Digests

Human Rights

Judicial review of Canadian Human Rights Tribunal decision regarding appropriate remedies under Canadian Human Rights Act, R.S.C., 1985, c. H-6 payable to group of about 413 medical adjudicators in Canada Pension Plan Disability Benefits Program—Medical adjudicators (complainants) consisting of registered nurses working with medical advisors—Tribunal earlier concluding that complainants had been discriminated against regarding job classification on basis of gender contrary to Act, ss. 7, 10—However, concluding that despite discrimination suffered, complainants failing to prove lost wages on balance of probabilities or providing evidence of pain, suffering among majority of complainants—Tribunal erring in law by requiring that complainants prove quantum of wages lost on balance of probabilities—Tribunal having duty to assess lost income or wage loss on material before it or refer issue back to parties to prepare better evidence on what wage loss would have been but for discriminatory practice—Moreover, Tribunal’s apparent post hoc demand for individual evidence from each of complainants breaching procedural fairness—Even if individual evidence would have been helpful or even legally required, by explicitly telling parties that no additional evidence required, Tribunal breaching complainants’ right to natural justice, fair hearing by then relying on lack of evidence to find thereagainst on pain, suffering—Since Tribunal empowered to accept evidence of various forms, including hearsay, could have found that evidence from some individuals could be used to determine pain, suffering of group—Applications allowed.

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) (T-1016-09, T-1025-09, 2010 FC 1135, Kelen J., judgment dated November 12, 2010, 34 pp.)