Thursday, April 09, 2009

It pays to have hurt feelings when you complain to the HRC's

Yesterday, I brought to your attention the case of a gay man by the name of John Rooney who laid a complaint at the Quebec Human Rights Commission because he claimed that concierge Jules Bertiboni had called him a tapette (fag) when he phoned about apartment for rent.

I want to bring to your attention what the Human Rights Tribunal had to say about moral and punitive damages. I would like to underscore that in the Bertiboni case, there was no witness to the conversation, and the defendant had no memory of it, and insisted that he never refuses to rent to homosexuals. Essentially, the Tribunal took Rooney’s word over Bertiboni.

[ I’d like to add as a caveat that this is my translation, and I don’t necessarily know the correct legal terminology in English, so please double check if necessary! ]

[33] Moral prejudice includes notably the inconveniences, the loss of enjoyment of life and psychological damage. Moral damages seeks to compensate attacks on human dignity, the humiliation and the contempt of which the person was the object. The attribution of a sum of money cannot retroactively put the victim in a situation where he did not suffer discrimination, but it serves to attenuate the psychological discomfort that he felt.

[34] One of the most eloquent presentations on « moral damages », which has been recalled many times by the Tribunal, is that of Madame Justice Pierrette Rayle of the Appeals Court in the Malhab v. Metromedia CMR Montreal, inc, and which it behooves us to cite once again:

[62] If it is less palpable, it is not any less real

Moral or extrapatrimonial damage is often difficult to put a figure on in an exact or even approximative manner.


[63] That moral prejudice is more difficult to grasp does not diminish in anything the injury that it constitutes. I would even go so far as to say that because it is not apparent, moral prejudice is more pernicious. It affects the human person in his innermost being, in the ramifications of its intimate nature et destroys the serenity to which he aspires, it attacks his dignity and leaves the individual shaken, alone to combat the effects of a harm that he carries within him, instead of it being done to his person or his goods.

[35] Even though it is difficult to grasp, moral prejudice must nevertheless be compensated to repair the prejudice to which one was subjected to.

[36] To succeed in correctly evaluating moral prejudice, one must take into account the circumstances in which the reproved act took place, notably the vulnerability of the victim, the factual and objective circumstances in which the reproved act took place.

[37] In regards to the vulnerability of the victim, the authors Baudoin and Deslauriers write :

“ The principle of integral reparation requires also that the author of the fault must [uncertain translation!]take[/uncertain] the victim in the state the he was in at he moment the damage was caused. […] According to whether he injures a millionaire or an unemployed person, the situation for him risks being very different. Equally, because of the particular fragility of health of the victim, the consequences of the condemned act will be much greater than it would have been on a normal person.”

[38] As to the punitive damages, they seek to censure an intentional injury, defined in the following manner by the Supreme Court :

“ There is an illicit and intentional injury in the sense of Article 49 of the Charter when the author of the illicit injury is in a state of mind that denotes a desire or a will to cause consequences from his behaviour or again when he is knowledgeable of the immediate, natural or at least extremely probably consequences that his behaviour would create.”

[Translation of the translation: there is a intentional injury when the author *wants* to cause damage, or when he behaves in a way when he would know the immediate, natural or very probably consequences of his behaviour, and they damage the victim.]

In addition,”it is well established that punitive damages are destined to express society’s reprobation towards unacceptable behaviour and to play a dissuasive role in order to prevent such behaviour in the future, by both the individual at fault and other members of society in general.

Now of course losing enjoyment of one’s life is a legitimate moral damage. But isn’t there a point at which a person should just suck it up? Shouldn't that be a principal of justice?

And doesn’t moral damages for “pain and suffering” leave the process open to abuse? People can exaggerate their feelings or retroactively interpret their state of mind to make it seem worse than it was. (e.g I was repressing the bitterness caused by this man! I didn't see the repression then, but I do now!)

Who can cross-examine feelings, when feelings don’t always rise to the surface?

I don’t wish to say that Mr. Rooney was dishonest about his feelings, but someone else may not be so sincere.

What I also note that is there seems to be more emphasis placed on the fact that his feelings were hurt than the fact that he denied a future apartment. Isn't being denied housing a greater evil than being called a name?