by Ayangma amounted to a breach of Ayangma's right to procedural fairness - The court stated that "A reviewing court is therefore entitled to afford no deference to the Panel's decision denying these remedies. The applications judge should have reviewed the Panel's decision to deny each of these remedies on a standard of correctness. As he did not, this court will do so" - The court ordered that Ayangma was entitled to a letter of apology, that the School Board's hiring policies as well as its cultural and diversity policies were to be reviewed and that the School Board was to publish the court's decision as directed by the court - See paragraphs 95 to 102.

Civil Rights - Topic 7108

Federal, provincial or territorial legislation - Practice - Costs (incl. on appeal) - A Human Rights Panel found that a School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions - The Panel ordered the School Board to pay Ayangma $55,000 for lost income and $6,000 for hurt and humiliation - Ayangma requested costs of appearing before the Panel in the amount of $5,000 - The Panel, without reasons, did not award him costs - The Prince Edward Island Court of Appeal held that Ayangma "should be awarded his costs of appearing before the Panel as if he were a person who appeared without counsel before a court. His recoverable costs would include his disbursements and other out of pocket expenses" - See paragraph 93.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - A Human Rights Panel found that a School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions - The Panel awarded Ayangma compensation for lost wages and hurt and humiliation - An application and cross-application for judicial review of the Panel's decision were dismissed - On appeal, the Prince Edward Island Court of Appeal disagreed with the applications judge that all of the issues which arose on the review of the Panel's decision were ones of mixed fact and law which should have been reviewed on a standard of reasonableness - The decision as to whether Ayangma was entitled to compensation for loss of income as well as the determination of the appropriate quantum of such compensation, raised questions or principles of law of general application which were discrete from the related questions of fact - The issues arising from those legal principles should have been reviewed by the applications judge on the standard of correctness - The application of the proper legal principles by the Panel to the facts of Ayangma's case engaged issues of mixed fact and law which should be reviewed on the standard of reasonableness simpliciter - See paragraphs 8 to 22.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - A Human Rights Panel found that a School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions - The Panel awarded Ayangma compensation for lost wages and hurt and humiliation - An application and cross-application for judicial review of the Panel's decision were dismissed - Ayangma appealed - The Prince Edward Island Court of Appeal stated that "The applications judge was correct in concluding that the Panel's finding of discrimination by the respondent against the appellant was to be reviewed on a standard of reasonableness simpliciter. The Panel's decision that the appellant had established a prima facie case of discrimination as well as the Panel's decision that the respondent had failed to rebut the prima facie case, both raised issues of mixed fact and law. The decision that the respondent failed to rebut the finding of a prima facie case of discrimination is probably more factually intensive than the decision as to whether there was a prima facie case of discrimination. The issues of law which do arise in the disposition of these questions were so interwoven with the issues of fact, they can be reviewed on the standard of reasonableness" - See paragraph 24.

Civil Rights - Topic 7117

Federal, provincial or territorial legislation - Practice - Appeals (incl. standard of review) - A Human Rights Panel found that a School Board had discriminated against Ayangma on the basis of his race, colour, ethnic and national origin, and age, by denying him the opportunity to interview for various teaching positions - The Panel awarded Ayangma compensation for lost wages and hurt and humiliation - An application and cross-application for judicial review of the Panel's decision were dismissed - Ayangma appealed - The School Board cross-appealed - Ayangma had expanded the scope of the remedies he sought at each stage as his case moved from the hearing before the Panel, to the judicial review, to the appeal - In arguing that the applications judge and the Court of Appeal should order remedies that he did not seek before the Panel, Ayangma relied on s. 56(1) of the Supreme Court Act - That section provided that the court, on an appeal, may make any order or decision that could have been made by a court or tribunal - The Prince Edward Island Court of Appeal stated that "the role of this Appeal Court is to review the decision of the applications judge on the basis of the record of the tribunal which was before him. Therefore, on this appeal the court will consider only those remedies sought by the appellant before the Panel as these were the only remedies decided by the Panel and reviewed by the applications judge" - See paragraphs 30 to 39.

C ivil Rights - Topic 7195

Federal, provincial or territorial legislation - Remedies - Remedial measures in workplace - [See Civil Rights - Topic 7046 ].

Cases Noticed:

Ayangma v. Human Rights Commission (P.E.I.) et al. (2004), 242 Nfld. & P.E.I.R. 263; 719 A.P.R. 263; 2004 PESCAD 23, refd to. [para. 2].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 8].

Ayangma v. Prince Edward Island et al. (2005), 248 Nfld. & P.E.I.R. 79; 741 A.P.R. 79; 2005 PESCAD 18, refd to. [para. 10].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 12].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658, refd to. [para. 16].

Sangha v. Mackenzie Valley Land and Water Board, [2007] F.T.R. Uned. 578; 2007 FC 856, refd to. [para. 16].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 20].

Piazza and Human Rights Commission (Ont.) v. Airport Taxicab (Malton) Association and Mann (1989), 34 O.A.C. 349; 69 O.R.(2d) 281 (C.A.), refd to. [para. 43].

Canada (Attorney General) v. Morgan and Canadian Human Rights Commission (1990), 13 C.H.R.R. D/42; 1990 CanLII 1358 (Can. Hum. Rts. Trib.), refd to. [para. 44].

Canada (Attorney General) v. Morgan and Canadian Human Rights Commission (1991), 135 N.R. 27; 85 D.L.R.(4th) 473 (F.C.A.), refd to. [para. 44].

Chopra v. Canada (Attorney General) et al. (2006), 285 F.T.R. 113; 2006 FC 9, refd to. [para. 47].

Board of Education of Fort McMurray (Catholic) v. Human Rights and Citizenship Commission (Alta.) (2005), 374 A.R. 216; 2005 ABQB 165, consd. [para. 50].

Canada (Attorney General) v. McAlpine, [1989] 3 F.C. 530; 99 N.R. 221 (F.C.A.), refd to. [para. 64].

Chopra v. Canada (Attorney General) et al. (2007), 369 N.R. 207; 2007 FCA 268, agreed with [para. 65].

Bhadauria v. Seneca College of Applied Arts and Technology, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 65].

Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161, refd to. [para. 69].

Michaels et al. v. Red Deer College, [1976] 2 S.C.R. 324; 5 N.R. 99, refd to. [para. 74].

Authors and Works Noticed:

Zinn, Russel W., and Brethour, Patricia P., The Law of Human Rights in Canada: Practice and Procedure (1996), p. 16-34.1 [para. 74].

Counsel:

Noël Ayangma, on his own behalf;

Christopher S. Montigny, for Eastern School Board;

Yolande S. Richard, for Richard W. Montigny and the P.E.I. Human Rights Commission.

This appeal and cross-appeal were heard on January 24 and 25, 2008, at Charlottetown, P.E.I., before McQuaid, Murphy and MacDonald, JJ.A., of the Prince Edward Island Court of Appeal. The following judgment was delivered by the Court of Appeal on July 4, 2008.