Law Times

Law Times • apriL 11, 2016 Page 7 www.lawtimesnews.com COMMENT Human Rights Tribunal needs to revisit discrimination remedies BY JENNIFER RAMSAY O n March 17, 2016, the Human Rights Tri- bunal of Ontario released its decision in Lewis v. Sugar Daddys Nightclub, finding that Caesar Lewis was subjected to vicious physi- cal and verbal abuse based on his gender identity and expression. Lewis and three friends were enjoying a night out when Lewis was dragged from the stall he was using in the nightclub's washroom. e Tribunal found on the facts that the young man and his friend were told: "You freaks need to get your fucking faggot asses out of this club." Aer being forcibly ejected from the club, "three security guards started to physically assault the ap- plicant by pushing him to the ground, kicked him approximately 10 times in the back and head, and punched him approximately 10 times." e beating resulted in a concussion and other injuries. e Tribunal awarded only $15,000 in financial compensation. In contrast, in Silvera v Olympia Jewellery Corpora- tion, 2015 ONSC 3760, Ontario's Superior Court award- ed $30,000 specifically in relation to human rights vio- lations, out of a total award of more than $200,000, in a sexual harassment and employment case. e low Tribunal award in Sugar Daddys may sur- prise readers given the persistent chatter in many cir- cles about perceived increases in human rights awards. e recent Tribunal decision in O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675, in which a migrant worker was awarded $150,000 aer persistent sexual aggressions, contributed to this myth that human rights awards are increasing. e exceptional award in Presteve is not reflective of any trend, despite the record number of alarmist articles written by respondent counsel about "skyrocketing" damage awards. e cap on damage awards was lied in 2008 as part of changes to the Hu- man Rights Code, yet a recent analysis of Tribunal de- cisions over a 15-year period shows continued restraint and flat-lined awards. In "Undercompensating for Discrimination: An Em- pirical Study of General Damages Awards Issued by the Human Rights Tribunal of Ontario, 2000-2015," Audra Ranalli, a student of Osgoode's Anti-Discrimination Intensive Program based at the Human Rights Legal Support Centre, analyzed all general damages awards issued by the Tribunal from Jan. 1, 2000 to Dec. 31, 2015. Ranalli and co-author Prof. Bruce Ryder found that the average amount of general damages awards has in fact declined over the past 15 years when inflation is taken into account. Ranalli parsed the data into four time periods to consider how changes to the Code and Ontario's hu- man rights system may have had an impact on awards. e most recent period analyzed, 2013-2015, showed that the average award was $12,158. An average compensation of $12,000 for proven human rights violations? It's 2016. Discriminatory con- duct (oen coupled with wilful ignorance of the law, re- fusal to investigate, and prolongation of harm) should attract significant financial compensation for the per- son whose human rights have been violated. For the businesses involved, the risk of a substantial award that amounts to more than a "nuisance fee" would create the incentive to establish aggressive anti-discrimination strategies to prevent human rights violations in the first place. ese are the efforts that are needed to create real change in the lives of people harmed by discrimination. It's certainly not all about the money. e Human Rights Legal Support Centre repre- sented claimants at 81 Human Rights Tribunal hear- ings and 440 mediations in 2014-2015. Based on our experience, most human rights claimants are equally motivated by a desire to have their human rights vio- lations clearly and publicly acknowledged and to try to prevent others from experiencing the same discrimin- ation and harassment — whether in policing, schools, housing, or at work. e Tribunal has very broad powers to combat dis- crimination. Its remedial powers are aimed at fulfilling the public policy goal set out in the preamble to the Hu- man Rights Code to "provide for equal rights and oppor- tunities without discrimination that is contrary to law." e Tribunal is empowered, under s. 45(2)3 of the Code, to issue orders directing parties "to do anything that, in the opinion of the Tribunal," they ought to do "to promote compliance" with the Code, including "with respect to future practices." Moreover, the Tribunal may make orders that go be- yond the specific remedies requested by the applicant. In Sugar Daddys, the applicant requested $15,000, but given the egregious facts in that case, a higher award was justified. In addition, the Tribunal might have or- dered the respondent to take specific steps to ensure its existing gendered washrooms are accessible to and safe for non-binary/genderqueer/trans people, and that the club install a single-user gender-neutral washroom as an alternative for anyone who chooses it. e Human Rights Tribunal has formidable powers to send a clear message to both human rights claim- ants and the institutions that propagate discriminatory harm. Let's make sure that all Ontarians benefit from the exercise of those powers. LT uJennifer Ramsay works at the Human Rights Legal Support Centre. e Centre provides free legal assistance to people in communities across Ontario who have experienced discrimination contrary to Ontario's Human Rights Code. u SPEAKER'S CORNER Recording independent medical