Page: 1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION

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1 Page: 1 PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION Citation: Ayangma v. Eastern School Board and Ano PESCAD 10 Date: Docket: S1-AD-1125 Registry: Charlottetown BETWEEN: NOEL AYANGMA APPELLANT AND: EASTERN SCHOOL BOARD RESPONDENT AND: RICHARD W. MONTIGNY, a Human Rights Panel appointed pursuant to s.26 of the Human Rights Act, R.S.P.E.I. 1988, Cap. H-12 and the P.E.I. Human Rights Commission RESPONDENT Before: The Honourable Mr. Justice J.A. McQuaid The Honourable Madam Justice M.M. Murphy The Honourable Mr. Justice K.R. MacDonald Appearances: Noël Ayangma, present and representing himself Christopher S. Montigny, counsel for the Respondent Eastern School Board Yolande S. Richard, counsel for the Respondent Richard W. Montigny, a Human Rights Panel appointed pursuant to s.26 of the Human Rights Act, R.S.P.E.I. 1988, Cap. H-12 and the P.E.I. Human Rights Commission Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island January 24 and 25, 2008 Charlottetown, Prince Edward Island July 4, 2008

2 Page: 2 CIVIL RIGHTS - Discrimination - Employment - Remedies - Judicial review - Appeals The appellant s appeal from the order of the reviewing judge dismissing his cross-application for the judicial review of the decision of a human rights tribunal was allowed, in part. The respondent s cross-appeal from the reviewing judge s dismissal of its application for a judicial review of the tribunal s finding of discrimination was dismissed. Authorities Cited: CASES CONSIDERED: Ayangma v. Eastern School Board 2004 PESCAD 23; (2004) 242 Nfld. & P.E.I.R. 263; (2004) 23 Admin. L.R. (4th) 226; Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19; [2003] 1 S.C.R. 226 (SCC); Ayangma v. French School Board 2005 PESCAD 18 (PESCAD); Dunsmuir v. New Brunswick 2008 SCC 9 (SCC); Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Sangha v. MacKenzie Valley Land and Water Board 2007 FC 856; [2007] F.C.J. No (F.C.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (SCC); Piazza v. Airport Taxi (Malton) Assn. (1989), 69 O.R. (2d) 281 (Ont. C.A.); Canadian Armed Forces v. Morgan CANLII 1358 (C.H.R.T.); C.H.R.R. 42 (Can. Human Rts. Review Tribunal); Morgan v. Canada (Armed Forces) (1992), 85 D.L.R. (4 th ) 472 (FCA); Chopra v. Canada (Attorney General) 2006 FC 9; Fort McMurray Catholic Board of Education v. Alberta Human Rights and Citizenship Commission 2005 ABQB 165; [2005] A.J. No. 232; Canada (Attorney General) v. McAlpine, [1989] 3 F.C. 530; Canada (Attorney General) v. Morgan, (1992), 85 D.L.R. (4 th ) 472 (FCA); Chopra v. Canada (Attorney General) 2007 FCA 268; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181 (SCC); Chopra v. Canada (Attorney General) 2007 FCA 268; Red Deer College v. Michaels, [1976] 2 S.C.R. 324 (SCC); C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R (SCC) STATUTES CONSIDERED: Human Rights Act, R.S.P.E.I. 1988, Cap. H-12, ss.22-28, s. 28.4(1)(iv), s.28.4(1)(c); Judicial Review Act, R.S.P.E.I. 1988, Cap. J- 3, s-ss.2(b) and (g), s.8; Supreme Court Act R.S.P.E.I Cap. S-10, s.56(1) TEXTS CONSIDERED: Russel W. Zinn, and Patricia P. Brethour: (THE) LAW OF HUMAN RIGHTS IN CANADA: PRACTICE AND PROCEDURE (Canada Law Book, 1996)

