Vidya S. Maharaj v Immigration Division
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Rajmanlal Joseph,Ms. Leela Ramdeen,Mr. Harridath Maharaj |
| Judgment Date | 07 April 2017 |
| Docket Number | E.O.T. No. 0003 of 2014 |
| Court | Equal Opportunity Tribunal (Trinidad and Tobago) |
His Honour Mr. Rajmanlal Joseph — Judge/Chairman
Her Honour Ms. Leela Ramdeen—Lay Assessor
His Honour Mr. Harridath Maharaj — Lay Assessor
E.O.T. No. 0003 of 2014
IN THE EQUAL OPPORTUNITY TRIBUNAL
(Referred pursuant to S. 39(2) of the Equal Opportunity Act 2000 as amended by Act No. 5 of 2001)
Mr. A Mohammed instructed by Mrs. Afreen Mohammed Khan for the Complainant
Ms. Michelle Ottley Jones for the Respondent
On June 16, 2015 this Tribunal gave judgment in default of defence in favour of the Complainant herein. On October 20, 2015 the Tribunal heard evidence on the assessment of damages. In this regard the Complainant relied on three (3) witness statements; namely, those of the Complainant Vidya Maharaj, dated 20.08.2015, Ramzan Soodoo dated 20.08.2015 and Richard Ramdass dated 20.08.2015.
The Complainant was duly sworn and his witness statement and exhibits thereto was admitted as evidence. Thereafter counsel for the Respondent was invited to cross-examine this witness but declined to so do. In addition, the second witness Mr. Soodoo took the witness stand and was also sworn in and his witness statement was admitted as evidence. Counsel for the Respondent was again invited to cross-examine this witness but declined the invitation. The final witness for the Complainant Mr. Ramdass was duly sworn and his witness statement was admitted as evidence; counsel for the Respondent was invited to cross-examine this witness but declined to so do.
Counsel for the parties herein elected to do written submissions on damages, rather than to do oral submissions. Consequently, directions were given for the filing of these said submissions. Counsel for the Complainant filed his submissions on November 20, 2015 and Counsel for the Respondent filed her submissions on October 27, 2015.
In this matter the Complainant succeeded in his action against the Respondent for discriminating against him on the basis of origin, religion and ethnicity and by reason of victimisation.
Further, it is the pleaded case of the Complainant that the genesis of his complaint of discrimination began on March 19, 2008 when he returned to Trinidad and Tobago from Canada when the Immigration Officer stamped his passport “employment not permitted” even though he was and still is a citizen of the Republic of Trinidad and Tobago. The Complainant maintained that he drew this anomaly to the attending Immigration Officer but he became verbally abusive and hostile towards him.
The Complainant further pleaded that he attended the Immigration Office on numerous occasions in attempts to rectify the situation without success. He then issued instructions to his Attorney-at-Law to write a Pre-Action Protocol Letter to the Chief Immigration Officer and was invited to the Respondent's office but the stamp on his passport was not changed; and on September 10, 2013 he filed an application for judicial review. It was in this application that the Honourable Madam Justice Pemberton ordered the Respondent on October 11, 2013 to remove the stamp or modify it. It was only then that the Chief Immigration Officer struck out the word “NOT” and initialled same and also wrote the words “The bearer is a citizen of Trinidad and Tobago and is permitted to work” and the signature “Keith Sampson” appeared at the foot of the said statement.
The Complainant in his witness statement indicated that as a result of the restriction of “no employment permitted” indorsed on his passport he was forced to decline employment as a journalist at the T&T Mirror; in which he was offered a contract for 3 years at a monthly salary of $6,000.00 for the first year, thereafter increasing by 10% in the second year and third year. He calculated that he would have earned $72,000.00 in year one and $158,400.00 for the second and third years.
He further stated in his witness statement that he had a reputation for being a controversial writer…but when his immigration status became known throughout the media fraternity he became embarrassed and humiliated.
He also indicated in his said witness statement that he suffered a loss of income from his business “Unscathed Tattoo Studio” in which he generated an annual income of $580,609.00; and he suffered this loss for the period from March 2008 to September 2013 amounting to $3,241,733.58.
The Complainant's counsel in his written submissions requested the Tribunal to award General as well as Special damages. However, there is a distinction between these two, according to Lord Goddard in British Transport Commission v Gourley (1956) A.C. 185 at p. 206 he stated that: “… damages are always divided into two main parts. First, there is what is referred to as special damage, which has to be specially pleaded and
proved. This consist of out of pocket expenses and loss of earning incurred down to the date of trial, and is generally capable of substantially exact calculations. Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future”. Counsel for the Respondent on the other hand in her written submissions sought to persuade the Tribunal to award nominal damages, which was rejected.
In the instant matter the Complainant in his uncontroverted evidence indicated that he was embarrassed and humiliated by the act of the Immigration Officer when he stamped his passport “employment not permitted” and when he inquired about the justification for the officer placing this stamp on his passport; the officer became verbally abusive and hostile saying “go to immigration, ent Sat Maharaj is your father? you don't need work your father carried the government to court for the Trinity Cross and Radio License. Go let him fix it”
It is clear from the foregoing evidence that the Complainant was treated in a discriminatory manner — which is not contested by the Respondent. And he therefore must be compensated.
The jurisdiction of the Tribunal to make awards of compensation can be found in Section 41(4) of the Act wherein it states:
“The Tribunal shall have jurisdiction to make such declarations, orders and awards of compensation as it thinks fit”.
The contemporary approach to dealing with the remedy of compensating the victim of discriminatory acts by a discriminator is succinctly stated by the learned author Karon Monaghan in his textbook entitled “Equality Law”, Oxford University Press, 2007 at page 575 para. 143 where he states that: “Remedies for claims of...
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