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Burge v. Prince Edward Island (Liquor Control Commission)

Board of Inquiry Report under the Prince Edward Island Human Rights Act, R.S.P.E.I. 1988, Cap. H-12, as amended.
Between Michael Burge, complainant, and Her Majesty the Queen, in Right of the Province of Prince Edward Island as represented by the Prince Edward Island Liquor Control Commission, respondent

Prince Edward Island Board of Inquiry Under the Human Rights Act G.R. Foster

February 19, 1993
(24 paras.)


1      On May 20, 1986, the Complainant filed with the Human Rights Commission a complaint under the provisions of the Human Rights Act that on or about May 18, 1986 the Respondent discriminated against him in relation to his political belief in the matter of his employment.

2      An investigation into the complaint was conducted by the Commission and the attempts to reach a settlement were unsuccessful; subsequently I was duly appointed as a one man Board of Inquiry pursuant to section 25 of the Human Rights Act.

FACTS

3      The Complainant was a trucker of beer from the premises of two Maritime breweries to the Respondent's liquor outlets in Cardigan and Souris in Kings County.  For this service he was paid directly by the breweries on a per trip basis and not by the Respondent. However, the Respondent appointed him and the appointment was acquiesced to by the breweries.

4      The evidence at this public inquiry indicates that if the breweries or the officers or employees of the Prince Edward Island Liquor Control Commission were dissatisfied with the conduct of or the service provided by a beer trucker their only recourse was to complain to the Minister of the government who administered the Liquor Control Act.  As a result the engagement was highly politicized.

5      At a general provincial election held on April 23, 1979 the then Liberal government of the Province was defeated by members of the Progressive Conservative Party who in turn formed a government on May 3, 1979.

6     Immediately following that election the Complainant actively sought the engagement of trucking both Olands and Moosehead beer products from their New Brunswick premises to the Respondent's Cardigan and Souris liquor facilities.  The Complainant was a high profiled member of the Progressive Conservative Party and he persistently canvassed the two members of his electoral district (one of whom was a cabinet minister) to insure that he would be appointed.

7      On June 12, 1979 the Complainant was sent a letter from Ralph K. MacLeod, Director of Operations of the Prince Edward Island Liquor Control Commission, advising him that his services would be engaged and also that such services would be "on a month to month basis and will be in effect until further advised."  On the same date James Murphy, who until then held the engagement, was notified by letter from the same Ralph K. MacLeod that his services were terminated and he was thanked for his past services and cordiality to the Control Commission.  It has been admitted by counsel for the Complainant and the Respondent that:  "Following the spring 1979 provincial election, where the Conservative Party formed the majority government, all of the Prince Edward Island beer haulers for various off-Island liquor outlets were replaced in June 1979, except two."

8      On April 21, 1986 the Liberal Party defeated the then Progressive Conservative government at a general election and then formed a government on May 2, 1986.  Counsel for the Complainant and for the Respondent admit that: "Following the May 1986 provincial election when the Liberal Party formed the majority government, all of the Prince Edward Island beer haulers for various off-Island liquor store outlets were replaced in May of 1986, except one."

9      On May 15, 1986 a letter was sent to the Complainant from W. A. MacDougall, Controller of the Prince Edward Island Liquor Control Commission, notifying him that effective May 19, 1986 the Commission would no longer require his trucking services.  The letter further stated that "we would like to express our sincere appreciation to your firm for the excellent services rendered the Commission in the past." [Emphasis added]

ISSUES

10      The Respondent admits that one of the reasons for the Complainant's dismissal was his political belief but argues that this was by no means the only or paramount reason for the discontinuance.  The Respondent further contends, if I understand counsel for the Respondent correctly, that the Complainant had a poor record of service during his engagement and that this was the paramount reason for his dismissal and that as a consequence he was entitled to only one month's notice and that this Board should recommend that he receive only one month's loss of remuneration.

11      It is trite law that discrimination need not be the sole or even the dominant factor in the treatment of a complaint, and that it is sufficient that discrimination was a material element in the decision to dismiss.

12      I have sifted through the evidence carefully and I am unable to find anything that would cause me to conclude that a decision was ever made or even considered by the Respondent to dismiss the Complainant for anything other then his political belief.  If a decision had been made to dismiss him for his poor service record or any other legal reason evidence ought to have been reasonably available to that end. However, no senior officials of the Liquor Control Commission nor the then minister charged with the administration of the Liquor Control Act were called as witnesses to support the Respondent's contention that there were reasons other than his political belief for his dismissal.  Nor can the Respondent now be heard to say that it was foreseeable that at some time following May 15, 1986 the Complainant would give reason other than his political belief to be dismissed.  That would be only speculative at best.