3 Page: 3 Reasons for judgment BY THE COURT: Background [1] On August 17, 1998 the appellant filed a complaint with the Prince Edward Island Human Rights Commission alleging that the Eastern School Board (the respondent ) discriminated against him on the basis of race, age, ethnic/national origin and colour. The appellant alleged the discrimination arose in the context of the appellant s application for employment as a teacher with the respondent. Specifically, the appellant alleged that even though he was qualified for teaching positions with the respondent for the school year, he was not given an opportunity to be interviewed for any of these positions. [2] The appellant s complaint of discrimination was considered within the process provided for by the Human Rights Act, R.S.P.E.I Cap H-12, ss (the Act). The various steps taken within the process have been the subject of a number of judicial review applications as well as a number of appeals from the decisions rendered on those applications. In the last of these appeals, a majority of this division of the Court ordered the Chairperson of the Prince Edward Island Human Rights Commission (the Commission ) to appoint a Panel pursuant to the provisions of s. 26(1) of the Act to adjudicate upon the appellant s complaint. See: Ayangma v. Eastern School Board 2004 PESCAD 23; (2004) 242 Nfld. & P.E.I.R. 263; (2004) 23 Admin. L.R. (4th) 226. [3] The respondent, Richard Montigny, (the Panel ) was appointed by the Chairperson and a lengthy hearing was held. The Panel delivered a written decision on December 8, 2005 finding that the respondent had discriminated against the appellant when it denied him an opportunity to be interviewed for various teaching positions which were available in the school year. The Panel awarded the appellant compensation for lost income subject to a deduction for a failure to mitigate, plus compensation for hurt and humiliation. The Panel also ordered the respondent to pay interest on the total amount of the damages awarded. [4] The respondent paid the appellant the amount of compensation awarded, together with interest, and filed an application for judicial review of the Panel s decision. The appellant filed a cross-application for judicial review seeking a review of the remedies ordered by the Panel. Cheverie J. (the applications judge ) heard the application and cross-application. He dismissed both. See: Ayangma v. Prince Edward Island Eastern School Board 2007 PESCTD 18; (2007) 268 Nfld. & P.E.I.R [5] The appellant filed an appeal from the order of the applications judge and the

4 Page: 4 respondent filed a cross-appeal. The appellant argues the applications judge erred in dismissing his application to review the Panel s order with respect to the nature and extent of the remedies awarded to the appellant. In response to the appeal, the respondent argues the applications judge did not err in concluding that the Panel s decision with respect to the remedies was reasonable. [6] In its cross-appeal, the respondent argues the applications judge erred in dismissing its application to review the Panel s decision with respect to the finding of discrimination. In response to the cross-appeal, the appellant takes the position that the Panel s finding of discrimination was reasonable, and the applications judge did not err in finding the respondent had discriminated against the appellant when it denied him an opportunity to compete for teaching positions in the school year. ISSUES [7] The appeal and the cross-appeal give rise to the following issues: (1) whether the applications judge chose the correct standard of review; (2) whether the applications judge erred in employing the standard of reasonableness to his review of the Panel s finding of discrimination on the part of the respondent; (3) whether the applications judge erred in reviewing the Panel s award for compensation to the appellant for lost income or wages as well as for hurt and humiliation on a standard of reasonableness; (4) whether the applications judge erred in reviewing the Panel s denial of an award for certain nonmonetary relief? The Standard of Review [8] As this is an appeal from the decision of a judge of a superior court sitting on judicial review of an inferior tribunal s decision, the standard of review which this division of the Court is to employ is as directed by the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19; [2003] 1 S.C.R At para. 43 of that decision, McLaughlin C.J.C. stated as follows:... The role of the Court of Appeal was to determine whether the reviewing judge had chosen and applied the correct standard of review, and in the event she had not, to assess the administrative body's decision in light of

5 Page: 5 the correct standard of review, reasonableness. At this stage in the analysis, the Court of Appeal is dealing with appellate review of a subordinate court, not judicial review of an administrative decision. As such, the normal rules of appellate review of lower courts as articulated in Housen, supra, apply. The question of the right standard to select and apply is one of law and, therefore, must be answered correctly by a reviewing judge.... [9] After reviewing a number of authorities and undertaking a contextual pragmatic and functional analysis of the role of the Prince Edward Island Human Rights Commission, the applications judge concluded at para.16 of his reasons that he was to review the Panel s decision, both with respect to the finding of discrimination and the finding as to the nature and scope of the proper remedies, on a standard of correctness with respect to questions of law and on a standard of reasonableness simpliciter with respect to questions of mixed fact and law. The applications judge also concluded that the nature of all the issues raised by the decision of the Panel were those of mixed fact and law. Accordingly, in his opinion the decision of the Panel was to be reviewed on the standard of reasonableness simpliciter. [10] In selecting the standard of reasonableness as the standard upon which to review the Panel s decision, the applications judge was following the decision of this court in Ayangma v. French School Board 2005 PESCAD 18; (2005) 248 Nfld. & P.E.I.R. 79. The reasons of Webber J.A., writing for the Court in that case, set forth the standard of review to be applied when an applications judge is reviewing decisions of a Human Rights Commission. She stated as follows: [5] As I noted in Corps of Commissionaires v. Labour Rel. Bd. (PEI), 2005 PESCAD 11 (CanLII), 2005 PESCAD 11 at paras. 16 and 17, the Supreme Court of Canada has recently affirmed the procedure for determining and applying the standard of review to decisions of administrative tribunals. (See Voice Construction Ltd. v. Construction and General Workers Union, Local 92, 2004 SCC 23 (CanLII), [2004] 1 S.C.R. 609; 204 SCC 23; Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28 (CanLII), [2004] 1 S.C.R. 727, 2004 SCC 28.) Using a pragmatic and functional approach a court, in this case the Trial Division of this court, must determine the extent of judicial review that the Legislature intended for a particular decision of a tribunal. In turn, a secondary appellate court must ensure that the correct standard of review was chosen by the lower court, and that it was properly applied to each issue. The question of whether or not the correct standard was chosen is a question of law that must be answered correctly by the lower court. If the correct standard was chosen, then the secondary reviewing court will consider the application of that standard to the facts with the deference standard set out in Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.J. No. 31, 2002 SCC 33.

