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Kickham v. Charlottetown (City)

Report of the Board of Inquiry Between Gladys Kickham, complainant, and City of Charlottetown, respondent

Prince Edward Island Board of Inquiry Under the Human Rights Act J.K. Clark

June 12, 1986
(15 paras.)

Appearances:
 
Dolores Crane, for Gladys Kickham.
David Hooley, for the City of Charlottetown.
Linda Gaudet, for P.E.I. Human Rights Commission.
David Riley, for the Board of Inquiry.

1      On March 26, 1986, I issued my Decision in this case, holding that the City of Charlottetown had discriminated against the Complainant, Gladys Kickham, in relation to her sex contrary to the Human Rights Act Stats. P.E.I. 1975 C.72 ([1986] P.E.I.H.R.B.I.D. No. 2).

2      Section 25(3) of the Human Rights Act reads as follows:
 

"Where the matter referred to the Board of Inquiry is not settled between the parties and the Board finds a complaint is supported by a reasonable preponderance of the evidence, the Board shall report its recommendation to the Commission on the course that ought to be taken with respect to the complaint."

3      The Hearing in relation to the proper disposition of this matter was held on May 14th, 1986 at which time I heard viva voce evidence and submissions of Counsel, for all the parties involved, in relation to the appropriate final recommendation in this matter.

4      The main contention on behalf of the City of Charlottetown was to the effect that a Board of Inquiry does not have power pursuant to the Human Rights Act of Prince Edward Island and in particular Section 25(3) to recommend any awards in the nature of monetary compensation.  Mr. Hooley, Counsel for the City of Charlottetown, did indicate that there were certain functional remedies which the Board could recommend such as the ordering of a hiring of a person, who had been discriminated against.

5      In support of Mr. Hooley's submission that the Board does not have power to recommend monetary awards, he relied on the following cases:
 
1.

Rosanna Torres v. Royalty Kitchenware Ltd. and Francesco Guercio (1982) 3 C.H.R.R. D/858;

2.

Sharon Curtis v. Coastal Shipping Limited (1984) 5 C.H.R.R. D/1998;

3.

Vivian Wong v. Hughes Petroleum Limited (1983) C.H.R.R. D/1488.

6      The Torres case was a decision of the Board of Inquiry in Ontario, the Curtis case was a decision of the Board of Inquiry in Newfoundland and the Wong case was a decision of the Court of Queens Bench in Alberta.

7      In dealing firstly with the Sharon Curtis case, the only reference upon which Mr. Hooley relies is in the second last paragraph of the decision where the Board of Inquiry in speaking of the awarding of punitive damages, mentions certain legislative limitations.  It is difficult to discern what the Board of Inquiry was attempting to say in that matter and it is somewhat confusing, given the fact that the Board had earlier indicated that every effort must be made to ensure that restituio in integrum must be a guiding principle in discriminatory matters.

8      I reviewed the cases cited by Mr. Hooley as well as a number of other cases in relation to the alleged limitation of the powers of the Boards of Inquiry established under legislation similar to that of Prince Edward Island. Mr. Hooley's interpretation of these cases seems to be that, what this Board of Inquiry can recommend is limited due to our type of legislation. After careful consideration I must disagree.  It appears from the Torres case that a Board of Inquiry in Prince Edward IsLand does not have the power that Boards of Inquiry have in other jurisdictions due to the fact that it does not itself have power to make direct orders to the parties.  Rather, its function is, to recommend to the Human Rights Commission what it feels would be the proper disposition of the matter.  As I read the development of the Human Rights Law in Canada, certain other provinces have broadened the powers of Boards of Inquiry by giving them the ability to directly make awards and orders to the parties involved before such Board of Inquiry.  It would appear that when the legislatures of those other provinces relinquished, to an extent, the supervisory powers previously held by the Minister of Justice, they limited some of the order making powers given to the respective Boards of Inquiry such as is shown in the Alberta legislation and evidenced in the Wong matter.  Therefore, I do not feel that the recommendations which a Board of Inquiry can make in Prince Edward Island are limited as suggested by Mr. Hooley, but I do agree with the decisions quoted, to the extent that a Board of Inquiry in Prince Edward Island does not have the same powers as some Boards of Inquiry in other provinces, in that a Board of Inquiry makes a recommendation to the Commission and does not have direct order making power as do Boards of Inquiry in some of the other provinces.

9      In support of the foregoing, I refer to the often quoted text, Discrimination and the Law, by Walter S. Tarnopolsky, now Mr. Justice Tarnopolsky of the Ontario Court of Appeal.  In his text, Mr. Tarnopolsky stated at Page 485 as follows:
 

"All human rights Acts in Canada, except that of Quebec, empower the respective hearing tribunals to recommend or order the rectification of an act of discrimination which has been found to have occurred (in the case of Quebec the recommendation is that of the Commission).  The simplest and, thereby, presumably, the widest power of recommendation is provided for in the statutes of New Brunswick (s. 20(4)), Newfoundland (s. 18(1)), and Prince Edward Island (s. 250)).  In each of these cases the recommendation is as to the course that ought to be taken with respect to the complaint" (in Newfoundland the crucial word used is "should")."

