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EQUAL OPPORTUNTY ACT, 2000
EOC/0019/2009
DEVANT MAHARAJ COMPLAINANT
and
THE MINISTRY OF COMMUNITY DEVELOPMENT RESPONDENT
NOTIFICATION OF DECISION OF THE COMMISSIONS FINDINGS
INTRODUCTION
1. The Equal Opportunity Act 2000 (the Act) provides for the prohibition andelimination of discriminatory behaviour. Part IV of the Act created an Equal
Opportunity Commission (the EOC) with the responsibility of receiving and
investigating complaints of discrimination pursuant to S. 27 of the Act.
2. The complainant is a cultural activists of East Indian descent and a known opposeto the Peoples National Movement the party which formed the government for
the period of this complaint 2003 -2007. The respondent is the Ministry of
Community Development (before May 2010 this Ministry was referred to as
Ministry of Community Development, Culture and Gender Affairs) who was at all
material times responsible for the disbursement scholarships to nationals of
Trinidad and Tobago. The complaint is that the Ministry in disbursing over fifty
millions dollars (50,000,000.00) in scholarship grants failed to advertise the
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existence of the fund thus denying the complainant the opportunity to apply for a
scholarship.
THE COMPLAINT
3. By letter dated 3rd December 2009 the Complainant Mr Devant Maharajsubmitted a complaint to the Equal Opportunity Commission (EOC) alleging
discrimination against the Ministry of Community Development, Culture and
Gender Affairs (as it was then known and hereafter referred to as the Ministry).
These allegations concerned what he referred to as the secret scholarships being
awarded by the Ministry during the years 2003-2007. He complained that he was
denied the opportunity of applying for a scholarship by the Ministry contrary to S.
5 and 17 of the Act during this period.
4. The Complainant alleged that the Ministry, during the period in question, failed to publicly advertise the availability of its educational scholarships as well as the
criteria used to award such grants. It was further alleged that the award of the
grants was done without any apparent transparency and that the scholarships were
not granted based on merit or necessity but rather were given to persons who had
some sort of political connection to the ruling administration, i.e. the Peoples
National Movement (PNM).
5. The Complainant submitted a bundle of documents obtained from thesubsequently requested several documents from the Ministry under the authority
of the Freedom of Information Act 1999 (FOIA) regarding those persons who
were awarded grants by the Ministry during the years in question. He claimed that
based on the information he received he observed a pattern of discrimination by
the Ministry relating to the granting of financial assistance to persons seeking to
gain further education.
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6. The Complainant indicated that, even though he wanted to further his educationhe was never allowed an equal opportunity to apply for Ministry funding and as
such he requested that the Commission review the Ministrys Financial Assistance
Programme to determine if there was any evidence of discrimination.
7. His complaint is that he has been treated unequally with regard to the Ministrys provision of goods, facilities and services, pursuant to s.17 of the Equal
Opportunity Act 2000, without any proper justification.
STATUTORY FRAMEWORK
8. The material provisions of the Act are as follows:-5. For the purposes of this Act, a person (the discriminator) discriminatesagainst another person (the aggrieved person) on the grounds of status if, byreason of
(a) the status of the aggrieved person;
(b) a characteristic that appertains generally to persons of the status of theaggrieved person; or
(c) a characteristic that is generally imputed to persons of the status of theaggrieved person,
the discriminator treats the aggrieved person, in circumstances that are the sameor are not materially different, less favourably than the discriminator treatsanother person of a different status.
Discrimination re: provision of goods and services
17. (1) Any person concerned with the provision (whether or not for payment)of goods, facilities and services to the public or a section of the public shall notdiscriminate against a person who seeks to obtain those goods, facilities andservices
(a) by refusing to supply the goods, provide the facilities or perform the services;
(b) in the terms on which he supplies the goods, provides the facilities or performsthe services; or
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(c) in the manner in which he supplies the goods, provides the facilities orperforms the services.
17. (2) The following are examples of the facilities and services mentioned insubsection (1):
(a) access to and use of any place which members of the public or a section of thepublic are permitted to enter;
(b) accommodation in a hotel, guest house or other similar establishment;
(c) facilities by way of banking or insurance or for grants, loans, credit or finance;
(d) facilities for entertainment, recreation or refreshment;
(e) facilities for transport or travel;
(f) the services of any profession or trade, or any statutory authority or municipalauthority.
(3) Nothing in this section applies to the provision of services the nature of whichis such that they can only be provided to members of one sex.
9. The best guidance for how Commissions such as the EOC should function is thatgiven by Neill L.J. in Kingv. Great Britain-ChinaCentre [1992] I.C.R. 516,
528529. After reviewing the relevant authorities, he said: From these several
authorities it is possible, I think, to extract the following principles and
guidance.
(1)It is for the applicant who complains of racial discrimination tomake out his or her case. Thus if the applicant does not
prove the case on the balance of probabilities he or she will
fail.
(2)It is important to bear in mind that it is unusual to find directevidence of racial discrimination. Few employers will be
prepared to admit such discrimination even to themselves. In
some cases the discrimination will not be ill-intentioned but
merely based on an assumption that he or she would not have
fitted in.
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(3)The outcome of the case will therefore usually depend on whatinferences it is proper to draw from the primary facts found by
the tribunal. These inferences can include, in appropriatecases, any inferences that it is just and equitable to draw in
accordance with section 65(2)(b) of the Act of 1976 from an
evasive or equivocal reply to a questionnaire.
(4)Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly
not on racial grounds, a finding of discrimination and a
finding of a difference in race will often point to the possibility
of racial discrimination. In such circumstances the tribunal
will look to the employer for an explanation. If no explanation
is then put forward or if the tribunal considers the explanation
to be inadequate or unsatisfactory it will be legitimate for the
tribunal to infer that the discrimination was on racial grounds.
This is not a matter of law but, as May L.J. put it in North West
Thames Regional Health Authority v. Noone [1988] I.C.R.
813 , 822, almost common sense.
(5) It is unnecessary and unhelpful to introduce the concept of ashifting evidential burden of proof. At the conclusion of all
the evidence the tribunal should make findings as to the
primary facts and draw such inferences as they consider proper
from those facts. They should then reach a conclusion on the
balance of probabilities, bearing in mind the difficulties
which face a person who complains of unlawful discrimination
and the fact that it is for the complainant to prove his or her
case.
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EVIDENCE SUBMITTED BY THE COMPLAINANT
10.The Complainant submitted a list of scholarship awardees which he obtained fromthe Ministry of Community Development pursuant to a request made under the
Freedom of Information Act 2000. This list is exhibited at Appendix A. It shows
that approximately 925 awards of scholarships were made totalling
$50,863,950.38 TT Dollars during the period 2003 to 2007 as follows:-
646 persons received funding 1 time
203 persons received funding 2 times
59 persons received funding 3 times
10 persons received funding 4 times
1 person received funding 5 times
11.The Commission reviewed the complaint as lodged by the Complainant togetherwith the supporting evidence and decided that an arguable case existed which
warranted an investigation into the allegations made by the Complainant. This
decision was based on the fact that the supporting evidence as supplied by the
complainant purported to show that approximately nine hundred (900) persons
were granted scholarships without the existence of the scholarships ever being
publicly advertised. This the Commission found to be remarkable.
