Can an employer discriminate on the basis of a reputation for litigious behaviour?
Nöel Ayangma filed a complaint on Sept. 21, 1998, with the P.E.I. Human Rights Commission complaining that La Commission scholaire de langue français and/or Le Conseil scholaire unité administrative No. 5 (the board) had discriminated against him on the basis of race, age, ethnic/national origin and/or colour.
The complaint stemmed from the fact that, over a seven or eight-year period, Mr. Ayangma had been continually refused full-time employment by the board. It was his belief that he had not received a teaching or principal’s position because of his race, colour, ethnic/national origin and/or age.
Between 1991 and 1998, Mr. Ayangma applied for a number of full-time positions with the board. In almost every instance, Mr. Ayangma was interviewed for the positions for which he applied but was not successful in securing a position. He did, however, receive part-time contract positions.
Mr. Ayangma’s complaint was forwarded to the New Brunswick Human Rights Commission for investigation purposes because there was concern that a reasonable apprehension of bias could arise on the part of either Mr. Ayangma or the P.E.I. Human Rights Commission due to the past history between the two.
Carl White, a human rights officer with the New Brunswick commission, investigated the matter. Mr. White interviewed a number of witnesses and prepared a report that was forwarded to the P.E.I. commission in September 1999. Because this report drew no conclusions or made recommendations, the executive director of the P.E.I. commission delegated the matter to Janet Christian-Campbell for further consideration.
On July 13, 2000, after making further inquires, Ms. Christian-Campbell issued a notice of dismissal, dismissing Mr. Ayangma’s complaint on the basis that it was without merit. In reaching this conclusion, Ms. Christian-Campbell took into consideration the report prepared by Mr. White.
Mr. White had spoken to a number of individuals, several of whom were suggested by Mr. Ayangma. All of the individuals stated that they had no basis to conclude that Mr. Ayangma’s failure to secure a full-time position with the board was the result of racial discrimination. One of the individuals, a former co-worker of Mr. Ayangma, expressed the opinion that Mr. Ayangma’s failure to secure a position may have been related to his reputation for being litigious and outspoken. This same reasoning was put forward by a former chairperson of the board’s parents committee, who opined that Mr. Ayangma was not successful in competitions due to his reputation for filing lawsuits and being difficult to deal with.
The board also advised the commission of a poor reference received from Mr. Ayangma’s former principal at a high school. The reference raised concerns about Mr. Ayangma’s teaching style and class management which was very authoritarian. Mr. Ayangma was characterized as very strong-willed and unable to take criticism well.
In addition to considering the opinions of the various people who knew Mr. Ayangma, Ms. Christian-Campbell took into account the fact that, between 1991 and 1998, two to six per cent of the board’s employees were visible minorities. According to Statistics Canada, visible minorities made up only 1 per cent of the total population of P.E.I. (based on the 1996 census).
Upon receipt of Ms. Christian-Campbell’s notice of dismissal, Mr. Ayangma wrote to the chairperson of the commission, requesting that the decision be reviewed. Upon review, the chairperson rendered his decision, concurring with the decision of Ms. Christian-Campbell dismissing the complaint. Mr. Ayangma then sought judicial review of the chairperson’s decision.
One of the issues before the Court was jurisdiction. Mr. Ayangma argued that the P.E.I. commission had no jurisdiction or had exceeded its jurisdiction in referring the complaint to the New Brunswick Human Rights Commission.
The commission argued that there is express statutory authority in the P.E.I. Human Rights Act for the executive director to delegate. This authority to delegate was lawfully exercised when the executive director delegated the investigation firstly to the New Brunswick Human Rights Commission and later to his delegate, Ms. Christian-Campbell. The Court agreed with the commission on this point.
The other issue before the Court was the chairperson’s decision itself. Mr. Ayangma argued that, in dismissing his complaint, the commission committed an error of law. The Court considered the fact that none of the people contacted by Mr. White were able to confirm the allegations of discrimination. None of the evidence supported the complaint of discrimination, but there was evidence of concerns about his teaching style and class management. Finally the Court placed much weight on the fact that two to six per cent of the employees of the board were visible minorities.