6 Page: 6 [6] In the instant case the trial judge identified the appropriate contextual factors of: (1) the presence or absence of a privative clause or a statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purpose of the legislation, in particular the relevant provisions; (4) the nature of the question, whether of law, fact or mixed law and fact. [7] The Human Rights Act R.S.P.E.I. 1988, Cap. H-12, states at s-s. 28(8): A decision of the Human Rights Panel is final and binding upon the parties. [8] There is, however, no privative clause. And while there is no statutory right of appeal, the decision is subject to judicial review under the Judicial Review Act, R.S.P.E.I Cap. J-3. Overall then, while some deference would be due the tribunal under this aspect of the analysis, it is clear that the Legislature did not intend to preclude review of decisions by the court. [9] With respect to the expertise of the tribunal relative to that of the reviewing court on the issue in question, the Commission has by statute been given the specific responsibility for investigating and adjudicating complaints of discrimination based on alleged violations of the Act. They therefore have experience in this area generally and this experience will require some deference. However, historically such deference has been limited to questions of fact (see: Canadian Human Rights Commission v. Mossop, 1993 CanLII 164 (S.C.C.), [1993] 1 S.C.R. 554 at pp ; Trinity Western University v. British Columbia College of Teachers, [2002] 1 S.C.R. 772). [10] As for the purpose of the legislation, clearly the purpose of the human rights legislation in this province is to prohibit discrimination on the stated grounds and to establish a process for the investigation and adjudication of complaints that such discrimination has occurred. Given this mandate, it would be expected that the Commission established to carry out this mandate would have developed expertise in this area and would thus be entitled to some deference. Again, however, this would seem to depend upon whether the issues in question were ones of law or of fact. The Supreme Court of Canada has generally been

7 Page: 7 of the view that on issues of law, which involve interpretation of statutory powers, human rights commissions do not have any special expertise greater than the courts. So no particular deference is due on this basis. [11] These comments indicate that the clear identification of issues and their classification as issues of law, fact or mixed law and fact is essential for a proper determination and application of the standard of review to administrative tribunals. While it is generally correct to state that when dealing with human rights tribunals issues of law must be decided correctly and decisions on issues of fact must meet the test of reasonableness, this requires that the issues in question be clearly identified, especially when dealing with questions of mixed law and fact. Those may be entitled to either more or less deference, depending upon their nature. (Our emphasis) [11] This analysis of the manner in which the standard of review is determined when reviewing the decision of a tribunal established under the provisions of the Act, like the Panel in the case at bar, has been applied in numerous decisions of this division of the court as well as in the Trial Division. Of significance, however, are the comments of Webber J.A. that we have emphasized. When there are issues involving questions of mixed fact and law they must, if they are not inextricably connected, be separately identified. The tribunal s decision on a question of fact is entitled to more deference (reasonableness), while the tribunal s decision on a question of law in the human rights context and particularly those laws of general application is not entitled to any deference (correctness). This is important in the case at bar because in our view the determination by the applications judge of the proper standard of review did not account for the fact that within some of the issues considered and decided by the Panel, there were questions of law of general application which he should have reviewed on the standard of correctness. [12] Subsequent to the decision of the applications judge and subsequent to the hearing of this appeal, the Supreme Court of Canada delivered reasons for judgment in Dunsmuir v. New Brunswick 2008 SCC 9. This decision directs that there are now only two standards of review, namely correctness and reasonableness. See: paras. 34 to 43. [13] Furthermore, the Court clarified that the exercise of determining the standard of review involves a two-step process; first, the court considers whether previous jurisprudence has clearly and satisfactorily determined the degree of deference to be accorded the tribunal on certain types of questions or issues. For example, where previous jurisprudence has indicated that the standard of review in a particular situation is correctness, the reviewing court should follow that jurisprudence and apply a similar standard. Secondly, if reference to previous judicial decisions does not assist in the determination of the proper standard of review, the reviewing court