INVESTIGATION CONDUCTED BY THE COMMISSION
12.Pursuant to the information supplied by the complainant in this matter thecommission decided that an investigation should be conducted in relation to theallegation of discrimination made by the complainant. Set out below is a table
showing chronologically how this investigation progressed. It outlines the
information requested by the Commission and the information actually provided
by the Respondent.
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TABLE SHOWING CHRONOLOGICAL PROGRESSION OF MATTER
Date Action Taken Purpose of Contact Comments
April 23, 2010 Notice requesting information wassent to Ministry of Culture,Community and Gender Affairsattention the Permanent SecretaryMrs. Angela Jack for responsewithin 28 days
See Appendix B Part 1 forinformation sought.
The Ministry ofCommunityDevelopment,Culture and GenderAffairs was thenamed respondent inthis complaint andfor all intents and purposes wereresponsible for
disbursingscholarships
No Informationprovided within timeperiod
May 28, 2010 Second notice for response withinadditional 28 days
Same as above
June 14 2010 Letter from respondent providinginformation
Some of the requestedinformation wasprovidedSee Appendix B Part
II for information not provided and therelevant response by
the respondentAugust 27th 2010 Notice requesting additional
information from the Respondentwithin 14 days. See Appendix CPart I for information sought
The Ministry ofCommunityDevelopment wascontacted to providethe relevantinformation as theMinistry ofCommunityDevelopment,Culture and GenderAffairs was now re-named to Ministry of
CommunityDevelopment
Some of the requestedinformation was provided by letterdated 1st October2010. See AppendixC Part II forinformation not provided and therelevant response bythe respondent
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Information provided by the Ministry in letter dated June 14th
13.In this response the Ministry denied the allegations made by the Complainant thatthey failed to publicly advertise the availability of its educational grants and
sought to explain the inception of the Community Development Scholarship
Programme (the CSDP) and the process used to advertise and select grantees.
According to the Ministry, a Technical Team was established within the Ministry
to determine how to satisfy a spate of requests from various Community Based
Organisations (CBOs) and Non-Governmental Organisations (NGOs) so that the
youth of the community could be exposed to training and development in both
traditional and non-traditional areas. No information was provided on the
composition of this team and the terms of reference of the members.
14.The Ministry also indicated that this Technical Team recommended that theMinistry establish a programme of scholarships that would focus on building
human capabilities within the communities and which programme would not be
tied to or restricted by the traditional criteria.
27 h October 2010
1stNovember 2010
2nd November 2010
14th 17th February
2011
Investigators of the Commissionvisited the Ministry of CommunityDevelopment to inspect the records being supplied to the Commissionand to obtain further informationsuch as payment vouchers and
actual evidence of payments.
This visit wasnecessary at theMinistry Head Officefor properverification ofinformation
The informationobtained from thesesite visits are set outbelow.
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15.The Ministry indicated that based on the recommendations of this TechnicalTeam, Cabinet agreed by Minute No 421 of March 14, 2002, inter alia:
b. To the establishment of a Community Development ScholarshipsProgramme (CSDP) under which bursaries would be awarded to young
persons to undertake programmes of training and/or study in the
traditional and non-traditional areas.
c. That the Ministry of Community Development and Gender Affairs, inconsultation with CBOs an NGOs identify the criteria for the award of the
bursaries; and
d. That the Scholarship Selection Committee be established within theMinistry of Community Development and Gender Affairs to make the
appropriate selections and make recommendations to the Minister for the
award of the bursaries.
16.The Ministry indicated that based on this Cabinet decision, a ScholarshipSelection Committee was established comprising of the Honourable Eulalie James
Minister of State in the then Ministry of Community Development and Gender
Affairs, Ms. Rosalind Khanhai-Trotman Retired Public Officer, Ministry of
Education and Mrs. Maureen Manchouk President, NIHERST.
17.When questioned on the issue of method of publication of notices advertising thegrants, the Ministry indicated that copies of the relevant brochures were sent to all
Community Development Administrative District Offices. However when
requested to provide evidence of this fact the Ministry was unable to do. The
Ministry was unable to provide any information proving that the (CSDP) were
actually advertised and publicised so that members of the public such as the
Complainant could have accessed that scholarship fund and that forms were
available from District Offices.
18.The Ministry indicated that the following was the criteria used to allocatefunding:-
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a. Applicants must be Trinidad and Tobago citizens;b. Programme of training must be of relevance to the country;c.
Applicants and/or their households must provide evidence offinancial need in respect of the proposed programme of training;
d. Only applications in respect of programmes of training at the postsecondary level were considered for assistance;
e. New students were required to seek acceptance at approvedinstitutions in Trinidad and Tobago which offer the proposed
programme of training;
f. Preference was given to programmes of training being offered bylocal and regional training institutions;
g. Preference was given to undergraduate as opposed to post-graduateprogrammes of training;
h. Applications for non-traditional areas of training were alsoconsidered;
i. Applicants had to provide evidence of ability to cover costs inexcess of the level of assistance recommended by the Selection
Committee;
j. Programmes of training must be at approved institutions;k. Applicants were not to be in receipt of awards/ financial assistance
which covered the assistance being sought;
l. Applicants had to demonstrate the ability and the required level ofcommitment to successfully pursue the chosen programme of
training until completion;
19.The Ministry also provided information in the form of a brochure entitledGuidelines for the Award of Financial Assistance [Studies] Programme.
Included in this undated brochure were guidelines to be used in deciding on
assistance to persons. It was stated as follows:-
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e. Eligibility The programme being pursued must be relevant to the needsof the communities of the country.
f.
Value Awards will be approved: To a maximum of twenty-fivethousand dollars (TT$25,000.00) per annum for local programmes, to a
maximum of two thousand, five hundred pounds (2,500.00) per annum
for programmes in the United Kingdom, to a maximum of five thousand
United States dollars (US$5,000.00) per annum for programmes in other
countries. Awards above those specified may be considered, but only in
exceptional cases.
g. Terms Beneficiaries may be required to enter into an agreement with theGovernment of the Republic of Trinidad and Tobago to serve within their
respective communities or the country for a designated period of time.
h. Applicants must submit a recommendation from, or an assessment by a Non- Governmental Organisation (NGO) or Community Based
Organisation (CBO).
i. Each applicant must submit a covering letter detailing the reason/s whyhe/she should be considered for financial assistance.
20.The Ministry also stated that after an application is received it is reviewed by theCabinet appointed Awards Committee. The Committee then makes
recommendations to the Minister. The Ministry was also requested to provide
copies of any agreements signed with persons receiving funding. In its response
the Ministry stated Given the low level of financial assistance (unlike the levels
applicable to scholarships and bursaries) the matter of an Agreement was not
pursued between 2003 and 2007.
