Date: 20021209
Docket: T-310-02
Neutral citation: 2002 FCT 1280
BETWEEN:
CANADIAN HUMAN RIGHTS COMMISSION
Plaintiff
GINO DUMONT
and
TRANSPORT JEANNOT GAGNON
Respondents
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review of a decision by a human rights tribunal ("the tribunal") allowing a complaint of discrimination filed by the complainant Gino Dumont against Transport Jeannot Gagnon pursuant to the Canadian Human Rights Act, R.S.C. 1985, c. H-2 ("the Act"). This application for judicial review deals strictly with the refusal to award an amount for psychic damage.
FACTS
[2] The facts may be summarized as follows.
[3] In March 1996, the complainant Gino Dumont, residing at Isle-Verte, was engaged in an occupation involving primarily long-distance transportation.
[4] Mr. Dumont was hired as a tractor trailer driver by the defendant Transport Jeannot Gagnon as of March 31, 2001.
[5] On June 2, 1996, he left Rivière-du-Loup for a delivery of newsprint to the Wall Street Journal at Bowling Green. When he arrived at Bowling Green on June 4, 1996, he felt a pain below his left shoulder, which got worse. He finally entered Wood County Hospital at Bowling Green and was there until June 7, 1996, for a perforation of the left lung or pneumothorax.
[6] On June 12, 1996, he went to his employer's head office to obtain an employment termination on account of illness. Mr. Dumont told Mr. Gagnon he could return to work on July 1, 1996. First, the latter required a certificate stating that Mr. Dumont was able to resume work. On July 5, 1996, he went to his employer and gave him the medical certificate. Mr. Gagnon told him that he had given his truck to another driver.
[7] In the days that followed he again contacted his employer to obtain work. Mr. Gagnon replied that because of the problem he had had, Mr. Gagnon could not take the risk of giving him work again.
[8] Mr. Dumont understood from Mr. Gagnon's remarks that his refusal to allow him to recommence work was based solely on the fact that he feared he would be ill again, and that he should look for other work.
[9] He contacted the Quebec Commission des normes du travail, which referred him to the Canadian Human Rights Commission, and he wrote the letter on August 2, 1996. The hearing took place on October 29 and 30, 2001.
[10] At the hearing Mr. Dumont testified about the impact of his departure from Transport Jeannot Gagnon on his morale, his finances and his family. I set out the relevant passage below:
[TRANSLATION]
Mr. Vigna:
Q. So Mr. Dumont, after your dismissal or departure from Transport Jeannot Gagnon, could you explain to the tribunal how you felt in that situation?
A. I felt betrayed, because I liked my work. I like working, I had already had enough with the illness and being in hospital, in addition to coping with the illness, which was temporary, I lost my job, and that caused me loss of salary and family problems. I cannot say that I had a lot of family problems, because my wife, we are quite close, but it caused misery for nothing. I could have gone on working and kept my job, and none of this would have happened. It is what is . . . that is what led me to make an application to the tribunal for compensation for it.
Q. As regards your morale, how was this affected by this situation?
A. It affected me, you wonder if you are still good for anything, when you are told such things, you always fear it will happen. At the same time, you do not think it will happen to you, but you always wonder. A question that I realized had no connection _ I know my health well enough to say that I am in good shape. What happened was an accident. It could happen to one person in I don't know how many thousand, but it was quite ordinary. We could have just passed it by, since there was no problem, but no, things did not work out, and I have other problems, financial problems, problems of morale. That is what happened.
Q. Now, financially, what consequences did this episode of June 4 in the U.S., until July 5, have: did you incur expenses in connection with those events?
A. Well, the expense I would have had _ as you can see from my tax return I declared bankruptcy _ if I had not been bankrupt it would have cost me at least $5,000 for hospital, apart from ambulance expenses which were $2,000, I think, if I remember rightly. The expense of bringing me back cost at least U.S. $500. I paid that. The ambulance, and the hospital, I did not pay them, because it was in the bankruptcy, nothing was paid before I declared bankruptcy. The transportation expenses, it was my father who gave me money so I could return to Canada.
The result was that I had no money to pay my instalments, car instalments, house instalments, insurance. I also had to eat. If I had not had this loss of employment I would not have incurred those problems. I would have understood, O.K., I had expenses to pay for the hospital and ambulance, then coming back to Canada, but I did not have to suffer the fact that I lost my employment in addition to what happened to me.
Plaintiff's record, at pp. 33-35. (My emphasis.)
[11] On February 3, 2002, the tribunal allowed Mr. Dumont's complaint, awarded him $1,700 for loss of salary and interest, but denied him any compensation for psychic damage.
ANALYSIS
[12] At the time of the discriminatory act, that is before the amendments of June 30, 1998, s. 53(3) of the Act read as follows:
| (3) In addition to any order that the Tribunal may make pursuant to section (2), if the Tribunal finds that:
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(3) Outre les pouvoirs que lui confère le paragraphe (2), le tribunal peut ordonner à l'auteur d'un acte discriminatoire de payer à la victime une indemnité maximale de cinq mille dollars, s'il en vient à la conclusion, selon le cas :
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| (a) a person is engaging or has engaged in a discriminatory practice wilfully or recklessly, or
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a) que l'acte a été délibéré ou inconsidéré;
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| (b) the victim of the discriminatory practice has suffered in respect of feelings or self-respect as a result of the practice,
the Tribunal may order the person to pay such compensation to the victim, not exceeding five thousand dollars, as the Tribunal may determine.
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b) que la victime en a souffert un préjudice moral.
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[13] The plaintiff noted that a majority of the human rights tribunal precedents have been that an amount is awarded for psychic damage when the complaint is allowed (Morgan v. Canada (Armed Forces) (1991), 13 C.H.R.R. D/42; Canada (Attorney General) v. Morgan (C.A.), [1992] 2 F.C. 401; Canada (Attorney General) v. Singh (2000), 37 C.H.R.R. D/501.
[14] Although s. 53(2) of the Act gives the tribunal discretion in granting various remedies when a complaint is valid, that discretion must be exercised judicially and in light of the evidence before the tribunal (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Pitawanakwat v. Canada (Attorney General), [1994] 3 F.C. 298 (T.D.)).
[15] In the case at bar the tribunal gave no reason for its refusal. The complaint was allowed and there is nothing in the complainant's testimony indicating any basis for denying compensation for psychic damage. An outright refusal to consider compensation of any kind without a justification, despite uncontradicted evidence that the complainant had suffered in respect of his feelings or self-respect, was an unreasonable exercise of that discretion.
[16] For these reasons, the application for judicial review is allowed. The matter is referred back for re-hearing before a panel of different members.
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"Danièle Tremblay-Lamer"
Judge
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OTTAWA, ONTARIO
December 9, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-310-02
STYLE OF CAUSE: CANADIAN HUMAN RIGHTS COMMISSION v. GINO DUMONT ET AL.
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: DECEMBER 5, 2002
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATE OF REASONS: DECEMBER 9, 2002
APPEARANCES:
GIACOMO VIGNA FOR THE PLAINTIFF
SOLICITORS OF RECORD:
GIACOMO VIGNA FOR THE PLAINTIFF
CANADIAN HUMAN RIGHTS COMMISSION
CANADA BUILDING
344 SLATER STREET
9th FLOOR
OTTAWA, ONTARIO
K1A 1E1
FOR THE DEFENDANT
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