Judgments

[1994] 3 .F.C. 298

T-158-93

Mary Pitawanakwat (Applicant)

v.

Attorney General of Canada, Department of Secretary of State and Canadian Human Rights Commission (Respondents)

and

Minority Advocacy and Rights Council and The Native Women’s Association of Canada (Interveners)

T-162-93

Canadian Human Rights Commission (Applicant)

v.

Department of the Secretary of State and Mary Pitawanakwat (Respondents)

and

Minority Advocacy and Rights Council and The Native Women’s Association of Canada (Interveners)

Indexed as: Pitawanakwat v. Canada (Attorney General) (T.D.)

Trial Division, Gibson J.—Ottawa, March 9, 10 and April 20, 1994.

Human rights — Applications for judicial review of Human Rights Tribunal’s decision — Indian woman employed by Secretary of State fired after unsatisfactory performance appraisals — Tribunal finding prima facie case of discrimination based on race under Canadian Human Rights Act, s. 14(1)(c) — While not every explicit finding of harassment on prohibited ground of discrimination in matters related to employment will necessarily imply breach of s. 7, on facts herein and on reading of Tribunal’s decision Tribunal implicitly finding Department engaged in discriminatory practice, within s. 7 — Tribunal erred in ordering reinstatement outside Saskatchewan — That “recipe for disaster” to order reinstatement to former place of work Department’s problem, neither Tribunal’s nor Court’s concern — Tribunal erred in law in denying award for hurt feelings based on complainant’s conduct as effectively condoning discrimination based on prohibited ground.

Damages — Limiting principles — Human Rights Tribunal finding discrimination under Canadian Human Rights Act — Limiting compensation to 24 months’ lost wages less employment income, bursaries received during period — Goal of compensation under human rights legislation same as in tort law: to make victim whole — Common sense requiring some limits on liability from consequences of act — Double recovery violating principles plaintiff should not recover unless loss demonstrated, and only to extent of loss — Retention of bursary monies and recovery of lost wages double benefit — Bursary monies properly deducted provided not recoverable by payer where recipient receiving wage award.

These were applications for judicial review of a decision of a Canadian Human Rights Tribunal. Mary Pitawanakwat is an Ojibway woman. She was employed by the Department of the Secretary of State at Regina, Saskatchewan from 1979 until 1986 when she was dismissed. She had received several unsatisfactory job performance appraisals and relations with her supervisors had deteriorated. The Tribunal found that she had been monitored differently than other employees, and that the differential treatment may have been, at least in part, racially motivated. It found that racial slurs, jokes and stereotyping did occur in the workplace during her tenure. It further found that discrimination was one of that factors that influenced the respondent in its dealings with the complainant, which conduct resulted in her eventual dismissal.

The Tribunal expressed concern over the Department’s lack of interest, understanding or inclination to respond to repeated indicators about the possible existence of discrimination within its own office, characterizing the lack of response as gross negligence. A prima facie case for discrimination was found to have been established under Canadian Human Rights Act, paragraph 14(1)(c), which provides that it is a discriminatory practice in matters related to employment to harass an individual on a prohibited ground of discrimination. It was argued that this finding necessarily implied that the Department had also engaged in a discriminatory practice by refusing to continue to employ Pitawanakwat and by discriminating adversely against her in the course of employment on the same ground of discrimination (race), within section 7. That section provides that it is a discriminatory practice to refuse to continue to employ any individual or in the course of employment to differentiate adversely in relation to an employee on a prohibited ground of discrimination.

The Tribunal ordered reinstatement of Pitawanakwat in equivalent employment outside Saskatchewan, stating that it would be a “recipe for disaster” to reinstate her to her former position given the bitterness between the parties. It also awarded an amount equivalent to lost wages from the time of her dismissal for a twenty-four month period, but deducted any employment income and bursaries received during that period. No award was provided for hurt feelings “in light of the part played by the Complainant in the misfortunes suffered by her”. The issues were whether harassment on the basis of race constituted discrimination based on race; whether the Tribunal erred in law in capping the damage award at 24 months, in failing to order reinstatement at the complainant’s former place of work, in deducting bursary monies from the damage award and in failing to order a remedy for hurt feelings.

Held, the application should be allowed and the matter referred back to the Tribunal for redetermination in accordance with these reasons.

Not every explicit finding of harassment of an individual on a prohibited ground of discrimination in matters related to employment will necessarily imply a breach of section 7, but on the facts herein and on a reading of the Tribunal’s decision as a whole, the Tribunal implicitly found that the Department had engaged in a discriminatory practice, within Canadian Human Rights Act, section 7 by refusing to continue to employ Pitawanakwat and by differentiating adversely against her in the course of employment on a prohibited ground of discrimination.