Based on the above facts, the Court held that the decision of the chairperson to dismiss the complaint was not unreasonable. The application for judicial review was dismissed.
For more information:
• Ayangma v. Prince Edward Island (Human Rights Commission), 2001 PESCTD 49.
The complaint stemmed from the fact that, over a seven or eight-year period, Mr. Ayangma had been continually refused full-time employment by the board. It was his belief that he had not received a teaching or principal’s position because of his race, colour, ethnic/national origin and/or age.
Between 1991 and 1998, Mr. Ayangma applied for a number of full-time positions with the board. In almost every instance, Mr. Ayangma was interviewed for the positions for which he applied but was not successful in securing a position. He did, however, receive part-time contract positions.
Mr. Ayangma’s complaint was forwarded to the New Brunswick Human Rights Commission for investigation purposes because there was concern that a reasonable apprehension of bias could arise on the part of either Mr. Ayangma or the P.E.I. Human Rights Commission due to the past history between the two.
Carl White, a human rights officer with the New Brunswick commission, investigated the matter. Mr. White interviewed a number of witnesses and prepared a report that was forwarded to the P.E.I. commission in September 1999. Because this report drew no conclusions or made recommendations, the executive director of the P.E.I. commission delegated the matter to Janet Christian-Campbell for further consideration.
On July 13, 2000, after making further inquires, Ms. Christian-Campbell issued a notice of dismissal, dismissing Mr. Ayangma’s complaint on the basis that it was without merit. In reaching this conclusion, Ms. Christian-Campbell took into consideration the report prepared by Mr. White.
Mr. White had spoken to a number of individuals, several of whom were suggested by Mr. Ayangma. All of the individuals stated that they had no basis to conclude that Mr. Ayangma’s failure to secure a full-time position with the board was the result of racial discrimination. One of the individuals, a former co-worker of Mr. Ayangma, expressed the opinion that Mr. Ayangma’s failure to secure a position may have been related to his reputation for being litigious and outspoken. This same reasoning was put forward by a former chairperson of the board’s parents committee, who opined that Mr. Ayangma was not successful in competitions due to his reputation for filing lawsuits and being difficult to deal with.
The board also advised the commission of a poor reference received from Mr. Ayangma’s former principal at a high school. The reference raised concerns about Mr. Ayangma’s teaching style and class management which was very authoritarian. Mr. Ayangma was characterized as very strong-willed and unable to take criticism well.
In addition to considering the opinions of the various people who knew Mr. Ayangma, Ms. Christian-Campbell took into account the fact that, between 1991 and 1998, two to six per cent of the board’s employees were visible minorities. According to Statistics Canada, visible minorities made up only 1 per cent of the total population of P.E.I. (based on the 1996 census).
Upon receipt of Ms. Christian-Campbell’s notice of dismissal, Mr. Ayangma wrote to the chairperson of the commission, requesting that the decision be reviewed. Upon review, the chairperson rendered his decision, concurring with the decision of Ms. Christian-Campbell dismissing the complaint. Mr. Ayangma then sought judicial review of the chairperson’s decision.
One of the issues before the Court was jurisdiction. Mr. Ayangma argued that the P.E.I. commission had no jurisdiction or had exceeded its jurisdiction in referring the complaint to the New Brunswick Human Rights Commission.
The commission argued that there is express statutory authority in the P.E.I. Human Rights Act for the executive director to delegate. This authority to delegate was lawfully exercised when the executive director delegated the investigation firstly to the New Brunswick Human Rights Commission and later to his delegate, Ms. Christian-Campbell. The Court agreed with the commission on this point.
The other issue before the Court was the chairperson’s decision itself. Mr. Ayangma argued that, in dismissing his complaint, the commission committed an error of law. The Court considered the fact that none of the people contacted by Mr. White were able to confirm the allegations of discrimination. None of the evidence supported the complaint of discrimination, but there was evidence of concerns about his teaching style and class management. Finally the Court placed much weight on the fact that two to six per cent of the employees of the board were visible minorities.
Based on the above facts, the Court held that the decision of the chairperson to dismiss the complaint was not unreasonable. The application for judicial review was dismissed.
For more information:
• Ayangma v. Prince Edward Island (Human Rights Commission), 2001 PESCTD 49.
