Bain v University of the West Indies

• Jurisdiction: Jamaica
• Judge: Lennox Campbell, J.,Paulette Williams, J.,Frank Williams, J.,Campbell J.
• Judgment Date: 31 July 2017
• Neutral Citation: [2017] JMFC FULL 3
• Docket Number: CLAIM NO. 2014 HCV 02857
• Court: Supreme Court (Jamaica)
• Date: 31 July 2017

In the Matter of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 (the Charter)

and

In the Matter of Professor Brendan Courtney Bain for Constitutional Redress pursuant to section 19(1) of the Charter.

Between

Brendan Courtney Bain

Claimant

and

The University of the West Indies

Defendant

[2017] JMFC FULL 3

Cor:

THE HONOURABLE Mr. Justice L. Campbell

THE HONOURABLE Miss Justice P. Williams

THE HONOURABLE Mr. Justice F. Williams

CLAIM NO. 2014 HCV 02857

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Constitutional Law — Claim for breach of Fundamental Rights and Freedoms — Freedom of Expression — Freedom of Thought and Conscience — Expert Witness — Expert Report — Whether breach of Fundamental Rights and Freedoms is demonstrably Justified in a Free and Democratic Society — Breach of Employment Contract — Payment in Lieu of Notice — Stigma and Reputational Harm — Loss of Advantage on the Labour Market — Breach of Implied Term of Trust and Confidence — Defamation — Damages — Aggravated Damages — Constitutional and Vindicatory Damages.

Contract Law - Breach of contract — Employment contract — Whether the termination was in breach of the implied term of trust and confidence contained in the contract of employment.

Defamation - Whether the defendant's statement posted on its website and subsequent publications were defamatory of the claimant.

Damages - Assessment of damages — Breach of contract — Aggravated damages — Stigma and reputational damage.

Mrs. Georgia Gibson-Henlin; Mrs. Tanisha Rowe-CokeandMiss. Kristen Fletcher, instructed byHenlin Gibson Henlinfor the claimant.

Mr. Hugh Small, Q.C.; Mr. Christopher Kelman and Mr. Krisna Desai, instructed byMyers FletcherandGordonfor the defendant.

Miss Carlene Larmond; Miss Simone PearsonandMr. Andre Moulton, instructed by the Director of State Proceedings for the Attorney General as amici curiae.

Lennox Campbell, J.

1 I have read in draft the judgments of my sister, P. Williams, J and brother, F. Williams, J. I agree with their reasoning and conclusion and I have nothing to add.

Paulette Williams, J.

Background

2 Brendan Courtney Bain, the claimant, is a medical doctor and professor who served as Director of the Regional Co-ordinating Unit of the Caribbean HIV/AIDS Regional Training “CHART” Initiative at the University of the West Indies, Mona, the defendant. By way of letter dated the 20 May, 2014, the Vice-Chancellor of the defendant purported to terminate the claimant's contract as Director of CHART on behalf of the defendant.

3 The claimant contends that this termination was a direct consequence of his having complied with an order of the Supreme Court of Belize in the matter of Caleb Orozco v The Attorney General of Belize, “the Orozco case”. By an order of the Court, he had been appointed one of the experts on behalf of the church, an interested party in the matter, and as such, he had prepared and submitted his expert report.

4 The claimant is alleging that the defendant infringed rights guaranteed to him under section 13(3) (b) and (c) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011. Further, he asserts that the actions of the defendant caused injury to his reputation, loss and damages and that some of the things done were and continue to be defamatory of him.

5 The defendant counters that the claimant's termination was done in accordance with the termination provision in Clause 2 of his employment contract. It denied that the act of termination is in breach of the claimant's right to express himself, as evidenced by the matters in the report, or his freedom of thought and conscience or of the implied terms of trust and confidence in the claimant's contract of employment. Further, it denies that a statement issued by it, relative to the termination, was defamatory o f him.

6 The remedies sought by the claimant in his Further Amended Fixed Date Claim Form dated the 11 June, 2014 listed several declarations, orders and relief being sought. At the conclusion of the trial, it was then indicated that some of those matters were not being pursued. The claimant therefore seeks the following:

• “1. A declaration that the Defendant's action as evidenced by letter of termination dated 20 ^th May 2014 is a breach of the Claimant's right to freedom of expression as guaranteed by section 13 (3) (c) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011 (the Charter).