examinations T here was a time when most accepted the testimony of police officers with little scrutiny. We have moved beyond that Pollyanna view of the world. We have seen too many instances where video recordings have exposed misrepresentations by police officers. We now expect most interactions between police officers and suspects to be recorded in some manner. Some police officers wear body cameras. There are cameras in police vehicles. Cameras are used in interview rooms. ese advances serve to protect both the public and the police. ey aid in fact finding in court. ey help prevent mis- carriages of justice. A recent decision of the Ontario Su- perior Court of Justice, Bruff-Murphy v. Gunawardena 2016 ONSC 7, raises the issue of whether we should be recording medical assessments conducted by as- sessors appointed by insurers or defence counsel in personal injury litigation. e Bruff-Murphy litigation resulted from a garden-variety motor vehicle rear- end collision. e plaintiff alleged she suffered extensive injuries resulting from the accident. e defendant, meaning the defendant's insurer, claimed the plaintiff 's injuries were not caused by the collision. e defendant retained a psychiatrist to assess the plaintiff. is psychiatrist tes- tified the plaintiff was faking. He reached this conclusion aer having interviewed the plaintiff for 75 or 90 minutes and then spending 10 to 12 hours reviewing the plaintiff 's medical files. e interview was not re- corded and, according to the trial judge, the psychiatrist "discarded any notes he may have made during his inter- view of the plaintiff. His only record of her comments is contained in his report dictated aer he inter- viewed the plaintiff and aer his subsequent lengthy review of her medical records." e psychiatrist's negative conclusions concerning the plaintiff were largely based upon what he claimed the plaintiff had stated during her interview. is required the judge to make credibility findings concerning what was or was not stated during the interview. ere were large discrepancies be- tween what the plaintiff had told another defence assessor and what the psychia- trist testified the plaintiff had told him. According to the judge, "[o]ne obvious explanation" is that the psychiatrist "is not accurately reporting what the plaintiff said to him." e judge noted that the psychiatrist had no record of questions asked of the plaintiff or the answers given save as was recorded in his report. In concluding the psychiatrist was not a credible witness, the trial judge stated the psychiatrist was "making up evidence as he testified to support his conclusions adverse to the plaintiff." Ironically, the psychiatrist testified that in conducting his independent medical assessments "he does not ac- cept what the person being assessed says due to their pos- sibility of seeking secondary gain." e judge turned this around stating the psychia- trist "at the same time has a financial incentive in re- peatedly being engaged to conduct IMEs [independent medical examinations] by the defendants." Of course, the findings of fact would not have been necessary had the plaintiff 's interview been recorded; we would have had a complete record of what the plain- tiff had told the psychiatrist. All of this leads me to ask why we don't routinely record the interviews that take place between defence experts and plain- tiffs. Is it because we place these experts, usually medical doctors, on a higher plane and implicitly trust them? Is it be- cause we trust them to be impartial and always testify impartially in accordance with their oath? Just as we have seen with police offi- cers, we cannot have blind faith in the tes- timony of defence experts. As illustrated in the Bruff-Murphy and other cases, some defence experts become hired guns. We have seen modest changes in the rules of civil procedure concerning expert wit- nesses. We have also seen greater scrutiny of experts by some courts. Yet, we must do more to fix the problem of hired-gun experts, who seem too willing to tailor their evidence to support their partisan conclusions. One obvious way is to re- quire that their interviews be recorded. Regrettably, insurers and their experts do not lightly accede to requests that de- fence medicals be recorded. A court order is required, and obtaining such an order is no easy task, with some courts requir- ing "substantial and compelling reasons" prior to granting an order. Why wouldn't an expert want irrefut- able evidence of what was said and the examinations conducted during an as- sessment? A recording protects experts from allegations of wrongdoing by those they interview or assess. Further, as stated in Moroz v. Jenkins, 2010 ONSC 4789, "[t]he ability to review the defence ex- amination and compare it to the report should in most instances promote settle- ment by demonstrating to both sides the correlation between what the psychia- trist saw and heard and his or her con- clusions." Common sense dictates that defence examinations, particularly psy- chiatric examinations, be recorded when reasonably sought by plaintiffs. is would avoid disputes concerning what was or was not said during the as- sessment. It may encourage reasonable settlements. It may prevent experts from tainting jurors with partisan evidence. It's time to take a more modern and realistic approach to this contentious issue. LT uAlan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. Social Justice Alan Shanoff

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