8 Page: 8 must proceed to an analysis of certain factors to determine the proper standard of review. This analysis is to be referred to as the standard of review analysis and not the pragmatic and functional analysis. At paras. 62 to 64 Bastarache and LaBel JJ., writing for the majority of the Court, stated: [62] In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of defence (sic) to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [63] The existing approach to determining the appropriate standard of review has commonly been referred to as pragmatic and functional. That name is unimportant. Reviewing courts must not get fixated on the label at the expense of a proper understanding of what the inquiry actually entails. Because the phrase pragmatic and functional approach may have misguided courts in the past, we prefer to refer simply to the standard of review analysis in the future. [64] The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue; and (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. [14] The decision in Dunsmuir also confirms that issues of law of general application, not within the special expertise of a tribunal, are to be reviewed by a court on a standard of correctness. Questions of mixed fact and law where the question of law cannot be easily extricated from the factual issues are to be reviewed on the standard of reasonableness. See: Dunsmuir at paras. 51, 53 and 60. [15] In Dunsmuir, the court also lends clarity to a definition of the concepts of correctness and reasonableness in the context of what it means for a court to show deference or the lack of deference to a tribunal s decision. We will refer to this discussion later in these reasons. [16] As we have stated, it has been well settled by previous jurisprudence, in addition to this division s decision in Ayangma v. French School Board, that the standard of review on questions of law in the context of human rights legislation is correctness. See: Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at paras. 25, 45; Sangha v. MacKenzie Valley Land and Water Board 2007 FC 856;

9 Page: 9 [2007] F.C.J. No (F.C.) at para. 20. Therefore, as the standard of review to be applied by a reviewing court to the decision of a human rights tribunal on questions of law has been determined and applied in previous jurisprudence in this court and in the Supreme Court of Canada, the same standard should be applied in this case. [17] We respectfully disagree with the applications judge that all the issues which arise on a review of the Panel s decision were ones of mixed fact and law which should have been reviewed on a standard of reasonableness. The decision as to whether the appellant was entitled to compensation for loss of income as well as the determination of the appropriate quantum of such compensation, raised questions or principles of law of general application which were discrete from the related questions of fact. The issues arising from these legal principles should have been reviewed by the applications judge on the standard of correctness. [18] The nature of these questions brought into issue principles which involved an understanding of concepts of general law. A human rights tribunal would not be considered to have any special expertise, greater than that of a court, to decide these legal issues. Where these issues arise, we will assess the Panel s decision in relation to them on the standard of correctness. On the other hand, the application of the proper legal principles by the Panel to the facts of the complainant s case engages issues of mixed fact and law which, as the applications judge determined, should be reviewed on the standard of reasonableness simpliciter. Where these issues arise, the role of this court is to consider whether the applications judge made a palpable and overriding error in his review of the Panel s decision. [19] The appellant sought a number of remedies when his complaint was heard by the Panel and these will be set out later in our reasons. In his decision the Panel provided reasons why he was imposing some of the remedies sought; however, the Panel failed to give reasons why it refused to grant a number of non-monetary remedies sought by the appellant. [20] The importance of reasons cannot be overemphasized. Recent jurisprudence in many areas of the law is unequivocal in stating there is a duty upon a decision maker, including a human rights tribunal, to explain to the parties the reasons for reaching a particular conclusion. The parties are entitled to reasons to assess their right to appeal or to judicial review. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (SCC), the Court was considering the decision of an immigration appeal tribunal. At para. 39 L Heureux-Dubé J. stated: [39] Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a

10 Page: 10 decision is to be appealed, questioned, or considered on judicial review: R.A. Macdonald and D. Lametti, Reasons for Decision in Administrative Law (1990), 3 C.J.A.L.P. 123, at p.146: Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.), at para.38. Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given. de Smith, Woolf, & Jowell, Judicial Review of Administrative Action (5 th ed. 1995), at pp I agree that these are significant benefits of written reasons. [21] And at para.43, she stated: [43] In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunninghman, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached. [22] In the case at bar where human rights are in issue, the parties are entitled to reasons from the decision maker. The failure to give reasons results in a breach of the Panel s duty to accord with the principles of procedural fairness. The Panel s decision, therefore, on these remedies and its refusal to grant the remedies, is entitled to no deference and should have been reviewed by the applications judge on the standard of correctness. Accordingly, we will review them on that standard.