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Response dated October 1st
2010
21.The Ministry when asked to provide a justification as to why the amountsawarded exceeded the amounts stipulated in the brochure. They indicated that insome cases circumstances are very extenuating and based on the merit of the
information contained in the documents The Ministry was also asked to
provide copies of all payment vouchers. To date the vouchers were not provided
to this Commission. The Ministry was also asked to provide copies of the minutes
of the meeting of the Scholarship/Awards Committee. It was indicated by the
Ministry that such information was not available.
VISIT TO THE MINISTRY
22.The investigators of the Equal Opportunity Commission visited the RespondentMinistry on several occasions in an attempt to review the records of
disbursements made to grantees for the period 2003-2007. The Commission
requested that the vote books of the Ministry for that time be made available.
However, the Commission was informed that these books could not be located at
the Ministry of Community Development and were at the Ministry of Social
Development. The explanation given was that everything had been handled at the
Social Development ministry.
23.On inspection of one of the vote books the initial disbursement when it wasallocated to the Ministry of Community Development in 2004 started at
$28,864,000 TT Dollars and was increased to $35,000,000TT dollars in the fiscal
year of 2005. In many instances of examining the payment vouchers versus the
vote books that the investigators were allowed to see, there were financial
discrepancies in the incremental amounts stated by the Ministry and the actual
voucher payments as viewed by the investigators.
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24.It should also be noted by the Commission that even though the scholarships fundwas passed in parliament by the former regime (Peoples National Movement) in
2001 it was not until 2003 that funding allocations were made to the Ministry of
Social Development to commence disbursement. In 2004, the responsibility ofthese grants fell within the purview of the Ministry of Community
Development. As mentioned above, the initial funding amount totalled
$28,864,000.00. An examination of the allocations as accounted for in
Parliament by the then Minister Mrs. Joan Eulie Williams disclosed the following
in tabulated format.
25.It should be noted that in many instances none of the figures match up to what theCommission was provided with from the Ministry. The Ministry figures do not
correspond to the figures disclosed in Parliament by the then Minister. For the
period 2002 there was no allocation. In 2003, the Ministry of Social Development
was responsible for the first disbursement. In 2004, the allocation in vote book
was $28,864,000.00. The headings are as follows:
Taken from Head: 55
Current Transfers and Subsides: 04
Sub: 005 Non Profit Intuitions
Years
Ministry
Figures
Allocation
disclosed
in Parliament Used
Vote
Book
Allocation
2002 Nil
2003 $1,033,324.29 $1,500,000.00 $1,190,805.00 Info no available
2004 $5,224,286.75 $5,000,000.00 $4,932,322.48 $28,864,000.00
2005 $10,629,858.46 $5,518,000.00 $5,516,512.10 $35,000,000.00
2006 $5,925,992.32 $18,364,000.00 $18,363,806.13 Info not available
2007 $15,715,000.00 $15,261,182.00 Info not available
2008
Totals $22,833,461.82 $ 46,097,000.00 $45,264,627.71
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27 Non profit Institutions
Further inconsistencies include the non correlation between voucher
amounts and the figures provided for by the Ministry. Cited examples
include:
a. Knolly Charles: Amount received on voucher #271 dated 1/12/05
$84,000.00TT
Information to the Commission $13,395.00TT
b. Natasha Simon: Amount received on voucher #270 of 1/12/05
$80,000.00TT
Information to the Commission $10,115.00TT
26.On inspection of the vote books it was observed by the investigators that theallocated fund was used to pay every imaginable expense from the scholarships
grants to the following: community wardens, salaries, catering services, gardening
services, rental of retained properties, rental of sound equipment, rental of stages,
printing fees, publication fees and communication fees (TSTT etc).
ANALYSIS OF DATA SUPPLIED BY THE MINISTRY
APPENDIX D MASTER LIST
27.The Ministry by letter dated 14th June 2010 provided a list of persons receivingscholarships. The Commission then produced a tabulated list as shown in
Appendix D. This list covers the period 2003 2007. This list shows that 755
persons obtained funding amounting to approximately $34,896,201.51 TT
Dollars. Appendix D sets out the various amounts spent on scholarships per year.
The following can be seen.
2003 1,033,324.29
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2004 5,224,286.75
2005 10,598,358.46
2006 5,925,992.32
2007 12,114,239.69
APPENDIX E - LOCAL PROGRAMMES vs FOREIGN
PROGRAMMES
28.Provides information on the local and regional universities compared to foreignuniversities in relation to funds spent. The following was found:-
Local and Regional Universities - 3,538,095.79 191 persons
Foreign - 31,358,105.72 451 persons
Local amounted to approximately 10% of all studies
APPENDIX F - UNDERGRADUATE vs POSTGRADUATE
29.Provides information on the funding provided for undergraduate compared to postgraduate programmes
Undergraduate Programmes $30,299,794.71 - 87%
Post Graduate Programmes $ 4,596,406.80 - 13%
APPENDIX G - LOCAL AND FOREIGN ABOVE AND BELOW
$31,000 TTDS
30.Provides information funding provided for programmes below $31,000 TT(5000.00 USD) and programmes above 31,000.00 TTD
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Total for Foreign Programmes under $31,000 TTD $1,913,833.31 85
persons 6%
Total for Foreign Programmes above $31,000 TTD $29, 472,212.91 360
persons -94%
Total for Local Programmes under 25,000 TTD $ 1,653,015.00 151
persons 47%
Total for Local Programmes above 25,000 TTD $ 1,857,140.29 39 persons
53%
ANALYSIS OF INFORMATION OBTAINED.
31.Several anomalies were seen to exist in the evidence submitted by the Ministry(refer to paragraphs 38-45 for full list of anomalies). The main discrepancy being
the huge disparity between figures as submitted by the complainant which was
obtained under the Freedom of Information Act and those which were submitted
by the Ministry to the Commission upon request? The total funding paid out by
the Ministry for the period 2003 to 2007 on the complainants list is
$50,863,950.38 while the list of awardees received by the Commission obtained
funding amounting to $34, 896,201.51. In this regard there seems to have been a
reduction of over $15 million dollars in the list provided by the Ministry to the
Commission. The Commission has prepared tables exhibited at Appendix H K
as follows :-
APPENDIX H COMPARISON OF INFORMATION PROVIDED BY
COMPLAINANT AND RESPONDENT CONSISTENT INFORMATION
32.This table shows that of the complainants and respondents list 539 persons areon both lists all. It also shows that the amounts as received by each awardees are
the same on both lists. These awards amounted to $ 30,300,689.89 TTDS.
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APPENDIX I COMPARISON OF INFORMATION PROVIDED BY
COMPLAINANT AND RESPONDENT INCONSISTENT
INFORMATION
33.This table shows 47 persons in which the amount stated as received by them inthe Complainants list differs from that in the Respondents list. These differences
in some cases are huge. The commission thus far has been unable to verify the
correct figures since we have yet to receive the actual vouchers as was requested.
APPENDIX J COMPARISON OF INFORMATION PROVIDED BY
COMPLAINANT AND RESPONDENT INFORMATION MISSING
FROM COMPLAINANTS LIST
34.This table shows that when compared 62 names are on the Respondents list whichare not on the list provided to Commission
APPENDIX K COMPARISON OF INFORMATION PROVIDED BY
COMPLAINANT AND RESPONDENT INFORMATION MISSING
FROM COMMISSIONS LIST
35.This table shows that when compared 472 names are on the complainants list butare not on the list provided to the commission.