10      Boards of Inquiry have over the years changed their approach to complaints as was stated by Mr. Cummings in the Torres Case at Page D/865:
 

"Historically Boards of Inquiry have interpreted Human Rights Statutes and the remedial powers under those statutes in according with their perception of the purposes of the legislation.  There has been a trend in Canadian cases beyond the early, limited view that Human Rights Laws have as their primary purpose that of effecting public education about Human Rights in Canadian Society, to a broader view that the essence of the Statute is compensation to the aggrieved individual."

11      A number of cases have stated, that there is a presumption that victims will be compensated with special and general damages where discrimination has been found.  I therefore do not feel that I am limited in my recommendation to functional remedies but do believe that the recommendations of a Board of Inquiry on Prince Edward Island can include a recommendation for monetary compensation.

12      Counsel for the Complainant as well as Counsel for the Human Rights Commission requested that punitive or exemplary damages be awarded in this matter.  A review of the Case Law would indicate that, to an extent, Boards of Inquiry have been hesitant to award punitive damages.  Irrespective of this, I do not feel that the conduct of the City of Charlottetown, in this matter, was such as to warrant exemplary or punitive damages.

13      Ms. Crane, as Counsel for Ms. Kickham requests that Ms. Kickham be compensated for the days off she utilized in the pursuit of her complaint.  Ms. Crane requested that Ms. Kickham be paid and compensated for these days at the same rate of pay she would be receiving as a Peace Officer at the University of Prince Edward Island.  I know of no precedent which affords the awarding of damages to any person for time utilized on days off or vacation days for the pursuit of their cause of action and do not feel it is a proper item for which Ms. Kickham should be compensated.  I would therefore disallow the claim of Ms. Kickham in relation to compensation for her days off she utilized in the pursuit of her complaint.

14      Counsel for Ms. Kickham requested that if general and special damages be awarded, that Ms. Kickham also be awarded interest on such general and special damages from the date the complaint was served on the Respondent.  This approach was followed in the Ontario Board of Inquiry in, the case of Gladstone Leslie Scott v. Foster Wheeler Limited.  In the Ontario case of Cindy Cameron v. Nel-Gor Castle Nursing Home and Marlene Nelson 1984 (5 C.H.R.R.D/2170), the Board of Inquiry, Mr. Peter A. Cummings, stated at paragraph 18565 as follows:
 

"The commencement date for interest is the time of service of the complaint upon the Respondents which was sometime before December 31st, 1982.  The applicable interest rate is that established by the Bank of Canada for the month previous to the month in which service of a complaint is effected, in this case November 1982.  The applicable Bank of Canada interest rate for November 1982, was Thirteen percent (13%)."

15      I would recommend to the Human Rights Commission and the Minister of Justice that the following provisions form part of an order made pursuant to Section 21 of the Human Rights Act P.E.I.:
 
1.

THAT Gladys Kickham be offered a position as Probationary Police Constable with the City of Charlottetown Police Force on the same terms and conditions upon which Mr. Gary MacGuigan was hired by the City of Charlottetown on May 17th, 1985. This offer to be within ten (10) days of the order of the Minister of Justice.  I would recommend that the City of Charlottetown give Ms. Kickham this offer in writing with the employment to commence within the next Forty-five (45) days of delivery of the offer.  I would suggest that Ms. Kickham be afforded Twenty-one (21) days to respond to such offer.

2.

THAT the City of Charlottetown be ordered to pay to Ms. Kickham special damages in the amount of Five Thousand Seven Hundred Eighty-two Dollars and Twenty-six Cents ($5,782.26) being the difference in salary and overtime from what she would have earned had she been hired by the City of Charlottetown and what she earned as a Peace Officer with the University of Prince Edward Island.  This award of special damages would include the difference in salary up to and including May 15th, 1986.  I would also suggest that Ms. Kickham be awarded special damages to cover the difference in her remuneration from May 15th, 1986 to such time as an offer of employment is made by the City of Charlottetown, at which time the calculation of such additional special damages shall terminate.

3.

THAT the City of Charlottetown be ordered to pay Ms. Kickham general damages in the amount of Three Thousand Dollars ($3,000.00). Ms. Kickham has suffered a substantial amount of insult to her dignity as well as emotional upset and inconvenience.  I have considered recent decisions of a similar nature and feel that this award of general damages is appropriate.

4.

THAT the City of Charlottetown pay Ms. Kickham interest on the total, special, and general damages (which I compute as Eight Thousand Seven Hundred Eighty-two Dollars and Twenty-six ($8,782.26) as of May 15th, 1986) at the rate of Ten point One Seven percent (10.17%) per annum, being the average Bank of Canada rate for the month of April 1985 (being the month prior to the service of the complaint upon the City of Charlottetown).  I compute this interest award to be from the 15th day of May, A.D. 1985 to the 15th day of May, A.D. 1986 with such total interest award to Ms. Kickham therefore being the amount of Eight Hundred Ninety-three Dollars and Sixteen Cents ($893.16).


 

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