Damages Awarded to Non-Parties
There are a series of cases, all from Nova Scotia, which have awarded damages to a non-complainant. One might well question the fairness of such a remedy when there has been no case pleaded for such relief. None of these cases has been judicially reviewed on this issue.
The authority for such a proposition has rested on a rather liberal interpretation of the statute, Section 34(8) of which reads as follows:
A board of inquiry may order any party who has contravened this Act to do any act or thing that constitutes full compliance with the Act and to rectify any injury caused to any person or class of persons or to make compensation therefor.
The first of these three cases is a 2003 case, Johnson v Halifax Regional Police Service. The complainant, Kirk Johnson was driving in a vehicle owned by himself and driven by his cousin, Earl Fraser. Both men were black. Johnson was a well-known international boxer, originally from Nova Scotia, and then living in Texas, where the vehicle was registered. A peace officer stopped the car and was not satisfied with the documentation provided, relating to insurance and registration. A ticket was issued to the driver and the car was towed. In fact, the documentation was proper. The car was released the following day.
Johnson filed a human rights complaint, alleging racial profiling. The Board of Inquiry found for the complainant. It awarded him $10,000 as damages for humiliation and also out of pocket costs to travel back and forth from Texas for the process.
To the point in issue, it also awarded his cousin, the driver, a person who was not a party to the case, the sum of $1,000. There was no legal analysis applied on this issue, but rather the Board simply stated:
Mr. Wood reminded me that I have authority under the Act to make an award to a person who is not a complainant. I award $1,000 to Earl Fraser payable jointly and severally by both respondents. Mr. Fraser went out for a quiet Sunday drive and found his life quite altered through no fault of his own. Constable Sanford was civil to Mr. Fraser throughout the night in question but his action still had the effect of dragging him into a long proceeding over which he had no control. He for some time thought he might have to pay over $1,000 in fines, and getting the tickets cancelled turned out not to be a straightforward matter. I accept his evidence that the tickets were only cancelled because a police officer who had heard of his difficulties approached him off duty and took it upon himself to help. I find Mr. Fraser experienced the effects of this discriminatory act, albeit to a much lesser extent than Mr. Johnson, and is entitled to an award on this basis.
This was followed by a 2006 decision in Willow v Halifax Regional School Board. The complainant was a female physical education teacher. She had asked a female student to assist her in moving certain equipment into a storage room. Once this task had been completed, they stopped to wash their hands in the washroom within the storage room. As they left this room, two male teachers entered. One of these teachers concluded that the teacher and the student had been engaged in a form of sexual encounter. He reported this to the principal who proceeded, without speaking to either the teacher or the student, to contact the police. The police questioned the two females and concluded that there was no grounds of criminal conduct.
It was found that the principal continued to treat the complainant with suspicion. The Board also determined that the male teacher who had reported this event, had believed the complainant was a lesbian and a predator.
Ms. Willow was awarded $25,000 in damages.
Again, to the point in issue, the Board also awarded the student $2,500 and a further $1,000 to the student’s mother to compensate her for travel expenses. Neither of these two were complainants. There was no legal analysis, but rather the decision relied on the Johnson case for authority for this award.
These two decisions were referenced in the Y.Z. v Halifax Regional Development case. The spouse of the complainant, again a non-party, was allowed $25,000 for damages. This case did reference the Supreme Court of Canada decision in Moore v BC., one which not deal with this specific issue, but rather supervisory systemic remedies. 1
I have also considered, with respect to remedies with respect to non-complainants, the decision of the Supreme Court Canada in Moore v. BC [2012] 3 SCR 360, where the Court commented at paragraphs 55-70 on remedies that are too “remote” from the scope of a complaint. In that case the remedies in question expanded beyond strictly compensatory and remedial issues for the complainant into the realm of orders and supervisory remedies which would be more appropriately considered in a complaint of “systemic discrimination.” In my opinion the Moore decision, which postdates Johnson and Willow, does not alter my ability to award compensation in these circumstances to a non-complainant.
No other jurisdictions in Canada have allowed such remedies to non-parties. None of these cases referenced above have been judicially reviewed on this issue.
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