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.