11 Page: 11 The Review of the Panel s Finding of Discrimination [23] The respondent s cross-appeal gives rise to the question as to whether the applications judge erred in finding the Panel s decision that the respondent discriminated against the appellant was a reasonable decision. [24] The applications judge was correct in concluding that the Panel s finding of discrimination by the respondent against the appellant was to be reviewed on a standard of reasonableness simpliciter. The Panel s decision that the appellant had established a prima facie case of discrimination as well as the Panel s decision that the respondent had failed to rebut the prima facie case, both raised issues of mixed fact and law. The decision that the respondent failed to rebut the finding of a prima facie case of discrimination is probably more factually intensive than the decision as to whether there was a prima facie case of discrimination. The issues of law which do arise in the disposition of these questions were so interwoven with the issues of fact, they can be reviewed on the standard of reasonableness. [25] We have considered the review by the applications judge of the decision made by the Panel that the respondent discriminated against the appellant when it denied him the opportunity to interview for teaching positions in the school year. The applications judge did not make a palpable and overriding error when he found to be reasonable the Panel s decision that the appellant had established a prima facie case of discrimination and the further decision that the respondent did not rebut this prima facie case. As the applications judge explained in his reasons, a probing examination of the Panel s decision reveals the decision is supported by the evidence. In denying the appellant an opportunity to be interviewed for teaching positions, there was evidence to support the Panel s decision that the appellant was discriminated against on the basis of race, age, ethnic/national origin and colour. [26] The respondent argued the reviewing judge erred in failing to find that the Panel overlooked evidence that: (i) the respondent adhered to its hiring policy, which was not discriminatory, when it decided not to afford the appellant an opportunity to be interviewed; and (ii) the appellant was not diligent in maintaining his application file with the respondent. We are unable to agree that the applications judge erred in overlooking the evidence in these respects. [27] At paras. 24 to 34 of his reasons, the applications judge reviewed the evidence accepted by the Panel as well as additional evidence before the Panel with respect to the issue of discrimination. The applications judge concluded the Panel relied upon relevant evidence, and on the basis of the evidence as a whole, the decision of the Panel withstood a probing examination. In reviewing the decision of the Panel on the standard of reasonableness simpliciter, it was not the role of the applications judge to substitute his view of the evidence for that of the one-person

12 Page: 12 Panel. The applications judge properly understood his role as being one where he reviewed the evidence, reviewed the decision of the Panel and assessed whether the finding of discrimination, being one of mixed fact and law, was a decision which was supported by the evidence. Having also reviewed all the evidence as well as the decisions of both the Panel and the applications judge, we are unable to conclude the reviewing judge made a reversible error. [28] Therefore, we would dismiss the cross-appeal from the order of the applications judge upholding the Panel s finding of discrimination. Relevant Provisions of the Act [29] Pursuant to s of the Act, the Panel is vested with the power to remedy acts of discrimination in a number of ways. The section provides as follows: 28.4 (1) A Human Rights Panel (a) (b) shall, if it finds that a complaint is without merit, order that the complaint be dismissed; and subject to subsection (2), may, if it finds that a complaint has merit in whole or in part, order the person against whom the finding was made to do any or all of the following: (i) (ii) (iii) (iv) (v) to cease the contravention complained of; to refrain in future from committing the same or any similar contravention; to make available to the complainant or other person dealt with contrary to this Act, the rights, opportunities or privileges that the person was denied contrary to this Act; to compensate the complainant or other person dealt with contrary to this Act for all or any part of wages or income lost or expenses incurred by reason of the contravention of this Act; to take any other action the Panel considers proper to place the complainant or other person dealt with contrary to this Act in the position the person would have been in, but for the contravention. (2) Subject to subsections (3), (4), and (5), where

13 Page: 13 (a) (b) a Human Rights Panel orders compensation in respect of a complaint made pursuant to subsection 6(1) relating to termination of employment or refusal to employ; and the complainant has been employed by the respondent in the twelve months preceding the discriminatory act on which the complaint is based, the amount awarded by the Human Rights Panel shall not exceed the weekly remuneration of the complainant when last employed by the respondent, multiplied by the total number of weeks worked for the respondent divided by fifty-two, multiplied by two. (3) Subsection (2) applies to all complaints of discrimination based on political belief, including political belief complaints based on association as described in section 13 that (a) relate to employment in the casual division of the civil service as defined in the Civil Service Act, R.S.P.E.I. 1988, Cap. C-8 or contracts for service where the Government of Prince Edward Island or a Crown agency is a party to the contract; and (b) are filed with the Commission prior to June 1, 1999, including complaints which are unresolved as of the date of the coming into force of this Act. (4) Where a complaint to which subsection (2) applies is based upon a contract for service, the complainant s weekly remuneration for the purposes of subsection (2) is deemed to be the contract amount earned in the last twelve months of service, divided by fifty-two (5) Compensation ordered pursuant to subsection (2) is deemed to be comprehensive and exhaustive, and a Human Rights Panel shall make no other order in respect of any complaint to which subsection (2) applies. (6) A Human Rights Panel may make any order as to costs that it considers appropriate. (7) A Human Rights Panel shall serve a copy of its decision, including the findings of fact upon which the decision was based and the reasons for the decision, on the parties. Remedies Sought by the Appellant