• 2. A Declaration that the Defendant's action as evidenced by statement of the 20 ^th May 2014 posted on its website http://myspot.mona.uwi.edu/marcom/newsroom/entry/5708 on the 20 ^th May 2014 and continuing is in breach of the Claimant's right to freedom of expression as guaranteed by section 13 (3) (c) of the Charter of Fundamental Rights and freedoms (Constitutional Amendment) Act 2011 (the Charter).

• 3. A Declaration that the Defendant's action as evidenced by letter of termination dated the 20 ^th May 2014 is a breach of the claimant's right to freedom of thought as guaranteed by section 13 (3) (b) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011 (the Charter).

• 4. A Declaration that the Defendant's action as evidenced by statement of the 20 ^th May 2014 posted on its website http://myspot.mona.uwi.edu/marcom/newsroom/entry/5708 on the 20 ^th May 2014 and continuing is in breach of the claimant's right to freedom of thought as guaranteed by section 13 (3) (b) of the Charter of Fundamental Rights and Freedoms (Constitutional Rights and Freedoms (Constitutional Amendment) Act 2011 (the Charter).

• 5. A Declaration that the Defendant's statement of the 20 ^th May 2014 posted on its website http://myspot.mona.uwi.edu/marcom/newsroom/entry/5708 on the 20 ^th May 2014 and continuing is defamatory of the claimant.

• 6. An order that the letter of the 20 ^th May 2014 is null and void and of no effect and is to be quashed or is not otherwise enforceable or to be treated as effective against the Claimant in that the purported termination is in breach of the implied term of trust and confidence contained in the contract of employment dated 19 ^th December, 2012.

• 7. Damages

• 8. Aggravated Damages

• 9. Damages for Breach of contract including:

  • (a) Stigma Damages and/or Damages for loss of reputation.

  • (b) Damages for loss of advantage on the labour market.

• 10. Constitutional and vindicatory Damages

• 11. Costs to the Claimant to be taxed if not agreed; and

• 12. Such further and other relief as this Honourable Court may deem just.”

7 The evidence given in this matter lasted some ten (10) days but ultimately there was not much dispute about certain underlying facts deemed relevant. Thus, there is not much challenge to the circumstances leading to the existence of an employment contract between the parties. There is also no dispute as to the sequence of events leading up to the termination of it.

8 There was acceptance and acknowledgement of the fact that the claimant is a well-respected and seasoned professional with a distinguished career in academia and medicine. He is re-known for being one of the pioneers in the clinical infectious disease practice in the Caribbean and is regarded as a leading medical authority on the HIV epidemic in the Caribbean. It is further admitted that he is known to have provided care for persons living with HIV and AIDS and had a specialist medical practice at the University Hospital of the West Indies as well as in small private clinics in Kingston, Jamaica.

9 It is not disputed that in the year 2000 the claimant was appointed by the then Vice-Chancellor of the defendant as the Focal Point for HIV/AIDS in a regional project aimed at strengthening the institutional response to HIV/AIDS and sexually transmitted diseases in the Caribbean.

10 The claimant's explanation as to the beginnings of his involvement with CHART was not challenged. He was invited by a United States Government team to lead the Regional Co-ordinating Unit of the CHART initiative which became part of the outreach to the CARICOM countries by the International Training and Education Centre on HIV (now called the International Training and Education Centre for Health) directed from the University of Washington at Seattle and funded by grants from the United States Agency for International Development (USAID), the US based Health Resources and Services Administration (HRSA) and the US Centres for Disease Control and Prevention (CDC).

11 The Regional Co-ordinating Unit of CHART was in 2003 established in the Department of Community Health and Psychiatry on the Mona Campus of the defendant under the direction of the claimant, who then held the position of Professor of Community Health in that department. It is accepted that upon the return of Professor Eon Nigel Harris to the defendant, in the position of Vice Chancellor, the claimant approached him with the request that the newly formed CHART programme be re-located to the Vice-Chancellery from the jurisdiction of the Mona Campus. This request was acceded to and although the claimant was reluctant when giving his evidence to limit the programme to being defined as a “UWI programme,” it was a programme that was managed within the defendant, run on behalf of the defendant and with the blessing of the defendant. Significantly, also, funds received from donors for the programme was disbursed through the defendant. Indeed, the programme was also referred to as “UWI-CHART”.

12 The claimant also was Director of the Caribbean Health Leadership Institute (“CHLI”) which was managed from offices on the Mona Campus of the defendant. In performance of this as well as his duties as Director of CHART, the claimant communicated with the defendant through the office of the Vice-Chancellor; either to the Vice-Chancellor...