The price of human rights

Ryan Ross
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The following is the first in a three-part series on the P.E.I. Human Rights Commission.

CLICK HERE FOR PART 2, HUMAN RIGHTS COMMISSION HISTORY

CLICK HERE FOR PART 3, EVOLUTION OF HUMAN RIGHTS COMMISSIONS

A human rights case that lasted almost four years and involved allegations of racism by the French Language School Board cost Prince Edward Island taxpayers over a quarter of a million dollars.

And while both sides eventually settled, only the parties involved know how much money, if any, was part of that settlement.

The one certainty is that all the money involved — at least $260,000 — was public money.

The Guardian obtained the costs through requests to the Finance Department and the P.E.I. Human Rights Commission under the Freedom of Information and Privacy Protection Act (FOIPP).

Greg Howard, the P.E.I. Human Rights Commission’s executive director, said it’s disappointing when the commission goes through a process that can take years, including the expense of a full hearing, only to have the parties eventually settle.

“I wonder why that didn’t happen before. Sometimes it’s impossible but if it’s possible after a hearing why wasn’t it possible before?”

The case involved a complaint from Aritho Amfoubalela, a Congolese teacher whose allegations included that there was a conspiracy involving more than 40 people who wanted him removed from the classroom.

Here’s how the costs added up.

Most of the $228,386.50 spent to defend against the complaint came from legal fees paid through the taxpayer-funded provincial Self-Insurance and Risk Management Fund.

Those fees amounted to $205,382.75, from April 2008 up to August 2012, when The Guardian submitted the FOIPP request. Another $12,133.67 was listed under disbursements, along with $10,870.08 intaxes for the defence.

But legal fees weren’t the only costs related to the complaint. The Human Rights Commission paid $11,509.33 in per diems and travel expenses for the panel members. That amount included a $198 per diem for the commission chair and $141 per day for the commissioners.

A panel is convened to hear a human rights complaint when the commission’s executive director reports that the parties involved are unable to settle. It is made up of commission members who oversee the proceedings during a hearing and issue a ruling after reviewing the evidence, although they do so in a less formal environment than in the courts.

Another $1,571.12 paid for transcripts and the commission paid $3,600 for its legal counsel.

The biggest expense for the commission was $16,509.91 for a translation service that Howard said the French Language School Board requested.

All told, the commission spent $33,190.36 for the hearing. Howard said the cost of the translation played a big role in the higher than normal commission expense.

As for how the costs for the Amfoubalela case stack up against pervious P.E.I. human rights complaints, Howard said the commission spent almost $20,000 on hearings in 2011-2012, compared to about $5,600 the year before, not including per diems for the commissioners.

But when it comes to comparing the Amfoubalela complaint’s costs to lengthy cases in the past, Howard said it’s hard to do because the Human Rights Commission doesn’t operate the same way it used to.

Howard said the costs would have been even higher prior to 1998 when legislative changes instituted the commission panels for hearings. The commission used to have boards of inquiry made up of practising lawyers, and while they were independent adjudicators, they also charged for their services instead of receiving a per diem.

Howard said the hourly rate for a lawyer could be higher than the daily per diem rate for a commissioner.

“They don’t come cheap,” he said.

In P.E.I., taxpayers still pay the costs associated with a human rights complaint whether it’s the commission doing an investigation or commissioners getting paid a daily rate during a hearing.

Halifax lawyer Randy Kinghorne, who has worked on several human rights complaint cases in Nova Scotia, thinks a better way to handle complaints might be to send them to an arbitrator.

Although he wasn’t speaking to the specifics of the Amfoubalela case, Kinghorne said the parties involved in arbitration bear the costs and they wouldn’t want to spend the money if they don’t think it’s a viable case.

“You’ve got both sides with incentive to try and work out a resolution that is the best for all sides,” he said.

As part of his complaint, Amfoubalela sought more than $62,000 in lost wages, $50,000 in general damages for hurt feelings and reinstatement to a permanent position with the equivalent of six years experience.