The Tribunal erred in law in failing to give any explanation for its determination that twenty-four months was an appropriate point at which to cap compensation in relation to lost wages. The principles enunciated by Marceau J.A. in Canada (Attorney General) v. Morgan applied. He stated that the goal in respect of compensation under human rights legislation is the same as in the law of torts: to make the victim whole for the damages caused by the act that is the source of liability. Common sense required that some limits be placed upon liability for the consequences flowing from an act. The Tribunal must redetermine this matter in accordance with the principles enunciated in Morgan.

The Tribunal erred as well in not ordering the reinstatement of Pitawanakwat to the office from which she had been removed. Paragraph 53(2)(b) permits the Tribunal to order the person found to have engaged in the discriminatory practice to make available to the victim, on the first reasonable occasion, such rights, opportunities or privileges as were denied the victim as a result of the practice. Limiting the order of reinstatement to offices outside Saskatchewan enfeebled the rights conferred by the Act on one who had been discriminated against by removal from employment on a prohibited ground of discrimination. The “recipe for disaster” was an issue to be dealt with by the Department that refused to continue to employ her on a prohibited ground of discrimination. It was not a justification for failing to grant the full remedy of reinstatement, where it has been acknowledged that reinstatement would be appropriate. Neither should subsection 54(2), which precludes orders containing a term requiring the removal of an individual from a position, be of concern to the Tribunal or the Court.

The Tribunal did not err in determining that bursary monies received when Pitawanakwat enrolled on a full-time basis in a post-secondary educational institution following removal from her employment and her voluntary termination of subsequent employment should be deducted from the award for lost wages. A plaintiff should not recover unless able to demonstrate loss, and then only to the extent of the loss. Double recovery violates this principle. If the applicant were able to retain the bursary monies and as well recover for her loss of wages, she would be receiving a double benefit. If, however, the bursary monies were recoverable by the payer where the recipient receives a wage award, the bursary monies should not be deducted from the wage award.

Subsection 53(3) permits a Tribunal to order compensation for hurt feelings as a result of a discriminatory practice. To deny an award for hurt feelings on the basis of the conduct of the complainant is to condone discrimination on the basis of a prohibited ground where the conduct of the complainant is less than exemplary. Subsection 53(3) should not be interpreted to produce such a result. In so interpreting that subsection, the Tribunal erred in law.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2, 3(1), 7, 14(1), 53(2),(3), 54(2).

Department of State Act, R.S.C., 1985, c. S-17.

CASES JUDICIALLY CONSIDERED

APPLIED:

Cluff v. Canada (Department of Agriculture), [1994] 2 F.C. 176 (T.D.); Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401; (1991), 85 D.L.R. (4th) 473; 92 CLLC 17,002; 135 N.R. 27 (C.A.); Ratych v. Bloomer, [1990] 1 S.C.R. 940; (1990), 69 D.L.R. (4th) 25; 30 C.C.E.L. 161; 3 C.C.L.T. (2d) 1; 107 N.R. 335; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; (1987), 40 D.L.R. (4th) 193; 27 Admin. L.R. 172; 8 C.H.R.R. D/4210; 87 CLLC 17,022; 76 N.R. 161.

REFERRED TO:

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 17 C.H.R.R. D/349; 149 N.R. 1; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; (1987), 40 D.L.R. (4th) 577; 8 C.H.R.R. D/4326; 87 CLLC 17,025; 75 N.R. 303.

APPLICATIONS for judicial review of a Canadian Human Rights Tribunal’s decision (Pitawanakwat v. Canada (Secretary of State) (1992), 19 C.H.R.R. D/110; 93 CLLC 17,007) finding a prima facie case of discrimination under Canadian Human Rights Act, paragraph 14(1)(c), capping compensation for lost wages at 24 months and deducting amounts received from employment and bursaries, ordering reinstatement but outside province in which complainant had worked, and making no award for hurt feelings. Applications allowed.

COUNSEL:

Peter C. Engelmann and Heather Gibbs for Mary Pitawanakwat.

Bruce W. Gibson and Mark R. Kindrachuck for Attorney General of Canada and Department of Secretary of State.

William F. Pentney for Canadian Human Rights Commission.

Raj Anand for interveners.

SOLICITORS:

Lynk, Engelmann & Gottheil, Ottawa, for Mary Pitawanakwat.

Deputy Attorney General for Attorney General of Canada and Department of Secretary of State.