APPENDIX L A COMPARISON OF PERSONS FOR WHOM THERE
NO APPLICATION FORMS FOUND AND THOSE WHERE
APPLICATION FORMS WERE FOUND.
36.The Commission found that of the total number of persons receiving scholarshipsthe following information was obtained.
No Application forms - 47%
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Application forms with address included 49%
Application forms with no address included 4%
APPENDIX M - DISTRIBUTION OF FINANCIAL ASSISTANCE BYELECTORAL DISTRICT (based on existing application forms)
37.The Commission found that when it reviewed the addresses of persons whereapplication forms were found persons applying for scholarships came from 26
constituencies. The top five (5) constituencies are as follows:-
San Fernando 16.9%
Port of Spain North/ St. Anns West 11.4%
Diego Martin West 11.0%
Arima 8.6%
Laventille East/Morvant 5.9%
APPENDIX N DISTRIBUTION OF FINANCIAL ASSISTANCE BY
ETHNICITY
38.This table shows the amount of persons belonging to the same ethnicity as thecomplainant and who received funding. It shows that 7% of persons receiving
funding were of East Indian descent whilst 93% were of non- indo Trinidadian
origin. Whilst names may not always identify precisely ethnicity, reliance was
placed on the methodology employed by the team in the La Guerre and Ryan
report on Ethnicity and Employment Practices in Trinidad and Tobago 1992.
MINISTRY BREACHES
39.No record of Selection Committee meetings - The Commission was informedthat there are no copies of minutes of any meeting of the Selection Committee or
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any information regarding what would have taken place during the evaluation of
applications.
40.Review of applications forms - From the period 2002-2005, there appears tohave been no standardized application form utilized by applicants. Based on a
review of the applications of persons requesting grants for the year 2002-2007,
several claims of financial need and subsequent awards of financial assistance
were identified as suspicious. This was for the following reasons: The applicants
examined reveal several instances where applicants were granted financial
assistance based on recommendations made from Government Ministers or
Members of Parliament. Records also indicate that the vast majority of applicants
who were granted financial assistance by the Ministry lived in constituencies
ruled by the PNM Constituencies. See Appendix M. Set out in Appendix O are
examples of the above mentioned cases:-
41.Criteria for award of financial assistance not adhered to - Awards grantedover maximum amount as stated - The Guidelines for The Award of
Assistance under The Community Development Financial Assistance [Studies]
Programme (Guidelines) provided by the Ministry to the Commission states that
awards would be approved to a maximum of twenty-five thousand dollars
(TT$25,000.00) per annum for local programmes, to a maximum of two
thousand, five hundred pounds (2,500.00) per annum for programmes in the
United Kingdom, to a maximum of five thousand United States dollars
(US$5,000.00) per annum for programmes in other countries. Awards above
those specified may be considered, but only in exceptional cases.However, on
analysis the amounts granted to recipients of the CSDP provided by the Ministry
shows that over 400 recipients for the period 2003-2007 received more than the
amount specified in the Guidelines. The figures therefore raise the question of
what constituted the exceptional circumstances referred to in the Guidelines that
would have influenced the Ministry to award sums over the maximum amounts
quoted.
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An NGO or CBO must confirm the applicants involvement. However, none of
the copies of applications reviewed by the Commission contain any such
recommendations. Furthermore, there was no evidence presented to suggest that
any NGOs or CBOs were involved in any aspect of the CSDP.
46.Awards based on Financial Need The criteria as set out by the Ministrystated that applicants must provide evidence of financial need. However the
information obtained showed that there were instances where applicants were
awarded grants not based on financial need but based on recommendations from
then Ministers of Government and even from the Prime Minister himself. This
was especially during the period in question. The following are such instances. It
is also interesting to note that the following names were not provided to the
Commission by the Ministry, instead these were names found by the investigators
upon their visit to the Ministry. Examples include:
a. In 2004 Adanna Joseph received $25,600.00 to pursue a BA in
Public Relations Cooperative Education Route Programme at
Mount Saint Vincent University. She is the daughter of Brigadier
Peter Joseph. A note attached to the Interview sheet of the Ministry
stated the following Does not qualify under needy. However
some assistance is recommended. Additionally, attached to his
application form was a note from the then Prime Minister Patrick
Manning on the Prime Ministers official stationary with the words
Hon. Joan Yuille Williams. Please assist. The note also included
what purports to be Mr. Mannings signature and the date
04.10.24.
b. Kariym McHoney was awarded $50,400.00 in 2005 and
$63,200.00 in 2006. The remarks/recommendations column of the
Interview sheet stated the following Family is not really
financially stressed; Father is Commissioner of Prisons, mother
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teacher. Does NOT qualify under needy. However, some
assistance is recommended
47.No Advertisement of Financial Assistance Studies Programme - No evidencewas provided to substantiate the Ministrys assertion that the awards were
sufficiently advertised and made available for all nationals during the period in
question. For instance, the Ministry maintained that it sent Guidelines to eight
Community Development Administrative District Offices but have been unable to
locate any correspondence that would have been sent to provide information to
those at the District Offices responsible for distributing said brochures. It would
have been a suitable best practice for the Ministry to publish or advertise the
existence of the scholarship as is the norm for scholarship programmes.
48.Additionally based on the review of the documents completed, none of theapplicants requesting funding mentioned seeing a brochure or an advertisement
relating to the availability of grants at the Ministry. On the contrary, as
previously stated, several of the applicants seemed to have been referred either by
a Member of Parliament or a Government Minister. The remaining applicants
appear to have been trying to gain financial assistance without actually being
aware whether such assistance was available.
49.Having regard to all of the information the Commission has been provided withThe Commission is of the view that the entire process of awarding financial
assistance was not conducted fairly, legitimately and/or with the intention of
allowing all eligible persons an equal opportunity to access the financial
assistance for education from public funds.
APPLICABLE LAW
50.The Complainant in this matter brings his claim of discrimination to the EqualOpportunity Commission (EOC) pursuant to the Equal Opportunity Act (EOA)
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2000. This act allows persons to lodge complaints of discrimination based on
certain prohibited grounds of discrimination. The prohibited grounds of
discrimination include, race, ethnicity, sex, religious belief, marital status and
geographical origin.
51.A claim for discrimination can be brought under certain recognised categoriessuch as, employment education, provision of goods and services and
accommodation. The applicant in this case complains that he was discriminated
against by the state and more specifically the Minister and the Ministry of
Community Development. His complaint centres on the provision of scholarships
to certain individuals whilst he was denied the opportunity to obtain such a
scholarship. He alleges that the failure of the Ministry to award him a scholarship
would have prejudiced his career opportunities. Additionally a financial strain
would have been placed on him to spend his money to become competitive with
other individuals who were granted scholarships.
52.The complainant brings his claim pursuant to S. 5 and 17 of the EqualOpportunity Act 2000 (EOA) on the grounds of his race and ethnicity. This
complaint on the facts can be categorised under the provision of goods and
services.