The public will never know if the settlement involved compensation because any details of the agreement between the two parties are sealed under a confidentiality agreement.

Amfoubalela is back in the classroom as a teacher at Birchwood Intermediate School in Charlottetown and not with any of the French Language School Board’s schools.

Despite Amfoubalela’s case going through a lengthy, costly complaint process, Howard said he doesn’t know what the public interest would be in having the settlement details released.

“The fact is, there is an overriding public interest, in my view, in having parties resolve disputes as quickly as possible,” he said.

Amfoubalela filed the complaint in 2008, and after Howard determined the two sides couldn’t come to a settlement, it eventually made its way to the human rights panel hearing in October 2011.

The hearing was spread out over 10 days between October and December 2011, and the panel was waiting for final summations so it could deliver its ruling. But that didn’t happen because both sides agreed to the confidential settlement instead. The public will never know if the panel would have ruled there was discrimination involved.

Howard said the Amfoubalela complaint showed the value of early settlement, which is something the Human Rights Commission offers as an option in every case.

“Sometimes we’re successful and sometimes we’re not,” he said.

Noel Ayangma, who represented Amfoubalela as his agent during the hearing, said their side was ready to settle from the outset, but the respondent refused.

“They were totally closed,” Ayangma said.

Both sides did eventually settle and Ayangma said he thought it was because of the evidence presented during the hearing. He also said it was the respondent, and not Amfoubalela, that didn’t want the settlement details made public.

“We are prepared and ready. We can consent that it be public,” he said.

A spokeswoman for the province said no one was able to comment on any issues related to the settlement because of the confidentially agreement.

Ayangma did provide one detail about the settlement. He said the board gave Amfoubalela a written apology.

Along with Amfoubalela’s allegations, two other witnesses made some of their own during testimony at the hearing. They included a citizenship and immigration officer who said she stopped recommending immigrants move to the Évangéline region because of how widespread racism was in the area, including the open use of racial slurs.

During the hearing, Sarah Joncas testified most people in the community wouldn’t take a stand against racism, including some people who would say they didn’t want black people living there.

“It’s a community of extremes,” she said.

Roger Gallant is the Abram-Village community council chair, and while he said he didn’t follow the Amfoubalela complaint that closely, he didn’t put much stock in the allegations of widespread racism, even though the panel never delivered a ruling on the issue.

“It doesn’t matter where you live there’s always somebody who’s got something to say about something,” he said.

He gave the example of a family from Africa that moved to the Évangéline region and lived there for several years before they moved to Summerside. Several members of that family gave testimony during the hearing that refuted the allegations of widespread racism.

Gallant said even after the move the children wanted to keep going to École Évangéline and the mother kept working at a local fish plant.

“What does that tell you,” he said.

Wayne MacKay, a professor at the Schulich School of Law at Dalhousie University and a former executive director of the Nova Scotia Human Rights Commission, said human rights commissions have to strike a balance of fairness for both sides of a complaint.

Confidential settlements can sometimes work to the respondent’s advantage, but if a story is covered in the news it’s not always advantageous because the public won’t know what happened, MacKay said.

“Unfortunately we tend to presume guilt rather than innocence on these things,” he said.

In the case of a community that isn’t involved in the complaint, but has allegations made against it during testimony, MacKay said that adds a further complication. He said the community almost becomes a third party in the complaint but isn’t involved in the settlement.

That’s different than the respondents agreeing to a settlement because, as a party directly involved in the complaint, they become the authors of their own fate, MacKay said.

“If the allegations are more broad based than that then it does leave a bit of a not very good taste in the mouths of the broader community,” he said.

 

Editor’s note: The second part of this series will examine the 36-year history of the P.E.I. Human Rights Commission and its impact on Prince Edward Island. See Monday’s Guardian.

