HomeMy WebLinkAbout2010-2873.Bokhari.16-07-06 DecisionCrown Employees
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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
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Decision
[1] On 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.
[2] The Board concluded its decision with the following:
[157] For 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.
[158] The 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.
[159] Any 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.
[3] The 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.
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[4] By 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
[5] On 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.
[6] Referring 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
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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.
[7] In 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.
[8] Counsel 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.
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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.
[9] Counsel 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) 3 S.C.R. 494 (S.C.C.) and Re Ranger, (2010) 235 LAC
(4th ) 324 (GSB-Leighton).
[10] Counsel for AMAPCEO relied on the judgement of the Supreme Court of Canada
in Wallace v. United Grain Growers Ltd. [1977] 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.
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[11] AMAPCEO 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] 3 SCR 494 (S.C.C.) was relied on.
[12] It 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.
[13] Counsel 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.
[14] Counsel 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
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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
[15] For breach of the Human Rights Code, an order of damages in the amount of
$ 45,000 was sought.
[16] By 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
[17] Counsel 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.
[18] In 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.
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Employer submissions
[19] Employer 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.
[20] Counsel 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
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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.
[21] Counsel 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.
[22] Counsel 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.
[23] Counsel 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.
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[24] Employer 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.
[25] Employer 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.
[26] Counsel 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.
[27] Employer 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
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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.
[28] Employer 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.
[29] Counsel 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
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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
[29] Counsel 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.
[31] Counsel 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.
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[32] Counsel 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
[33] I 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.
[34] The 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.
[35] The 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
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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.
[36] Having 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.
[37] Throughout 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.
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CONCLUSION
Reinstatement to the position at MEDT
[38] As 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.
[39] Nevertheless, 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
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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.
[40] However, 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.
[41] The 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.
[42] Human rights damages are compensatory and not punitive. In Adga Group
Consultants Inc. v. Lane, (2008) 91 O.R. (3d) 649 (Ont. Div. Ct.) at pp. 684-685,
the Court observed as follows:
[136] As 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) 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.
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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), 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), 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.
[43] In Ontario Human Rights Commission v. Shelter Corp., [2001] 143 O.A.C. 54
(Ont. Div. Ct.) the court wrote:
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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.
[44] The Court also referred to the following excerpt from Naraine v. Ford Motor Co.,
[1996] 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.
[45] The 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.
[46] Having 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.
[47] AMAPCEO 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
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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
[48] The 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.
[49] The 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
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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.
[50] The 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
[51] In 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.
[52] AMAPCEO 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.
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[53] In 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)
[54] In 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.
[55] Similarly, 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.
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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.
[56] I 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.
[57] AMAPCEO 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
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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”.
[58] The 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 impact 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.
[59] I 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
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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.
[60] Nevertheless, 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.
[61] The 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] 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.
[62] The 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
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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.
[63] AMAPCEO 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] 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).
[64] In 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:
[74] The 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)
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[75] The 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)
[65] Having 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
[66] In 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.
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[67] The Board remains seized in the event there is disagreement in implementing
this decision.
Dated at Toronto, Ontario this 6th day of July 2016.
Nimal Dissanayake, Vice Chair