14 Page: 14 [30] In considering this appeal, the Court must be careful in determining the remedies that were sought by the appellant from the Panel compared to the remedies he now seeks by way of his notice of appeal from the order of the applications judge. We note the appellant has expanded the scope of remedies he seeks at each stage as his case moved from the hearing before the Panel, to the judicial review, to this appeal and even to the argument on the appeal. In making his argument that the applications judge and now this court should order remedies he did not seek before the Panel, the appellant relies upon s. 56(1) of the Supreme Court Act, R.S.P.E.I Cap. S-10. This section provides that the court, on an appeal, may make any order or decision that could have been made by a court or tribunal. [31] This is an appeal from an order made by the applications judge pursuant to the provisions of Judicial Review Act R.S.P.E.I Cap. J-3. In reviewing the Panel s decision under the provisions of that legislation, the applications judge was restricted to a determination as to whether the Panel exercised his authority in accordance with the provisions of the Act as such authority relates to the rights and liabilities of the appellant and the respondent. The applications judge was required to review the decision of the Panel based on the record that was before the Panel which included the remedies or relief sought by the appellant from the Panel. See: ss.1(b) & (g) and s. 8 of the Judicial Review Act. On an appeal from that decision this court reviews the decision of the applications judge for any error in the exercise of his authority under the Judicial Review Act. Pursuant to s. 56(1) of the Supreme Court Act this court, should it find an error, is restricted to making only an order which could have been made by the applications judge under the Judicial Review Act. [32] The hearing before the Panel was held over a period of at least ten days. In accordance with the duty imposed upon it pursuant to the provisions of s. 8 of the Judicial Review Act, the Commission filed with the Trial Division, for purposes of the judicial review, a Record of the proceedings before the Panel. The oral evidence was transcribed, and it was available as part of the Record. Also, the documentary evidence introduced before the Panel was provided to the applications judge as part of the Record. The role of the applications judge was to review the Panel decision on the basis of this Record. [33] At the conclusion of the hearing before the Panel, the appellant and the respondent provided their summations in writing both of which also formed part of the Record. In his summation at para. 336 the appellant requested the Panel to make a number of orders. This paragraph reads as follows: V. ORDERS SOUGHT 336. If the Panel finds the Eastern School Board liable for the both [sic] wilful, reckless and reprehensible discriminatory acts committed in

15 Page: 15 bad faith against Noel Ayangma and for the foreseeable loses[sic] resulting from the same acts, the Panel must make the following orders: 1. The Eastern School Board is liable for the violation of Noel Ayangma s rights protected under the P.E.I. Human Rights Act. 2. The Panel orders that the processes used by the respondent, the Eastern School Board, in filling the impugned teaching and/or principalship positions during the relevant period of the complaint, wilfully and recklessly and in bad faith breached Noel Ayangma s right not to be discriminated against on various grounds of discrimination including race, colour, national/ethnic origin and age; contrary to section 6(1)(a) of the Human Rights Act. 3. The Eastern School Board is ordered to pay the complainant the full compensation and costs as outlined in his calculations, for the wilful, reprehensible, reckless and malicious discriminatory conduct and/or for the systemic discrimination against him as a Black person and for the discriminatory acts committed against him over the relevant period, on the basis of his race, colour, national/ethnic origin and age, contrary to section 6(1)(a) of the Human Rights Act, therefore putting him where he would have been but for the discrimination. This will include: (a) (b) the income which he would have received had he been successful in one of the impugned positions including the positions of teacher and/or in addition of only foreseeable promotions if any, as school principal from August 1997, to the date of this order minus his other earnings for the period he had worked for as explained in the Actuarial Expert Report and his calculations, including and not limited (1) past loss income (2) loss of further income until the age 65, (3) loss of pension benefits plus interest on the amount under para.5(a) from August of 1997 to the date of this order as per the p.6 of Actuarial Expert Report of the record and the [sic] his calculations of other related expenses and costs; general damages for hurt feelings in the amount of $5,000. for the loss of his right to freedom from discrimination as per the Court of Appeal decision in Ayangma. Ayangma v. Eastern School Board and Ricky Hood and the French School Board and

16 Page: 16 Gabriel Arsenault CA-April 5, 2000 at tab-7 of the Noel Ayangma s Post Hearing Summation. (NOTE: This BOLDED in the Summation) (c) simple interest on the amount of $5,000. from August, 1997 to the date of this order, calculated yearly on the full $5,000. at the applicable annualized interest rate. 4. The Eastern School Board is ordered to pay Noel Ayangma pre and post-judgement interests on all sum [sic] owing to him under this order effective August The Eastern School Board is ordered to provide Noel Ayangma within 30 days with a suitable letter of apology acknowledging that it has been found to have infringed his right to equal treatment without discrimination in respect of the impugned teaching/principalship positions and for its wrongful, reckless and reprehensible denial of employment and refusal to employ him. The letter should also include an assurance that the respondent will fully comply with the order of the Panel. 6. The Eastern School Board is also ordered to post this decision in each of its administrative offices and schools in the province, and also at the PEITF office and the Department of Education. 7. The Eastern School Board is also ordered to include the summary of this decision in an edition of its internal and external communications and made[sic] it available in the staff rooms of each school of the School Board, and the request that it be also included in the PEITF and the Department of Education s newsletters. 8. This Panel orders the Eastern School Board to undergo a cultural sensitivity training to be offered under the auspices of the P.E.I. Multicultural Council within 3 months of this order and that it be mandatory for the School Superintendents and Assistant Superintendents if any, School Principals and Vice-principals and other Eastern School Board staff including and not limited to the Director of Human Resources, Mr. Ricky Hood. It is further ordered that this training be fully paid by the Eastern School Board. 9. The Eastern School Board is ordered to request the PEITF to include cultural sensitivity as part of the topics for the next Teachers Convention to be held in Charlottetown and to follow its Equal Opportunity Policy and promote the hiring visible minority and Black teachers.