Organizations: Human Rights Commission, French Language School Board, Finance Department Birchwood Intermediate School Schulich School Dalhousie University

Geographic location: Prince Edward Island, Nova Scotia, Charlottetown Abrams-Village Africa Summerside

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Comments

Comments

Recent comments

  • human rights in pei is a joke
    November 19, 2012 - 22:22

    Rick Morin. And reproductive rights for women. 'nuff said. Joke of a province.

  • There is a far more expensive case
    November 19, 2012 - 13:22

    If this case sounds expensive, I cannot imagine the cost of the discrimination case against the university that has gone on and on for years with appeal after appeal. Since the university is a public institution and taxpayers fund it as well, we should be informed how much the lawyer made with that case. There are also cases of mediation that are dragged on for months while the lawyer gets paid even if they do not want to mediate. Nothing and no wrongdoing can ever be reported as victims have to sign a silencing contract at the very beginning. This is wrong. This allows for human rights violations to occur and victims to be re-victimized by another gov't office, in this case, a HRC.

  • Yikes
    November 18, 2012 - 18:08

    Ayangma said it, so it must be true.

  • Mister
    November 18, 2012 - 17:51

    I agree with 'concerned taxpayer' to some extend, however I DO NOT THINK THE PANEL MEMBERS AT $141 AND $ 196 PER MEETING WERE IN ANY HURRY TO CONCLUDE THE MATTER EITHER. A BOONDOGGLE JUST LIKE IRAC

  • Concerned Taxpayer
    November 18, 2012 - 09:31

    From reading this story it appears this man had a case and the school board knew very well they were in the wrong, but instead they played the lawyer game and dragged this issue on and on, than settled with some non disclosure of information. This was taxpayers money and we should know the facts, it appears the school board was wrong, if so owe up to it, give the man what he deserves and stop this speculation as to what may or may not have happened. It is actions such as these that piss alot of people off. Anyone with any common sense can see the lawyers games played here, they filled their pockets at $250.00-$300.00 an hour,knowing very well someone was at fault here, than after so much time of letter writing, discussions, phone calls, they decided to settle but not before agreeing not to tell us just what was agreed to. Where in the hell is the law society lately, this is another coverup to protect the so call smart educated individuals. Bottom line , they discriminated against this man and than hoped to drag it on until he quit. If in fact he was discriminated against, followed by this unreasonable costs, than heads should roll. Lets see the so called Letter of Apology!!!!!!! I have seen some of them in previous Human Rights decisions and believe me they are a piece of work, not much substance to them because they are forced to write them. In order to stop all the speculation release the full facts, letter of apology and settlement if any, than we the taxpayers can decide who did what and why.

  • Sensible Shoes
    November 17, 2012 - 22:30

    The posters on here are unbelievable. This country's constitution enables people the have the right to bring matters of discrimation to a Human Rights body. I would rather live in a country that offers a body that will determine whether or not human rights were violated than in one that has no regard for human rights. On the other hand, I also agree that the cost of this one particular matter is way beyond reasonable. Perhaps the lawyers purposely drew it all out as a cash cow, or the intent of one of the parties was to wear the other down financially. Either way, keep the Human Rights Commission, but ensure that there is a watchdog that will ensure the taxpayers who fund it are not being gouged.

  • Donnie
    November 17, 2012 - 20:10

    They line their buddies pockets with PNP money, and you say nothing. They waste a million dollars on dirt mounds in Borden, and you say nothing. They blow sixteen million on a totally unnecessary road, and you say nothing. Spend money on preserving the sanctity of the Canadian Charter of Rights and Freedoms, this, you get miffed about.....

    • actually
      November 18, 2012 - 11:44

      Donnie - I think you'll find it was $2.8m for the Borden Hills and the AutoBonshaw will be $20m or more by the time it's finished...........time to get rid of all these hangers on and start from scratch with fewer "elected representatives" and bureaucrats and make more of them personally accountable for their actions. This case should never had taken so long or so much money - the fact that he's a successful teacher in Charlottetown (if he wasn't any good, he'd be gone by now) just proves that it was discrimination. End of.