Canadian Human Rights Commission, Legal Department, for Canadian Human Rights Commission.

Scott & Aylen, Ottawa, for interveners.

The following are the reasons for order rendered in English by

Gibson J.:

NATURE OF APPLICATION AND RELIEF SOUGHT

These reasons relate to two applications commenced by originating notices of motion for judicial review of a decision of a Canadian Human Rights Tribunal rendered December 23, 1992 [(1992), 19 C.H.R.R. D/110], respecting a complaint presented by the applicant Mary Pitawanakwat (the principal applicant). The relief requested by the principal applicant is an order setting aside portions of the decision in question. The relief requested by the applicant Canadian Human Rights Commission is a writ of certiorari quashing portions of the decision or in the alternative setting aside the said portions of the decision and referring the matter back to the Human Rights Tribunal for determination in accordance with such directions as this Court considers to be appropriate.

By orders dated the January 10, 1994, the Minority Advocacy Rights Council and the Native Women’s Association of Canada were added as interveners in both matters.

THE FACTS

The principal applicant, Mary Pitawanakwat, is an Ojibway woman originally from the Manitoulin Island District in Ontario. Her education background includes grade 12 in the Ontario system plus a special program at the University of Toronto and a number of courses related to human and personal development.

In October of 1979, she commenced employment with the Department of Secretary of State[1] (the Department). Her work experience prior to her employment with the Department included work as an Ojibway language instructor, as a community development worker, and work with friendship centres and native counselling services.

She was employed by the Department as a social development officer at a program manager-4 level. Her place of employment was Regina, Saskatchewan. In her employment, she acted as a primary link between the Department and the community, particulary the aboriginal community. Her duties required a combination of administrative and field work, and a full knowledge of the individuals and organizations that constituted her “client” group and of the programs offered by the Department and by other departments and agencies of the federal government that might prove to be of interest to the client group.

In the early stages of her employment with the Department, things went well for both the principal applicant and the Department. In the summer of 1981, she received her first performance appraisal. It indicated that her work was fully satisfactory and that she met her work objectives. It contained recommendations indicating that the principal applicant needed to work on balancing her departmental administrative responsibilities and her external community work with her client groups.

The principal applicant’s second performance appraisal, which was completed in the spring of 1982, indicated that her performance was satisfactory. Problem areas were identified in meeting of deadlines and attention to detail.

Relationships between the principal applicant and her supervisors deteriorated. All subsequent performance appraisals of the principal applicant indicated that her performance was unsatisfactory. In March of 1986, the principal applicant was dismissed.

The Canadian Human Rights Tribunal (the Tribunal), in its decision, examined seven specific areas of the principal applicant’s work experience with the Department that were of concern to her. On the issue of workload, it concluded that the principal applicant’s was heavy but in normal circumstances, it was manageable. In the area of monitoring of the principal applicant’s work, the Tribunal found that the evidence supported her allegation that she was monitored in a manner different from other employees and found that there was [at page D/118] “some evidence to support the [principal applicant’s] allegation that her differential treatment may have been, at least in part, racially motivated.” The Tribunal found the principal applicant was not discriminated against in the area of training. It also found that the principal applicant was not discriminated against with respect to the issue of overtime and overtime policies. It also found that she was not discriminated against with respect to the issue of travel claims. The Tribunal found that the Department exercised “bad judgment” in two areas of tasking of the principal applicant and found that a breakdown in oral communication between the principal applicant and her supervisors resulted in the principal applicant being required to document, in written form, matters that were dealt with orally in relation to other social development officers. Finally, the Tribunal found that [at page D/121] “racial slurs, jokes and stereotyping did occur in the workplace during the [principal applicant’s] tenure.”

THE TRIBUNAL’S DECISION

The Tribunal expressed its conclusion in the following terms [at page D/136]:[2]

In the case before us, it certainly cannot be said with any degree of certainty that the discrimination alleged was the sole reason for the respondent’s conduct surrounding the events complained of, however, we are satisfied that discrimination was one of the factors that influenced the respondent in its dealings with the complainant, which conduct resulted in her eventual dismissal.

