Three years after winning more than $300,000 in damages for age discrimination against UPEI, Professor Thomy Nilsson’s human rights award upheld
By Stephen Pate – Professor Thomy Nilsson had his $300,000 plus award against UPEI largely upheld on June 27th, 2013. Nilsson v UPEI PEI HRC 1352-05
The Panel, in their decision, reduced the award by 10% to partially allow the claim by UPEI lawyer Murray Murphy that Nilsson did not look for enough substitute employment after his forced retirement.
UPEI Professor Thomy Nilsson has his Human Rights award confirmed, with lawyer Karen Campbell (Guardian photo)
UPEI’s mandatory retirement policy was held to be discriminatory by the Human Rights Panel in June 2010. Nilsson et al v. UPEI HRC 1352-05
Since 2010, UPEI had vigorously applied to have the Human Rights decision against the university reversed and to avoid paying damages. When that failed, UPEI applied to the court to force the Panel to consider how hard Nilsson looked for work after his retirement.
The Human Rights Panel reduced Nilsson’s earlier $340,000 award to $307,000.
“This is a welcome end to a five-year fight,” said Wayne Peters in 2010, CAUT’s vice-president and past president of the UPEI Faculty Association. “It’s a victory for human rights.” That was 3 years ago.
The length of time that UPEI has litigated this matter is unconscionable. The UPEI Board lacks a common sense understanding of UPEI’s place in Canadian society and their duty to uphold the law on human rights.
As we reported in the companion story, things are so bad at UPEI that the Canadian Association of University Teachers has launched an investigation. UPEI Under Investigation By National Academic Body
Thomy Nilsson’s mandatory retirement
The University of Prince Edward Island had a mandatory policy that forced faculty to retire at age 65.
In 2005, Professor Nilsson, who had been forced to retire, filed a human rights discrimination complaint on the basis of age. He was joined in the complaint by Professors Richard Wills and Yogi Fell. In 2006, Professors Bartmann, Collins and O’Rourke filed similar complaints as they had also been forced to retire.
UPEI lawyer Murray Murphy at PEI Human Rights panel with co-counsel Patti Wheatley and the university’s comptroller, Tara Judson (Guardian Photo)
In 2010, the PEI Human Rights panel decided that Nilsson, Fells and Wills had been wrongfully terminated under the Human Rights Act. UPEI applied for a judicial review of the decision and soon after that the Panel awarded the three professors almost $800,000 in damages, with interest almost $1 million.
UPEI filed a judicial review of the award decision as well, complaining it would create a financial crisis. In 2011, the Human Rights Panel decided in favour of the three other professors which UPEI opposed in a judicial review as well.
Before the hearing with Justice Taylor of the PEI Supreme Court, UPEI dropped its claim that the discrimination decision was wrong and focused only on the size of the awards.
In 2012, Justice Taylor held that the financial awards to the professors were mainly correct but that some adjustments might be made for mitigation of the professors damages.
All the professors then made settlement agreements with UPEI, probably because they were tired of the legal battles, something the judge called litigation fatigue.
Only Professor Nilsson held out for the amount he originally won and in the current decision was largely vindicated, other than the time it took and his legal fees.
Mitigating losses
When claiming damages for lost income, the Claimant cannot wait for a damage award. They are obligated by law to find replacement income, or mitigate their damages.
The Panel found Nilsson had looked for alternative work but had not exhausted all his opportunities. They reduced Nilsson’s settlement by 10%.
New evidence excluded
The PEI Human Rights Panel refused to hear new evidence in the age discrimination case of Professor Nilsson against UPEI. Murphy argued that other professors had settled with UPEI for lesser amounts and tried to tie Nilsson’s award to those settlements.
The Panel held the law did not allow new evidence and the decision of Justice Taylor on February 3, 2012 was to decide if mitigation would cut the award. UPEI v Thompson & Ors PEI Supreme Court 2012 PESC-7
This was one of many attempts by UPEI to derail the Human Rights complaints of the professors. UPEI applied to the Court to stay the Human Rights Panel order in June 2010, which was denied and they were ordered to pay the money in February 2011 by Justice Taylor.
While other professors settled with UPEI, Nilsson held out until this last ruling. According to the Human Rights Panel he is also entitled to pre-judgment and post-judgement interest. The Human Rights Commission did not state the amount of judgment interest, but since 2005 when the complaint was filed the amount could be substantial.
See – UPEI must pay profs forced to retire
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