    • Problems with HRC
      November 19, 2012 - 12:51

      I agree that there has been a huge group of greedy people who have wasted and taken tax money but there is a HRC office which is a government office and influenced by the provincial government. The minister over this office is surrounded in controversy. There have been problems with the HRC and in addition they have the benefit of not having transparency as they can say everything is confidential and make people sign legal gag contracts. I believe strongly that people's human rights should never be violated and that is why this office needs to close or have an ombudsman as a watchdog over them. Also, there needs to be 1 lawyer in that office. They do as much work in a month as a normal lawyer would do in a year. Typical government bureaucrats- but the taxpayers can no longer afford such waste. Any government office that has a legal right to non transparency, and the legal right has been made by the office through legal silencing contracts with victims, shouts VIOLATIONS . I personally feel this HRC offfice needs to be investigated for wrongdoing and violating victim's rights.

  • John W.A.Curtis
    November 17, 2012 - 19:47

    P.E.I. has no Provincial Ombudsman to investigate schools, hospitals or police. The Supreme Court of canada set the guidelines to sue police for Charter violations even if the police at in good faith. police can be sued for charter violations so can schools and hospitals. we need a provincial ombudsman not a Human rights commission.

    • merge the maritimes
      November 18, 2012 - 10:38

      How about a single Atlantic Ombudsman or Maritime Ombudsman? All it would take is similar legislation in the other 2-3 provinces and a funding agreement. Makes sense to me. Just not Robert Ghiz.

    • Ombudsman needed
      November 19, 2012 - 13:38

      I strongly agree with Mr. Curtis!! We only have a facad or pretentious HRC office that claim they will protect human rights while being non-transparent and unaccountable. PEI is the ONLY province in Canada that does NOT have an ombudsman. If there is a problem or complaint regarding the HRC, there is NO ONE to report it to. The HRC is a government office who reports to the provincial government and if there is a complaint against the HRC, one makes the complaint to the minister and the minister sends the complaint back to HRC. The HRC gets to decide if they violated the rights. So, the HRC police themselves and they are the only HRC in Canada that has been afforded such power. If there was an ombudsman, then any gov;t agency, including the HRC would have to be transparent and the complaints would be investigated by a non-bias sector- the ombudsman. One of the main reasons why Ombudsman were put in place was due to complaints against HRC for further violating the rights of the people. All provinces, except PEI, agreed to have a watchdog and non-biased investigator to investigate complaints so there would be no violations of human rights. PEI refused. So, while we have a non-transparent, secretive government agency protecting 'the human rights' of Islanders where they can never be investigated and will police themselves, Islanders do NOT have a real and valid HRC protecting the rights of anyone. We have seen many examples of how the goverrnment investigates complaints against themselves and the results. It would be like asking the transportation minister to investigate plan B; or ask the finance minister to investigate complaints regarding the HST; or asking the provincial government to investigate pnp complaints. Enough said. PEI needs an ombudsman!

  • Pius from BC
    November 17, 2012 - 17:38

    Did the PEI taxpayer have to ante up money for both the French Language School Board and the Human Rights Commission??? Shouldn't the defendant have to pay for themselves ?

  • merge the maritimes
    November 17, 2012 - 16:51

    If political union of the 3 Maritime provinces won't happen for a few more years, at least we could start merging duplicate services amongst these provinces. PEI, NB and NS do not need, nor can they support, separate human rights commissions. If we can have a single Atlantic Lottery Corporation, we can have a single Atlantic Human Rights Commission. Same for all the other triplicated boards, commissions, agencies, etc. around this region. Time to start asking the hard questions of our political leaders.