53.In establishing discrimination a complainant must show that they were treated lessfavourably than someone of a different status and that this difference in treatment
was because of the complainants relevant status at the time. S. 5 of the EOA
provides
S.5 For the purposes of this Act, a person ("the discriminator")discriminates against another person ("the aggrieved person") on the
grounds of status if, by reason of
j. the status of the aggrieved person;
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k. a characteristic that appertains generally to persons of the statusof the aggrieved person; or
l. a characteristic that is generally imputed to persons of the statusof the aggrieved person,
the discriminator treats the aggrieved person, in circumstances that are the
same or are not materially different, less favourably than the discriminator
treats another person.
S. 5 EOA
54.The test of causation used in S.5 in the EOA is expressed as on the ground ofand by reason of for discrimination complaints. In the Australian case ofCraig
Williamson Pty Ltd v Barrowcliff[1915] VLR 450 at 452 per Hodges J. it was
stated that it is a general rule of statutory construction that where the legislature
uses the same words, or essentially the same words, in different provisions, the
intention is that those words should have the same meaning.
55.There are at least two ways in which courts and tribunals in Australia with whoseanti discrimination legislation Trinidads own Act is closely mirrored have
interpreted the phrase on the ground of in relation to complaints of
discrimination. The first is the but for test or objective approach and the second
is the true basis or real reason test or subjective approach. One of the differences
between the two tests is that the but for test is an objective or strict liability test
where the motives or intentions of the alleged perpetrator are not relevant:
Bernardi G, Direct Discrimination in the Disability Discrimination Act, The
Australian Law Journal, vol 76, p 512 at 514. When applying the true basis
test, the decision maker may have regard to the perpetrators motives and
intentions:Purvis v State of New South Wales (2003) 217 CLR 92 at 163.
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56.The but for test. When applying this test the decision maker asks whether butfor the particular attribute (sex, race, disability etc) the person would have been
subjected to the treatment or conduct. A simple illustration of this test is provided
by the case ofHaines v Leves (1987) 8 NSWLR 442. In that case the Court ofAppeal held that a complaint of sex discrimination by a female student at a single
sex school was substantiated because she was not given access to the same
subjects as a male student attending a nearby single sex school. The Court said
that but for the sex of the female student she would not have been treated less
favourably than the male student was treated. The lack of any intention or motive
to discriminate was held not to be relevant.
57.In IW v City of Perth (1997) 191 CLR 1, both Toohey and Gummow JJ sawsome utility in the but for test where the alleged discriminator is not an
individual but a collection of individuals or a corporate body. In that case, the
High Court was considering the disability discrimination provisions of theEqual
Opportunity Act1984 (WA) .The City of Perth Council rejected an application
for planning approval for a drop in centre for people with HIV. Of the 25
members of council who voted, 13 voted against the application and 12 voted in
favour, so that a change in one of the negative votes would have changed the
outcome. Of the 13 councillors who opposed the drop-in centre, five were found
to have voted on the basis of the AIDS factor. The majority (Brennan CJ,
Dawson, Gaudron, McHugh and Gummow JJ) rejected IWs submission that the
Council had discriminated against him on the ground of his impairment and
dismissed the appeal. Toohey and Kirby JJ dissented. Toohey J said at p 31 that as
long as the discriminatory factors were one ground for the decision, even if
not the principal ground, the decision would contravene the legislation. His Honor
added at p 32 that while the but for test has been rejected as a definitive test for
causation, it may provide some guidance in circumstances where, as in this case, a
corporate body is the decision makerIn the present case each Councillor in the
majority determined the outcome by the vote he or she cast. If one or more of
these Councillors voted on an impermissible ground, whether or not that was
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the dominant or substantial reason (s 5) that vote determined the outcome
because the result would have been different but for the vote of that
Councillor.
58.Kirby J went further saying at p 64, that the but for test was the correct test. InSivananthan v Commissioner of Police, New South Wales Police Service [2001]
NSWADT 44, the Tribunal when considering a complaint of victimisation,
adopted the but for test for causation set out by Kirby J. At [43], the Tribunal
made the following observation: Kirby J considered this broad issue of causation
inIW v City of Perth (1997) 191 CLR 1 at 62-64 when discussing the terms of the
West Australian Equal Opportunity Act1984. We adopt his language: it is
sufficient if the unlawful reason, that is the fact that the complainant had
lodged complaints of race discrimination, had a real causative effect in the
sense that but for its presence the act complained of would not have occurred
[Emphasis added.]
59.The true basis test. Two years after the Tribunal handed down its decision inSivananthan, the High Court had another opportunity to consider the test of
causation in relation to complaints of discrimination. In Purvis v State of New
South Wales (2003) 217 CLR 92 (Purvis), a student with brain damage was
excluded from a high school because of aggressive behavior including hitting and
kicking. The majority (Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ)
decided the appeal in favour of the State of New South Wales on the basis of the
differential treatment or comparator element of discrimination (less favourable
treatment than the treatment the perpetrator gave or would have given to a person
without that attribute). Although interpreting the words because of rather than
on the ground of the majority of the High Court explained that the accepted test
for causation in the context of anti-discrimination legislation is to ask why the
aggrieved person was treated as they were. The focus is on the true basis (per
Gleeson CJ at 102), genuine basis (Gleeson CJ at 102), or the real reason
(McHugh & Kirby JJ at 144) for that treatment.
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60.In a joint judgement with McHugh J, Kirby J re-visited passages inIW v City ofPerth (1997) 191 CLR 1 referring to the but for test at p 143. It is true that
statements of Toohey J and Gummow J in IW v City of Perth might appear tosupport a "but for" test in discrimination cases. Kirby J, after referring to the
"reasons for the conduct of the alleged discriminator", said that the "but for" test
applied by the House of Lords in James and by this Court in Banovic and Waters
was "the correct test". In IW v City of Perth, however, the references to the "but
for" test were expressed in relation to a decision of a corporate body that was
made by its Councillors casting votes. The weight and course of authority no
longer accepts that the "but for" test is the accepted test of causation in the context
of anti- discrimination legislation. That is because that test focuses on the
consequences for the complainant and not upon the mental state of the alleged
discriminator.
61.The majority inPurvis (Gummow, Hayne and Heydon JJ) did not refer to the butfor test. Their Honours adopted the true basis test and emphasised that the
motive or intention of the alleged perpetrator may be relevant. For present
purposes, it is enough to say that we doubt that distinctions between motive,
purpose or effect will greatly assist the resolution of any problem about whether
treatment occurred or was proposed because of disability. Rather, the central
question will always be why was the aggrieved person treated as he or she was?
If the aggrieved person was treated less favourably was it because of, by
reason of, that persons disability? Motive, purpose, effect may all bear on that
question. But it would be a mistake to treat those words as substitutes for the
statutory expression because of (at p 163).
62.In Purvis it was stated the question a Tribunal should ask when addressing thecausation element of direct discrimination is whether the persons sex, race,
disability, etc (including the extended definitions of those grounds) is at least one
of the real, genuine or true reasons for the treatment. For that to be the case,
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that reason must have been a reason which, either alone or in combination with
other reasons, was the true basis for the treatment.