17 Page: The Eastern School Board is directed to develop recruitment policies or incorporate into existing policies, a provision acknowledging that experience is an important and the most important factor in the hiring of teachers and principals. 11. It is further ordered that the Eastern School Board pay Noel Ayangma s costs for preparation of the Panel hearing fixed at $5,000. and all other legal costs incurred by Noel Ayangma which are related to this matter either by way of Bullock and/or Sanderson Orders. 12. The Panel orders the Eastern School Board to also pay Noel Ayangma any compensation related to any promotion including the promotion as School Principal and for which he was qualified and for which there was a possibility he would had[sic] been promoted to therefore may have lost. 13. This Panel remained seized of this matter in order to deal with the issue associated with the implementation of this order and other legal costs. 15.[sic] The Panel orders that Noel Ayangma is now at liberty to pursue his Charter claim against the Eastern School Board and Ricky Hood as per para.11 of the decision of the Court of Appeal in this matter. 16. The Panel orders that all monies payable to Noel Ayangma shall be paid by the Respondent, the Eastern School Board within 90 days of the decision being filed with the Supreme Court of Prince Edward Island. [34] The appellant also provided the Panel with a written response to the respondent s written submission. At para. 92 of this response, he repeated his request of the Panel to order all the remedies set forth para. 336 of his initial submission. The Panel properly considered only those remedies which the appellant sought in his final submissions to the Panel. [35] When the appellant filed his cross-application for judicial review in the Trial Division, he requested the following relief in para. 1 which reads as follows: CROSS-APPLICATION 1. The cross-applicant makes cross-application for: (a) an Order upholding the Human Rights s finding of discrimination and the award of hurt feelings and humiliation made by the Human Rights Panel on

18 Page: 18 December 8, 2005 against the cross-respondent, the Eastern School Board; (b) (c) (d) an Order quashing the Human Rights Panel s decision regarding the cross-applicant s possibility to become school principal, and awarding damages for loss of promotional opportunity to the position of school principal; an Order varying the award of compensation for loss of income made by the Human Rights Panel on December 8, 2005; an Order pursuant to rule 56(1)(a)(c) making the applicant the rights, opportunities or privileges that he was denied, and that the Human Rights Panel ought to have made pursuant to section 28.4 of the Human Rights Act, putting the cross-applicant where he would have been but for the contravention, including and not limited to: (1) making a declaration to cease to the contravention complained of; (2) making a declaration to refrain in future from committing the same or similar contraventions; (3) providing an appropriate letter of apology within 15 days of the Order; (4) awarding compensation for past loss income from September 1997 to December 8, 2005; (5) making an order of reinstatement to the next available position of school teacher/principal or for the payment of a reasonable compensation for future loss; (6) awarding compensation for additional expenses incurred while working outside the province; (7) awarding compensation for lost [sic] of pension benefits; (8) awarding compensation for loss of income based on administrative allowances for principalship; (9) making an award of gross-up income tax liability; (10) costs. (e) an Order directing the Eastern School Board to undertake

19 Page: 19 additional restorative remedies to avoid future occurrences of the same or similar contravention such as: (1) post a summary decision in each of its administrative offices in the province, and also at the PEITF office and the Department of Education; (2) include the summary of the decision in an edition of its internal and external communications and make it available in the staff rooms of each school with a request that it be also included in the PEITF and the Department of Education s newsletters. (3) undergo a mandatory cultural sensitivity training that will include all school Board staff, principals and Vice-Principals, within 3 months of the order. [36] In his Notice of Appeal from the order of the applications judge, the appellant seeks the following relief: 1. The appeal is allowed with costs throughout, to be determined by the prothonotary. 2. This Court orders that the portion of the decision and order of the learned application judge concurring with the Panel s decision of December 8, 2005 (a) limiting the appellant s total loss of wages to $55,000, after reducing the amount of $13, from the total amount and (b) denying the appellant other remedies which were available to him under the Act, after the making a clear and substantial finding of discrimination on several grounds has been established, is set aside. 3. This Court declares that both the decisions of the Panel and the learned applicant[sic] are inconsistent with both the root principle of civil law of damages, and the jurisprudence in this area of the law. 4. This Court also declares based on both [sic] on the Panel s substantial and clear findings of discrimination made on December 8, 2005 and reconfirmed on judicial review on May 10, 2007, that the appellant is entitled to restitution integrum, putting him where he would have been in, but for the discriminatory conduct of the respondent, the Eastern School Board consistent with s.28.4(1)(b)(i), (ii), (iii), (iv) and (v) of the Act. 5. The Court orders the Eastern School Board, to compensate the appellant by paying him the sum of $376,095. which includes loss of wages and other expenses incurred by reason of the contravention of the Act, together with pre-judgment and postjudgment interest effective August 1997, consistent with s.28.4(1)(b)(iv) of the Act.