Although the direct evidence of discrimination in this case is limited, and although the racial slurs might never have continued had anybody bothered to protest their use within the context of the respondent’s work environment, the aspect of this case which has caused this Tribunal the most concern relates to the respondent’s lack of interest, understanding or inclination to respond to repeated indicators about the possible existence of discrimination within its own office. The Tribunal in the case of Hinds v. Canada (Employment and Immigration Commission) (1988), 10 C.H.R.R. D/5683 (at D/5694, para. 41619) (Can. Trib) held that the respondent’s “inaction did more damage since it left the impression with those concerned that this form of harassment was not even worthy of the commitment of investigative resources …. One gets the sense that the matter was treated as though it was considered a harmless joke … ”

For whatever reason, André Nogue chose to ignore not only the expressed concerns of the complainant herself but the concerns raised by Ernie Lawson, the union representative, by Ron Fisher, the conflict management consultant, and, most significantly, the detailed report of the Social Development Officer Task Force which all raised clearly concerns about the existence of discrimination within the respondent’s work environment. We are satisfied that racial discrimination may not have been, and likely was not, the driving force behind Mr. Nogue’s conduct in that regard, however, we are satisfied that it was one of the reasons for his inaction. As in the Hinds case, supra (at p. D/5697, at par. 41629), “there is no reason to believe that the lack of response by (the respondent) to the act of harassment was wilful. Rather it is better characterized as gross negligence.”

Turning to the question of remedies, the Tribunal stated in part [at page D/137]:

One got the impression that Ms. Pitawanakwat found it easier to blame others for the downward spiral in her productivity than to organize herself in a way which would have prevented her demise. That fact does not detract from the responsibility which the respondent must bear for the part it played in that demise. However, it is with those things in mind that the award of this Tribunal is reduced from what it might otherwise have been had the complainant not been seen as contributing to the sad state of affairs which existed during the period of her employ.

Against that background, the Tribunal found that [at page D/137] reinstatement of the principal applicant in her former position “would be a recipe for disaster.” It did, however, direct the Department to provide the principal applicant an offer of employment for the “next Social Development Officer PM-4 position available in any region outside Saskatchewan.” It also awarded the principal applicant an amount equivalent to her lost wages and benefits from the date of her dismissal for a period of twenty-four months with any employment income that she received during that twenty-four month period and any bursaries or grants that she received during the same period while enrolled in an educational institution, deducted from the wage award. A further deduction was provided in respect of any period of hospitalization during the award. Interest was provided on the wage award. No award was provided for hurt feelings [at page D/138] “in light of the part played by the complainant in the misfortunes suffered by her.” Finally, the Department was directed to provide to the principal applicant “a written apology for the part it played in the circumstances leading to her dismissal.”

Other remedies were provided and concerns were expressed where no formal remedies could be provided. However, those remedies and expressions of concern are not relevant to these proceedings.

ISSUES

The issues, as stated on behalf of the applicants, are in the following terms:[3]

1.   Standard of Review

What is the appropriate standard of judicial review in this case?

2.   Section 7

a)   Did the Tribunal misapply or fail to apply the proper standard of proof in finding there was no violation of Section 7 of the C.H.R.A.?

b)   Did the Tribunal err in finding that harassment on the basis of race does not constitute discrimination on the basis of race?

c)   Were the Tribunal’s findings of fact that there was no discrimination on the basis of race “perverse and capricious”?

3.   Remedies

a)   Did the Tribunal commit an error of law in capping the Complainant’s damage award at 24 months of salary?

b)   Did the Tribunal commit an error of law in failing to order reinstatement of the Complainant to her former place of work?

c)   Did the Tribunal commit an error of law in deducting Aboriginal study bursaries from the damage award?

d) Did the Tribunal commit an error of law in failing to order a remedy for hurt feelings?

The issues argued on behalf of the interveners are set out in their memoranda of fact and law (identical in both applications) in the following terms:

a) A violation of section 14(1)(c) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA) is also a violation of section 7(b) of the Act; harassment on the basis of race constitutes discrimination on the basis of race.

b) The rights guaranteed under the CHRA are quasi-constitutional. Remedies must be effective and consistent with the nature of the rights being protected.

c) Human rights legislation is not an extension of tort law. Common law principles of contributory negligence and reasonable foreseeability are not applicable in reducing remedies otherwise available under human rights legislation.

d) Reinstatement is the appropriate remedy for a person unjustly dismissed under the CHRA.

e) The Tribunal’s order has a discriminatory impact on the larger Aboriginal community and other disadvantaged peoples.

f) The Tribunal’s order violated section 2 of the CHRA, and sections 6, 7 and 15 of the Charter of Rights and Freedoms (Charter):

(aa) The Tribunal’s order requiring the Secretary of State to offer Pitawanakwat the first job available outside of Saskatchewan:

i) clearly denies her the equal opportunity to make for herself and her children the life that she is able and wishes to have in Saskatchewan.

ii) has a disparate effect on her because Aboriginal peoples have significantly fewer job opportunities than non-disadvantaged people and the order further reduces her ability to pursue the gaining of a livelihood in Saskatchewan. As such the order is analogous to exiling her from the Province of Saskatchewan. The order also perpetuates the disproportionate under representation of Aboriginal people in the Saskatchewan work force. It will result in a segregated work force.

iii) does not take into account the disparate effect of a geographical transfer on an Aboriginal person, a woman and a mother. Disadvantaged people may be particularly tied to a local community where they have an established support group.