  • who knows?
    November 17, 2012 - 15:49

    I doubt we can say there is no racism in any community by getting another family of color to relay that they have not experienced it. I am happy they have not. Everyones experiences are not the same in life however. Actually, the idea of having a family called to testify to that kind of creeps me out on some level.For example. Its like if one sibling were saying she was molested or whatever the case may be by a family friend and another sibling said she was not. They both had different experiences. Why does a perpetrator choose one and not the other? Neither one is lying. They were treated differently for whatever reasons. So would we get the unmolested female up to say the perpetrator never hurt her, so we then assume it never happened to a sibling? Just does not make sense to me.

  • winston
    November 17, 2012 - 15:15

    If I am asked to foot the bill, I damn well better have the right to know what the bill is for and the outcome of the expense. It should go without saying that any resolution of a case, paid for by the taxpayers, should be public information, --- it would also tell us if there had been a real need for such a large expense. It is a sad state of affairs to have it any other way, - hope Ollive will look into that, without lawyers breathing down her neck. I have a feeling she does not owe any of the commissioners for party contributions.

  • mac
    November 17, 2012 - 15:05

    There is a lot of irony in the case regardig the French school board.Here we are in our Canadian democracy being accused by people coming from places where human right are really violated. Further more we have the French minority (the accused) on PEI cashing in on the opportunity to, because they can, by demanding translation. It seems that the frosting on the cake for the taxpayers is that they are not allowed to know how this all came out at the end, other than they paid for it all. I think we should take this case to the Human Rights Commission, - our rights as supporters of this show, are being violated in that we cannot see the results of our exspense. It is a ludicrous situation and it must be remedied tut suit, ----

  • ritsa
    November 17, 2012 - 14:50

    Are we nuts or what?? Why is it that something that sounds reasonable and doable turns into such an expensive mess. Some restrictions must be put on the complainant that can cause such expense, as well as on the lawyers in the process. Of course the best thing would be to do away with it, but there would be a schrech that could be heard to Tignish from the Advisory Council on the Status of Women (I am sure they have statisics that women are mnost often dne badly by) and the 'do good law agencies', (somebody just the order of Canada for that one)- what ever they are called. Most are in the same frame of mind that 'let's take the public for a ride', as membership on the Commission seems to overlap that of these other orgnizations. A nice little click there. Again the old saying, some people are doing well, by doing 'good'.

  • kim
    November 17, 2012 - 14:32

    Ghiz is looking to cut, - well there is a place, this whole human rights idea has run amock. With absolutely no cost or rammifications to the complainer,it is no wonder they run to the human right commission, and we, taxpayers, foot the bills for this stupidity. Is there a klwa that says we have to have this curcus or could we just close it down and forget about?

  • alfredd
    November 17, 2012 - 14:28

    At almost 200 bucks a meeting for the chair, no wonder she scratched and clawed to have the change made so she could hang in there, --- what a cottage industri, --- just like IRAC. High time this is looked at in an other light, -- who is on, and why? Get rid of all these sucklers, and find a runh this efficiently. The translation demand was just to give some 'friend of the community' a juicy bone to gnaw. ---Everybody is a charlatan thesse days.

  • Garth Staples
    November 17, 2012 - 11:41

    The taxpayer gets 'lifted' again. The Board was spending taxpayers dollars without any control. That's often the way with public institutions on .on PEI. No management skills when it comes to these kinds of problems.

  • Just The Facts
    November 17, 2012 - 11:26

    In this particular case, where the public's money is being spent by both the Commission and the French Language School Board, a confidentiality agreement is inexcusable and should be made unlawful. It's time to amend the Human Rights Act.

  • don
    November 17, 2012 - 11:25

    this was the trouble of the french school board so why do the English have to pay the bill? considering they only have 4.0% of the population and English has 93.8% but every time they want something the English MUST pass it over. i think it is time they start looking after there screw up.

  • Sylvia
    November 17, 2012 - 10:49

    If this teacher is not happy with life in P.E.I. I would suggest he leave and go somewhere else. It's no wonder P.E.I. is in such financial trouble.

    • harumph
      November 18, 2012 - 11:30

      yes sylvia. people shouldn't complain when they are wronged on PEI, they should just leave