20 Page: The Court orders the Respondent, the Eastern School Board, to compensate the appellant by paying him additional amount for loss of wages of a year ($68,000.) calculated from the date of the hearing on September 14, 2006 together with pre-judgment and post-judgment interest effective August, 1997 consistent with s.28.4(1)(b)(iv) of the P.E.I. Human Rights Act. 7. This Court orders the Respondent, the Eastern School Board, to appoint the appellant to a teaching position and promote him to the next available principalship position within a year consistent with s.28.4(1)(b)(iii) and (v) of the P.E.I. Human Rights Act. 8. This Court orders the Respondent, the Eastern School Board, to issue a letter of apology to the appellant within 15 days of this Court s consistent with the both[sic] the Commission s practice and s.28.4(1)(b)(v) of the Act. 9. This Court orders the Respondent, the Eastern School Board, to cease the contravention complained of forthwith, consistent with the both[sic] the Commission s practice and s.28.4(1)(b)(i) of the P.E.I. Human Rights Act. 10. This Court orders the Respondent, the Eastern School Board, to refrain in future from committing the same or any similar contravention forthwith, consistent with the both[sic] the Commission s practice and s.28.4(1)(b)(ii) of the P.E.I. Human Rights Act. 11. This Court orders the Respondent, the Eastern School Board, to undergo sensitivity training within 3 months of this Court s decision, consistent with s.28.4(1)(b)(v) of the P.E.I. Human Rights Act. [37] On appeal the appellant filed his factum and an extensive written argument. The relief claimed in the latter document again differs from the relief sought not only by way of the notice of appeal, but as well from the Panel and the applications judge. For example, the first time the appellant sought relief by way of requesting an order that he be awarded a position of employment with the respondent was when he made his cross-application for judicial review. [38] The applications judge correctly pointed out in para. 36 of his reasons, that it is not the role of the reviewing judge to... rehear or retry... the complaint of discrimination filed by the appellant with the Commission. As we pointed out in paras. 30 and 31 of these reasons, the jurisdiction of the applications judge was limited to a review of the decision of the Panel in the context of the record before the Panel which included the remedies the appellant sought upon the conclusion of the hearing. The applications judge did not have jurisdiction to impose remedies the Panel was never requested to consider. It was well beyond the scope of the jurisdiction of the

21 Page: 21 applications judge in reviewing the panel s exercise of jurisdiction pursuant to the Judicial Review Act, to assess either the reasonableness or the correctness of the Panel s decision with respect to a remedy the Panel never considered, never decided and was never asked to decide. Similarly, it is not the role of this court to reassess the complaint based on the present circumstances of the appellant and based on a record which is different from the one which was before the Panel or the reviewing judge. On the other hand, the role of this Appeal Court is to review the decision of the applications judge on the basis of the record of the tribunal which was before him. [39] Therefore, on this appeal the court will consider only those remedies sought by the appellant before the Panel as these were the only remedies decided by the Panel and reviewed by the applications judge. The Review of the Panel s Decision on Monetary Remedies (i) Compensation for Loss of Income [40] Subsection 28.4(1)(b)(iv) of the Act is applicable to the appellant s claim for compensation for lost income. The wages or income lost, as well as the expenses incurred, must be by reason of the discrimination of the respondent. There must be a causal connection between the act of discrimination and the loss suffered by the complainant if the Panel is to make an award of compensation for loss of income or wages under this subsection. [41] The Panel concluded the appellant was entitled to lost wages at the rate he would have been paid as a teacher from September 1997 to January 1999 when the appellant obtained other full-time employment, subject to the duty on the appellant to mitigate his loss within this stated period of time. The Panel assessed the quantum of the compensation for lost wages in the foregoing period at $68, based on the salary the appellant would have earned had he been hired for a teaching position. However, the Panel further concluded the appellant did not take reasonable steps to mitigate his loss of income by way of obtaining income from substitute teaching assignments with the respondents. Accordingly, the Panel reduced the award of compensation for lost income by 20% of the amount awarded or by the sum of $13, Rounding the difference, the Panel awarded the appellant $55, as compensation for lost income. [42] The appellant asserts that the applications judge erred in failing to find that the Panel s decision, with respect to the quantum of the compensation for lost income, was unreasonable. The appeal in this respect is on two grounds, the first being that the applications judge should have found the Panel acted unreasonably in limiting the compensation to the time when the appellant obtained other employment. The second ground of appeal is that the applications judge should have found the Panel