63.In the UK case of Chief of West Yorkshire Police v Khan [2000] I.C.R 1169which involved a claim at an employment Tribunal of unlawful racial
discrimination by the chief constable. On the issue of whether motive is required
in proving discrimination. It was stated in Khan that Section 1(1) (a) of the Race
Relations Act of 1976 requires the discrimination to have been on racial
grounds.Section 2(1) of the Act of 1976 requires the victimization must be by
reason that
64.The equivalent provision to section 1 of the said UKRace Relations Act of 1976is section 1 of the UK Sex Discrimination Act 1975. That section requires the
discrimination to be on the ground of her sex (section 1(1) (a). Section 4 of
the Sex Discrimination Act 1975, which is the equivalent ofsection 2 of the Act
of 1976, and requires the victimization to be by reason that the person
victimized has done the protected act.
65.Our legislation contains provisions that are similar to that of both the UK RaceRelations Act 1976 and the Sex Discimination Act 1975. Section 5 of the EOA
2000 provides For the purposes of this Act, a person (the discriminator)
discriminates against another person (the aggrieved person) on the grounds
of status if, by reason of. Section 6 of the Act requires victimization must be by
reason that. Therefore in relation to discrimination our S.5 requires the
aggrieved person to prove that by reason of the relevant status he was treated less
favourably. The issue then is to what extent is the aggrieved persons required to
prove the cause of the discrimination under the EOA.
66.An analysis of the UK authorities may assist in this regard. In Reg. v. Birmingham City Council, Ex parte Equal Opportunities Commission [1989]
A.C. 1155 and James v. Eastleigh Borough Council [1990] I.C.R. 554the House
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of Lords confirmed earlier authorities which had held that it was not correct to
construe the phrase on the ground of her sex as referring to the alleged
discriminator's reason for taking the action of which complaint is made. The
question is objective and not subjective. As Lord Goff of Chieveley said in theBirmingham City Council case, at p. 1194: There is discrimination under the
statute if there is less favourable treatment on the ground of sex, in other words if
the relevant girl or girls would have received the same treatment as the boys but
for their sex. The intention or motive of the defendant to discriminate, though it
may be relevant so far as remedies are concerned is not a necessary condition
of liability; it is perfectly possible to envisage cases where the defendant had no
such motive, and yet did in fact discriminate on the ground of sex.
67.InJames v. Eastleigh Borough Council [1990] I.C.R. 554, which turned on thefact that the retirement age for men was 65 and that for women was 61, with the
consequence that a 61-year-old man was treated less favourably than his wife who
was of the same age, Lord Bridge of Harwich, at p. 568a , identified the question
and the answer as being Would the plaintiff, a man of 61, have received the
same treatment as his wife but for his sex? An affirmative answer is
inescapable.
68.In the same case Lord Goff said, at p. 576: I incline to the opinion that, if it werenecessary to identify the requisite intention of the defendant, that intention is
simply an intention to perform the relevant act of less favourable treatment.
Whether or not the treatment is less favourable in the relevant sense, i.e. on the
ground of sex, may derive either from the application of a gender-based criterion
to the complainant, or from selection by the defendant of the complainant because
of his or her sex; but, in either event, it is not saved from constituting unlawful
discrimination by the fact that the defendant acted from a benign motive.
However, in the majority of cases, I doubt if it is necessary to focus upon the
intention or motive of the defendant in this way. This is because, as I see it, cases
of direct discrimination under section 1(1)(a) can be considered by asking the
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simple question: would the complainant have received the same treatment from
the defendant but for his or her sex? This simple test possesses the double virtue
that, on the one hand, it embraces both the case where the treatment derives from
the application of a gender-based criterion, and the case where it derives fromthe selection of the complainant because of his or her sex; and on the other hand
it avoids, in most cases at least, complicated questions relating to concepts such as
intention, motive, reason or purpose, and the danger of confusion arising from the
misuse of those elusive terms.
69.In Nagarajan v. London Regional Transport [1999] I.C.R. 877. This caseinvolved the Act of 1976 and section 2(1) of the Act. The House of Lords held,
that a finding of direct discrimination on racial grounds under section 1(1) (a) of
the Act of 1976 did not require that the discriminator was consciously motivated
in treating the complainant less favourably. It was sufficient if it could properly be
inferred from the evidence that, regardless of the discriminator's motive or
intention, a significant cause of his decision to treat that complainant less
favourably was that person's race.
70.This was because no proper distinction could be drawn between the terms onracial grounds in section 1(1) (a) and by reason that in section 2(1) of the Act
of 1976. The discriminator need not have realized that he had in fact been
motivated by his knowledge of the complainant having previously sought to
enforce her rights under the Act.
71.In his speech, Lord Nicholls first of all considered the position under section 1(1)(a) under the Act of 1976 and then turned to section 2. He said, at p. 886a-d: On
racial grounds' in section 1(1) (a) and by reason that in section 2(1) are
interchangeable expressions in this context. The key question under section 2 is
the same as under section 1(1) (a): why did the complainant receive less
favourable treatment? The considerations mentioned above regarding direct
discrimination under section 1(1)(a) are correspondingly appropriate under
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section 2. If the answer to this question is that the discriminator treated the
person victimized less favourably by reason of his having done one of the acts
listed in section 2(1) (protected acts), the case falls within the section. It does
so, even if the discriminator did not consciously realize that, for example, hewas prejudiced because the job applicant had previously brought claims against
him under the Act.
72.On the facts the question then becomes whether the reason the less favourabletreatment towards the Complainant was because of his race. The above
mentioned authorities seem to toggle between a subjective approach or objective
approach. The former searches for a justification for the treatment, while the latter
applies a strict liability test. InHCA No. S 2065/2004 between Sanatan Dharma
Maha Sabha et al vs. The Attorney General of Trinidad and Tobago (Trinity
Cross matter).Jamadar J sitting in the High Court stated In my opinion it is
unrealistic to have an entirely objective test. I would therefore frame the test as
subjective objectivity in order to capture the idea that it is not either one or the
other but a synthesis of both.
73.Applying firstly the but for test, the information obtained by the commissionreflects that approximately 7% (about 47 persons) receiving scholarship grants
were of East Indian descent. This inherent trait would therefore have placed the
Complainant at a disadvantage ab initio. Therefore it seems highly probable on
the evidence before the Commission that but for his ethnicity he would not have
been so disadvantaged and would have had a greater chance of obtaining a
scholarship had he been of a different ethnicity.
74.Secondly in applying the subjective approach, the Ministry was asked to provide aresponse to the allegations that they discriminated against the complainant. In
their response they simply indicated that the scholarships were advertised, but no
evidence could be found of such advertisements. It could therefore be reasoned
that the Ministrys inability to inform the complainant and others about the
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scholarship fund resulted in a direct exclusion of the complainant from ever
knowing and being able to apply for a scholarship. On the facts the Ministry
provided no justifiable reason as to why the complainant was excluded from
applying for a scholarship.