(bb) The Tribunal, in refusing to order Pitawanawat’s (sic) reinstatement, adopted a lower standard of remedy than the one which prevails under other statutory regimes. This is inconsistent with the nature of the rights protected under the CHRA. Reinstatement is the appropriate remedy for a person unjustly dismissed under the CHRA. The order deprives minorities and Aboriginal peoples of the equal benefit and protection of the law and condones rather than discourages discriminatory practices in the workplace.

(cc) The Tribunal, in placing an arbitrary “cap” on Pitawanakwat’s award for lost wages did not provide her with an effective remedy. Once a discriminatory practice is found, a “make-whole” remedy should follow; it should place the person in the position she would have occupied but for the discriminatory practice. The order deprives Pitawanakwat of an effective remedy and violates section 2 of the CHRA and sections 7 and 15 of the Charter. The Tribunal failed to consider the fact that minorities, Aboriginal peoples and women have a more difficult time in acquiring employment.

As will be seen by what follows, a number of the interveners’ concerns were acknowledged to be, at least in part, well founded on behalf of the respondents the Attorney General of Canada and the Department. The evidence that was before the Tribunal impacted on certain of the other issues raised by the interveners so that those issues were difficult to argue on the facts of this case. The evidence indicated that, while the principal applicant was employed with the Department, she was in the top 1% with respect to earnings among aboriginal women in Canada. Within a few months of the termination of her employment with the Department, she gained employment with the Aboriginal Women’s Council of Saskatchewan, in Regina. She held her new employment until approximately one year after the date of her release from the Department. She voluntarily terminated her employment with the Aboriginal Women Council’s of Saskatchewan rather than move to Prince Albert, Saskatchewan when the Council moved its head office from Regina to that city. The evidence indicates that her salary with the Council was only approximately 10% less than her salary had been at the time of her termination by the Department.

ANALYSIS

a)         Standard of Review

The issues before me as earlier described in these reasons and as they remained after the argument on behalf of the respondents, the Attorney General of Canada and the Department, are, I think without question, questions of law. Having reached the same conclusion as to the issues in Cluff v. Canada (Department of Agriculture),[4] I made and adopted the following comments in the reasons for my order therein regarding the standard of review:

 … the following quotation from the reasons of La Forest J. in Canada (Attorney General) v. Mossop succinctly states the standard of review in this matter:

The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context. It does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal. They must, therefore, review the tribunal’s decisions on questions of this kind on the basis of correctness, not a standard of reasonability.

In reviewing the decision of the Tribunal herein “on the basis of correctness”, the following extract from the reasons of La Forest J. in Robichaud v. Canada (Treasury Board) is generally instructive:

The purpose of the Act is set forth in s. 2 as being to extend the laws of Canada to give effect to the principle that every individual should have an equal opportunity with other individuals to live his or her own life without being hindered by discriminatory practices based on certain prohibited grounds of discrimination, including discrimination of the ground of sex. As McIntyre J., speaking for this Court, recently explained in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, the Act must be so interpreted as to advance the broad policy considerations underlying it. That task should not be approached in a niggardly fashion but in a manner befitting the special nature of the legislation, which he described as “not quite constitutional”; see also Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, per Lamer J., at pp. 157-58. By this expression, it is not suggested, of course, that the Act is somehow entrenched but rather that it incorporates certain basic goals of our society. More recently still, Dickson C.J. in Canadian National Railway Co v. Canada (Canadian Human Rights Commission) (the Action Travail des Femmes case), [1987] 1 S.C.R. 1114, emphasized that the rights enunciated in the Act must be given full recognition and effect consistent with the dictates of the Interpretation Act that statutes must be given such fair, large and liberal interpretation as will best ensure the attainment of their objects.

It is worth repeating that by its very words, the Act (s. 2) seeks “to give effect” to the principle of equal opportunity for individuals by eradicating invidious discrimination. It is not primarily aimed at punishing those who discriminate. McIntyre J. puts the same thought in these words in O’Malley at p. 547.

The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant.