RECOMMENDATIONS

I.  REINSTATEMENT:

13      One of the recommendations open to the Board to make is that the Complainant be reinstated as a trucker of beer products from the breweries to the Souris and Cardigan outlets.  In my view, such a recommendation would not be in the best interests of either party.  As can be seen, such engagements are highly political in nature in Prince Edward Island and the Complainant's reinstatement at this late date would likely result in a highly charged workplace within the Commission, a condition that is undesirable.  Therefore, I decline to recommend reinstatement.

II.  GENERAL DAMAGES FOR INJURED FEELINGS:

14      A recommendation for general damages by reason of injured feelings cannot be determined with any degree of precision, and such a recommendation must avoid being punitive in nature.

15      The Complainant has lived most, if not all, of his life in St. Peters Bay on the Burge family farm.  His father was a farmer and at one time was a distinguished member of the Legislative Assembly.  When he was no longer capable of taking care of himself he was cared for by the Complainant and his family until the date of his death.  The Complainant was active in the village affairs, at times playing a reading role in voluntary service to that area.  A number of witnesses were called on his behalf to attest to his community spirit and not all of them were of the same political persuasion as the Complainant.  The Burge family, including the Complainant, had every reason to hold their heads high.

16      Since his dismissal the Complainant and his family's standard of living were markedly lowered, so much so that he was reduced to borrowing from his daughters monies which they had earned and saved to further their education. One of the witnesses described the effects of the dismissal on the Complainant as "disastrous'.

17      Unlike some other jurisdictions, the Prince Edward Island Human Rights Act does not set a limit on the amount which may be recommended to compensate for injured feelings.  Bearing in mind that the recommendation must not be punitive in nature I am of the opinion that $2,000.00 is a reasonable figure to recommend as general damages for the foreseeable mental anguish and loss of self-confidence suffered by the Complainant as a result of the Respondent's discriminatory act.

III.  ECONOMIC LOSS:

18      One of the difficulties often experienced by boards of inquiry is determining a cutoff date for assessing the economic loss.  This has been simplified for me by the Complainant's accepting as such a date the date on which the public inquiry herein commenced.

19      Mr. Everett Roche, a chartered accountant, conducted a contribution margin analysis of the Complainant's financial affairs in order to estimate his monetary loss between June 30, 1986 and June 30, 1992 as a result of being discharged.  I was impressed by the depth of his analysis and with the fairness of his approach and testimony.

20      At the time the Complainant was dismissed there were only two liquor outlets of the Respondent in Kings County, but since that date a third has been added in the Town of Montague.  Mr. Roche prepared two estimates of monetary loss based on the one hand on the assumption that the Complainant would service only the outlets in Cardigan and Souris and on the other hand based on the assumption that he would also service the Montague outlet.  In that there are now two truckers engaged in Kings County as beer haulers I reject as being speculative the assumption that had he remained in the engagement he would also have serviced the Montague outlet.  I accept, therefore, Mr. Roche's estimate of the Complainant's monetary loss as being $316,697.00, including interest, suffered by the loss of the engagement.

IV.  MITIGATION:

21      During the period from his dismissal to the cutoff date the Complainant found other, albeit temporary, sources of income, notably from the Parliament of Canada in 1986 as a member of the staff of the then Member of Parliament for the Cardigan riding, Pat Binns, for which he received $7,574.00. In 1987 he drew Unemployment Insurance benefits in the amount of $13,524.00, and in 1988 he drew $276.00. Through 1987 to 1991 he was paid a total of $40,200.00 by the Federal Business Development Bank and in 1989 he received $1,800.00 from Powers Produce.  The income which he generated in his bottle exchange business was factored into and forms part of the contribution margin analysis.

22      At my request Mr. Roche also factored into his monetary loss estimates these additional sources of income resulting in an adjustment of $41,099.00 and in a total monetary loss estimate of $275,598.00. The cutoff date was June 30, 1992 and I decline to recommend interest after that date.

23      I am satisfied that the Complainant made all reasonable efforts to find other employment and sources of income in the St. Peters Bay area, and elsewhere, and that he has fulfilled his duty to mitigate his losses.

24      This Board of Inquiry finds the Respondent to be in breach of section 6(1) of the Human Rights Act, R.S.P.E.I. 1988, Cap.  H-12 as amended, and recommends to the Human Rights Commission the following:
 
(a) That the Respondent pay to the Complainant the sum of $275,598.00 for his monetary loss as well as $2,000.00 for his injured feelings, for a total of $277,598.00;
(b) That the Respondent discontinue its present hiring practice of beer truckers and adopt the same or a similar practice now in place in New Brunswick where the breweries hire the truckers by a tendering process.

 

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