PROVISION OF GOODS AND SERVICES
75.S. 17 EOA makes it unlawful for a person concerned with the provision of goods,facilities and services to the public to discriminate against a person in the way in
which the goods are distributed. This section makes it clear that the provision
could be for payment or non payment. S. 57 provide that this Act binds the State;
therefore by extension the reference to person would include the State. The
Complainant alleges that he was discriminated against because of his race and
ethnicity in not being awarded a scholarship.
76.In determining the meaning of service the Australian case ofAB v Registrar ofBD & M 2001 FCA 1740 is useful. Heerey J stated service involves an act of
helpful activity or the supplying of any... activities, required or demanded
(Macquarie Dictionary) or the action of serving, helping, or benefiting, conduct
tending to the welfare or advantage of another. Altering the Birth Register was
an activity.... The carrying out of that activity would have conferred a benefit on
the applicant. The Registrar, because of the terms of the BDM Act declined the
request to carry out that activity. This was the refusal of a service. An activity
carried out by a government official can none the less be one which confers a
benefit on an individual.
77.On appeal in this matter Black CJ agreed with Heerey Js findings. Heconcluded that applying a purposive interpretation of the word service, the
alteration of a persons sex on their birth registration comes within the meaning of
that term. Therefore in determining whether there has been a violation of the Act,
it is necessary to consider the intention, purpose and effect of the relevant section.
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The issue then becomes what is the true purpose of S. 17. In an analysis of the
EOA 2000 it can be seen that the Act was created to work alongside the
Constitution of Trinidad and Tobago in order to prevent instances of
discrimination. This Act therefore requires that actions of individuals inclusive ofthe state are based on the principles of equity and fairness. S. 5 places a general
prohibition on discrimination relating to all four categories inclusive of the
provision of goods and services.
78.In Palgo Holding Pty Ltd v Gowans (2005) 221CLR 249 Kirby J summarisedthe principle as follows: - Purposive interpretation: the first principle holds
that a purposive and not a literal approach is the method of statutory
construction that now prevails. A search for the grammatical meaning still
constitutes the starting point. But if the grammatical meaning of a provision
does not give effect to the purpose of the legislation, the grammatical meaning
cannot prevail. It must give way to the construction which will promote the
purpose or object of the Act. Lord Diplock in an extra judicial statement in IRC
v Ayreshire Employers Mutual Insurance Association Ltd 1949 1 All ER
stated that if the courts can identify the target of parliamentary legislation their
proper function is to see that it is hit not merely to record that it has been missed.
Brennan CJ and Mc High J in IW v City of Perth (1996) 191 CLR 1 outlined
the appropriate approach to statutory construction; they stated that beneficial
and remedial legislation is to be given a liberal construction. It is to be given a
fair, large and liberal interpretation rather than one which is literal or technical.
They were of the view that Equal Opportunity Acts are remedial and beneficial in
nature.
79.From the above analysis it is arguable that the Ministry was indeed providing aservice. Receiving a scholarship can amount to a benefit capable of granting an
advantage to the beneficiary.
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THE COMPARATOR
80.The Complainant indicated that his comparator Mrs. Laurel Lezama was similarlycircumstanced to him; he alleged however because of her ethnicity she was
awarded a scholarship whilst he was not. To prove discrimination it must be
shown that the state in providing a grant to citizens treated the complainant less
favourably than they did someone of a different status.
81.The Complainant in this case provided evidence of a comparator. In choosing acomparator the comparison must be like with like. The term relevant
circumstances was discussed in the case of Shamoon v Chief Constable of the
RUC [2003] ICR 337 here a superintendent relieved inspector Joan Shamoon of
her appraisal duties. She brought a claim of sex discrimination using as
comparators two male inspectors who had not been relieved of their appraisal
duties. Her difficulty was that no complaints had been made against these
inspectors and she had not proved that she had been treated less favourably than a
male inspector would have been, had he received complaints, and the HL
dismissed her claim. In choosing a comparator the relevant circumstances must be
materially the same in each case for the comparison.
82.In Amnesty international v Miss B Ahmed [2009] ICR 1450 (EAT) theemployment appeal Tribunal stated In our judgement the hypothetical
comparator here is any similarly or identically qualified applicant as the Claimant,
with the same level of experience who was of non-Sudanese ethnicity. Skin color
is irrelevant in our view as is current nationality, given the facts that we found.
The relevant circumstances in our judgement call for a straightforward
comparison with a hypothetical comparator, so that the difference between the
claimant and the comparator is only the difference of ethnic origin. We find that
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this is the hypothetical comparator that best fits the facts of the case. Further, any
other more sophisticated form of hypothetical comparator raises difficulties.
83.In Civil Appeal No. 143 OF 2006 the Public Service Commission vs DenisGraham the Commission in 1997 decided to promote thirteen officers to the rank
of Superintendent, Graham was one of the officers considered for promotion.
Counsel for Graham submitted all the officers including Graham were then equal
in rank, i.e. Assistant Superintendent, and all the officers including Graham were
recommended for promotion. The only difference that arose on the evidence was
that Graham at one time had criminal charges brought against him. Mendonca JA
stated The question therefore is whether that is a relevant circumstance so that
the other officers were not appropriate comparators. On the evidence in this
case it is certainly arguable that the fact that Graham was at one time
subject to criminal charges is not a relevant circumstance as to differentiate
him from the other officers. It is therefore arguable that the other officers were
appropriate comparators.
84.In proving discrimination against the Ministry, it was alleged by the complainantthat the Ministry discriminated against him on the basis of their omission to
advertise the Ministrys provision of scholarships to individuals. On investigation
of this allegation the Commission found that the Ministry did not publish or
advertise the fact that scholarships were being provided to individuals. In
comparison the Commission has noted instances where scholarship by the
Ministry was published. The Commission upon reviewing application forms
obtained from the Ministry found that most persons who applied for
scholarships did so with the recommendation of a government minister or other
politician or known supporter of the Government at that time. An inference can
therefore be made that persons who obtained scholarships did so on the basis of
their affiliations and or relations with the governing party at the time.
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85.The Constitutionof Trinidad and Tobago places a duty on the State to treat allcitizens in an equal manner and not to discriminate against anyone. The EOA
2000 also places a duty on the State not to discriminate against persons based on
certain prohibited grounds. On the facts therefore what is important and pertinentto this matter is the entitlement of all persons to participate in the process of
obtaining a scholarship and which included all persons having an equal
opportunity or chance to obtain a scholarship. Therefore no person should be
placed at a disadvantage. Inherent in placing all persons on an equal footing in
relation to the distribution of resources is that fact that all persons so entitled
should have known of the fact the scholarships were being distributed.
86.The Commission have found no evidence to support the statements of theMinistry that the existences of scholarships were advertised. Therefore it would
seem that the Complainant and others who did not have knowledge of this
existence were indeed placed at a disadvantage and would not have had an equal
chance of obtaining a scholarship as compared to someone who knew of the
existence of the scholarships. The Commission also observed that for those who
did apply for scholarships attached to the application forms were usually letters of
recommendation from a politician belonging to the ruling party at that time.