Since the Act is essentially concerned with the removal of discrimination, as opposed to punishing anti-social behaviour, it follows that the motives or intention of those who discriminate are not central to its concerns. Rather, the Act is directed to redressing socially undesirable conditions quite apart from the reasons for their existence.[5]

I conclude that the foregoing comments apply equally to the matter now before me.

b)         Discrimination and Harassment

The following provisions of the Canadian Human Rights Act[6] are relevant to this issue.

Section 2 reads as follows:

2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

Subsection 3(1) reads as follows:

3. (1) For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability and conviction for which a pardon has been granted are prohibited grounds of discrimination.

Section 7 reads as follows:

7. It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee,

on a prohibited ground of discrimination.

Subsection 14(1) reads in part as follows:

14. (1) It is a discriminatory practice,

…

(c) in matters related to employment,

to harass an individual on a prohibited ground of discrimination.

At page D/131 of its decision,[7] the Tribunal made the following explicit finding: “The tribunal finds, however, that a prima facie case for discrimination has been established under s. 14(1)(c) of the Canadian Human Rights Act.” There is no question on the facts of this matter that the prohibited ground of discrimination on which the principal applicant was harassed in matters related to employment was “race.” Counsel for the applicants argued before me that this finding necessarily implied that the Department had also engaged in a discriminatory practice against the principal applicant by refusing to continue her in employment and by differentiating adversely in relation to her in the course of employment on the same prohibited ground of discrimination, within the meaning of section 7.

Counsel for the respondents the Attorney General of Canada and the Department conceded in respect of this argument. At page 3 of the transcript of respondent counsel’s argument before me, counsel is reported as stating:

I acknowledge that clearly the tribunal’s reasons are not explicit with respect to section 7, but in my submission it’s a necessary inference that the tribunal regarded harassment on the basis of race as discrimination on the basis of race, and indeed it must have concluded that the complainant lost her employment as a result of a discriminatory practice because it made orders pursuant to section 53 with respect to providing a new position and with respect to compensation for lost earnings.

In support of this position, counsel for the respondents cited the following two passages from the Tribunal’s decision:

In the case before us, it certainly cannot be said with any degree of certainty that the discrimination alleged was the sole reason for the respondent’s conduct surrounding the events complained of, however, we are satisfied that discrimination was one of the factors that influenced the respondent in its dealings with the complainant, which conduct resulted in her eventual dismissal.[8]

And further:

We are satisfied that racial discrimination may not have been, and likely was not, the driving force behind Mr. Nogue’s conduct in that regard, however, we are satisfied that it was one of the reasons for his inaction.[9]

I agree with counsel for the respondents. Reading the Tribunal’s decision as a whole, it must be concluded that the Tribunal implicitly found that the Department engaged in a discriminatory practice, within the meaning of section 7 of the Canadian Human Rights Act, against the principal applicant by refusing to continue her in employment and by differentiating adversely in relation to her, in the course of employment, on a prohibited ground of discrimination, that is to say, race. This is not to say that every explicit finding of harassment of an individual on a prohibited ground of discrimination in matters related to employment will necessarily imply a breach of section 7. However, as I have indicated, on the facts of this case and on a reading of the Tribunal’s decision as a whole, I am satisfied that such a finding by implication is fully warranted.

c)         Capping of the principal applicant’s compensation for loss of salary at twenty-four (24) months’pay

The relevant portions of subsection 53(2) of the Canadian Human Rights Act read as follows:

53. …

(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, it may, subject to subsection (4) and section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in that order any of the following terms that it considers appropriate:

…

(c) that the person compensate the victim, as the Tribunal may consider proper, for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice; and

Neither subsection 53(4) nor section 54 is applicable to the facts of this case in respect of this issue.

On the face of its decision, the Tribunal provides absolutely no explanation as to how it arrived at the period of twenty-four months as an appropriate period in relation to an award for loss of wages.

It was common ground among counsel before me that the Tribunal erred in law in failing to provide any explanation for its determination that twenty-four (24) months was an appropriate point at which to cap compensation. By contrast, there was not common ground as to whether or not the discussion by Mr. Justice Marceau, in Canada (Attorney General) v. Morgan[10] was appropriate to the facts of this case. Counsel for the principal applicant argued that the facts in the Morgan case were distinguishable and therefore that the principles enunciated by Mr. Justice Marceau could not be adopted without reservation. I disagree. While the facts in the Morgan case may be distinguishable, I conclude that the principles enunciated therein apply with equal force to the facts of this case. At pages 414-416 of the Morgan decision, Mr. Justice Marceau, speaking as part of the majority of the Court stated:

(a) Reading the comments of the Chairman of the initial Tribunal and those of the Review Tribunal majority, I am afraid, I say it with respect, that there exists some confusion between the right to obtain reparation for a damage sustained and the assessment of that damage. While the particular nature of the human rights legislation—which has been said to be so basic as to be near-constitutional and in no way an extension of the law of tort (see e.g. Robichaud v. Brennan (sub nom. Robichaud v. Canada (Treasury Board) , [1987] 2 S.C.R. 84, at page 89, and Bhadauria v. Board of Governors of Seneca College (sub nom. Seneca College of Applied Arts and Technology v. Bhadauria), [1981] 2 S.C.R. 181)”renders unjustifiable the importation of the limitations of the right to obtain compensation applicable in tort law, the assessment of the damages recoverable by a victim cannot be governed by different rules. In both fields, the goal is exactly the same: make the victim whole for the damage caused by the act source of liability. Any other goal would simply lead to an unjust enrichment and a parallel unjust impoverishment. The principles developed by the courts to achieve that goal in dealing with tort liability are therefore necessarily applicable. It is well known that one of those principles has been to exclude from the damages recoverable the consequences of the act that were only indirect or too remote. In my view, the minority member was perfectly right in writing (at pages D/74- D/75):

If reinstatement is purely discretionary and compensation is less so then it seems to me certain well-known accepted principles of compensatory damages should guide the Tribunal in assessing or quantifying the financial loss. The principles are quoted with approval by the Review Tribunal in the Foreman (Can. Rev. Trib.) case, supra, [Foreman v. Via Rail Canada Inc. (1980), 1 C.H.R.R. D/233] as follows at para. 7716 [D/869 of Torres, supra]:

In our view the use of the language of “compensation” by the Canadian Act implies that tribunals are to apply the principles applied by courts when awarding compensatory damages in civil legislation. The root principle of the civil law of damages is “restitutio in integrum”: the injured party should be put back into the position he or she would have enjoyed had the wrong not occurred, to the extent that money is capable of doing so, subject to the injured party’s obligation to take reasonable steps to mitigate his or her losses. (D/238).

In a recent case, Canada (Attorney General) v. McAlpine, supra, [[1989] 3 F.C. 530] the Federal Court of Appeal, on appeal from a decision of a human rights tribunal which relied on that principle in assessing damages for lost U.I.C. benefits, commented as follows at p. 538 [para.13, D/258]:

… the proper test must also take into account remoteness or foreseeability where the action is one of contract or tort. Only such part of the loss resulting as is reasonably foreseeable is recoverable.

The Federal Court goes on to quote with approval from Professor Cumming in the Torres case, supra [Torres v. Royalty Kitchenware Ltd. (1982), 3 C.H.R.R. D/858 (Ont. Bd. Inq.)], with respect to a cut-off point in awarding general damages, and notes the rationale quoted was followed by the Review Tribunal in DeJager v. Canada (Dept. of National Defence) (No. 2), supra [(1987), 8 C.H.R.R. D/3963], at D/3966 and D/3967, and also in other decisions where human rights tribunals have accepted the doctrine of reasonable foreseeability as a necessary component in the assessment of damages.

It follows from the interpretation I have placed on the remedial provisions of the Act the duration of the compensatory period need not coincide with the reinstatement whenever it may occur. Much less that it is automatically determined by the order for reinstatement. This is the crux of the matter on which I part company with my colleagues. I would agree that if the victim of the discriminatory act were fired from a position he actually occupied and if reinstatement were to take place soon thereafter the duration of the compensatory period would logically coincide with that happening. What we have here, on the other hand, is a notional loss of a position in which the respondent was not employed when the discriminatory act occurred.

I think one should not be too concerned by the use of various concepts in order to give effect to the simple idea that common sense required that some limits be placed upon liability for the consequences flowing from an act, absent maybe bad faith. Reference is made at times to foreseeable consequences, a test more appropriate, it seems to me, in contract law. At other times, standards such as direct consequences or reasonably closely connected consequences are mentioned. The idea is always the same: exclude consequences which appear down the chain of causality but are too remote in view of all the intervening facts. Whatever be the source of liability, common sense still applies.

It has been found, I know, that the practice developed in cases of wrongful dismissal with respect to the assessment of the lost wages was not necessarily applicable to cases of job loss attributable to discriminatory treatment. Note that, in cases of wrongful dismissal, the act for which the employer is reproached is not to have put an end to the employment but to have done so without proper notice or in contravention of the terms of a contract. The nature of the act source of liability is different, therefore the consequence flowing from it ought to be different.