87.In ensuring that all interested persons were on an equal footing it was necessaryfor all persons to have known about the scholarship fund and thus being able to
apply for a scholarship. Each citizen of Trinidad and Tobago are and should have
been eligible to be considered for a scholarship.
88.In the distribution of state resources a special duty is placed on the state to ensurethat resources are being distributed equitably. The preamble to the Constitution
states where as the people of Trinidad and Tobago .... respect the principles
of social justice and therefore believe that the operation of the economic
system should result in the material resources of the community being so
distributed as to subsume the common good. This must be read in conjunction
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with S. 4(d) which provides for the right to equality of treatment from any public
authority, this would include the distribution of state resources.
JURISDICTION OF THE EQUAL OPPORTUNITY COMMISSION
89.The Equal Opportunity Act 2000 which had been passed by a simple majority ofboth Houses of Parliament, extended that protection by prohibiting discrimination
by any person on grounds of, inter alia, sex, race, or disability in relation to
employment, education or the provision of goods and services. Part VI of the Act
set up an Equal Opportunity Commission with the power to refer complaints, with
the consent of the complainant, to a new Equal Opportunity Tribunal, set up by
Part VIII of the Act.
90.The Act did not vest judicial power in the Commission but rather such powerexists with the Tribunal. The Commission therefore is not equipped with the
power or jurisdiction to hear, determine or make pronouncements or findings in
relation to a complaint lodged with the Commission. Instead the jurisdiction of
the Commission extends so far as only to make a finding of fact that enough
factual information exists which makes the complainants case an arguable one.
91.Once established the Commission can recommend that the matter be conciliated.It is noted that the conciliation process itself is voluntary. Furthermore the
Commission can file a claim with the Tribunal if consent is received from the
complainant. The commission pursuant the Act does not have the jurisdiction or
power to make any finding as to discrimination. All matters relating to finding in
law can only be determined by the Tribunal.
92.This is in keeping with the principles of separation of powers, since theCommission is effectively an administrative body performing an executive
function. The purpose of equipping the Commission with investigatory powers
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was so that information can be obtained to determine factually whether a person is
acting or has acted in a manner which can result in discrimination. It is then for
the Tribunal to determine whether discrimination existed and to make a finding as
such. The Commission therefore was primarily set up as a fact gatherer, and toassist complainants in obtaining information that they themselves would be
unable to obtain.
93.In Australia a system of Anti-discrimination legislation was set up to deal withcomplaints of discrimination. The system was one similar to that of the EOA 2000
in relation to the existence of a Commission to investigate instances of
discrimination. However the difference in this regard was the Australian
Commissions actually conducted hearings, made findings as to discrimination
and awarded damages.
94.However in the case of Brandy v Human Rights and Equal OpportunityCommission (1995) 183 CLR 245 the High court of Australia ruled that the
Commission by performing these functions were usurping a judicial function in
breach of the Australian Constitution. This prompted Parliament to amend the
legislation, eventually to allow the commission only to conduct investigations and
facilitate the conciliation process. All powers relating to hearings and awards
were repealed.
CONCLUSION
95.On the evidence submitted it is clear that the Ministry did have establishedapproved criteria as to the requirements to be satisfied for a person to be able to
obtain a scholarship. From the information supplied by the Ministry it is clear that
the intention and purpose of the Community Development Scholarships
Programme (CDSP) was intended for availability to all citizens of Trinidad and
Tobago. There was no indication by the Ministry that a criterion existed to
prevent certain individuals from applying.
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96.On the facts submitted therefore no criteria existed which would legally excludethe complainant. However it seems the act of not advertising the existence of the
CDSP may have had the effect of excluding the complainant which resulted in theComplainant being treated in a less favourable manner than his comparator.
97.Additionally on the facts the Ministry proceeded to award scholarships, withoutadvertising to the public at large or without having a standardised application
form. On an analysis of the information obtained it was found that the Ministry by
granting scholarships in the format that existed acted in breach of their own
criteria. In fact even the existence or operation of the Scholarship Selection
Committee is uncertain, since there were numerous instances mentioned above
where the Prime Minister at the time or some other government official wrote to
the Minister recommending a person for financial assistance. The Commission
was also told that there were no minutes of the said Committee.
98.It can be reasoned that the effect of the procedure adopted by the Ministry indistributing scholarships under the CDSP had the effect of a disadvantage upon a
significant proportion of the population who were of East Indian ethnicity
inclusive of the complainant. This is evidenced by the fact that approximately 7%
of persons receiving scholarships were of East Indian ethnicity.
99.The existence of such CDSP therefore had the continuing effects of denying,limiting, restricting or inhibiting the complainant and others like him from being
able to participate in the processes linked to the award of a scholarship under the
CDSP and thus access, the advantages, benefits and opportunities available to
other equally comparable members of society who participate in the processes
linked to and who were successful in gaining the advantages, benefits and
opportunities derived from receipt of a scholarship under the CDSP.
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100. On the basis of all the information obtained the onus was placed on theRespondent to show whether some legitimate, objectively purposeful and
reasonable justification existed that would offset the discriminatory effects of the
CDSP. On the facts the Ministry was unable to provide any reason albeit a justifiable one explaining why the complainant was excluded from the group of
persons receiving scholarships.
101. The Commission considers that the complainant in this matter did provideenough evidence for an inference of discrimination to be made out against the
Ministry. The Commission is also of the view that based on the evidence supplied
the Ministry did not provide a reasonable justification as to why the applicant was
not granted a scholarship. The Commission also noted that in the circumstances
the applicant was placed in a disadvantageous position from the start by not
having knowledge of the existence of a scholarship fund.
102. Though the Complainant is one person in a class of persons who are ofEast Indian ethnicity the effect of the Ministry not advertising the existence of a
scholarship fund but allowing persons of other ethnicity did in impose a
disadvantage upon a significant proportion of the population inclusive of the
complainant.
103. Additionally on the issue of time limit pursuant to S. 30(3) of the EqualOpportunity Act 2000 the Commission it is stated may in exceptional
circumstances accept a complaint made more than six months after the act of
discrimination. The Commission accepted this complaint as one falling within
exceptional circumstances. Although the subject matter of the complaint was
within the period 2003-2007 the Equal Opportunity Commission was only
appointed in April 2008 and only became operational in January 2010.
Complainants therefore could not have had their matters investigated until the
year 2010.
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104. The Commission has also taken note of the fact the there was undue delayin the appointment of the Commission since the Equal Opportunity Act 2000 was
proclaimed in 2001. The complainant in this matter did lodge his complaint
before the Commission was operational and on that basis the Commissionaccepted the Complainants complaint.
105. In the circumstances the Commission has considered that pursuant to S. 35of the Act the subject matter of the complaint may be resolved by conciliation and
recommend that this matter be submitted for conciliation.
106. Additionally it is also recommended that a forensic audit be conducted bythe appropriate authority in relation to the disbursements of funds to persons.
Dated 19th July 2011
_______________________________
Emeritus Professor John La Guerre
Chairman
Equal Opportunity Commission
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