In my view, the initial Tribunal and the majority members of the Review Tribunal were wrong in refusing to establish a cap or cut-off point for the period of compensation, independent of the order of reinstatement. The establishment of that cut-off point was, as it is in all such cases, a difficult exercise requiring a careful analysis of the circumstances of the case.

While the concepts of remoteness and foreseeability are clearly enunciated in the foregoing quotations, two other concepts are also highlighted by Mr. Justice Marceau. He states that the goal in respect of compensation under human rights legislation and applicable in tort law is the same, that is, to make the victim whole for the damages caused by the act that is the source of liability. Further, he states that “common sense” requires that some limits be placed upon liability for the consequences flowing from an act.

In the light of the lack of any indication that any of the foregoing principles were considered by the Tribunal in arriving at the twenty-four month cap to compensation that it applied, I conclude that the Tribunal erred in law and that its decision in this respect must be referred back for determination of the compensation in accordance with the principles enunciated in Morgan.

d)         Reinstatement

The relevant portions of subsection 53(2) of the Canadian Human Rights Act in relation to this issue read as follows:

53. …

(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, it may, subject to subsection (4) and section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in that order any of the following terms that it considers appropriate:

…

(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, such rights, opportunities or privileges as, in the opinion of the Tribunal, are being or were denied the victim as a result of the practice;

Subsection 53(4) is not relevant for the purpose of this issue. By contrast, subsection 54(2) is relevant. It provides that no order under subsection 53(2) may contain a term requiring the removal of an individual from a position if that individual accepted employment in that position in good faith.

It will be recalled that the Tribunal, in its decision, ordered reinstatement of the principal applicant in equivalent employment outside the province of Saskatchewan. Its rationale for not ordering reinstatement of the principal applicant in the Regina office of the Department was [at page D/137] “that such a reunion would be a recipe for disaster. There is clearly far too much bitterness between the parties to think that reinstatement of the complainant to her former job is workable.”

In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission)[11] Chief Justice Dickson stated, at page 1134:

Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. [Underlining added for emphasis.]

The explanation of the Tribunal for limiting its order of reinstatement of the principal applicant to offices of the Department outside of Saskatchewan was, I conclude, a ways or means, however well intended, of enfeebling the proper impact of rights conferred by the Canadian Human Rights Act on those, such as the principal applicant, who have been discriminated against by removal from employment on a prohibited ground of discrimination. The “recipe for disaster” envisaged by the Tribunal is an issue to be dealt with by the Department that refused to continue to employ her on a prohibited ground of discrimination. It is not a justification for failing to grant to the principal applicant the full remedy of reinstatement, where it is acknowledged by the Tribunal that reinstatement is appropriate.

That subsection 54(2) might limit the Department’s capacity within existing complement to make room for the principal applicant in its Regina office should also not be a matter of concern to the Tribunal or to this Court. That remains a matter for the Department to deal with in whatever way it considers appropriate and within its authority.

For the foregoing reasons, the Tribunal having concluded that reinstatement was an appropriate remedy on the facts of this case, I conclude that it erred in law in failing to order reinstatement of the principal applicant to the office from which she was removed contrary to section 7 of the Canadian Human Rights Act.

e)         Deduction of the Aboriginal Study Bursaries

As indicated earlier in these reasons, the Tribunal required that “bursaries or grants” received by the principal applicant when she enrolled on a full-time basis in a post-secondary educational institution following her removal from her employment with the Department and her voluntary termination of her subsequent employment should be deducted from the award for lost wages.

In Ratych v. Bloomer[12] Madam Justice McLachlin, speaking for the majority of the Supreme Court of Canada enunciated the following general principles [at page 981]:

The general principles underlying our system of damages suggest that a plaintiff should receive full and fair compensation, calculated to place him or her in the same position as he or she would have been had the tort not been committed, in so far as this can be achieved by a monetary award. This principle suggests that in calculating damages under the pecuniary heads, the measure of the damages should be the plaintiff’s actual loss. It is implicit in this that the plaintiff should not recover unless he can demonstrate a loss, and then only to the extent of that loss. Double recovery violates this principle. It follows that where a plaintiff sustains no wage loss as a result of a tort because his employer has continued to pay salary while he was unable to work, he should not be entitled to recover damages on that account.

While the foregoing principles are enunciated in the context of damage claims based on tort liability, they are instructive on the facts of this case taking into account the passage quoted above from Canada (Attorney General) v. Morgan.[13] It is clear that the principal applicant would not have been in a position to benefit from the bursaries in question if she had remained fully committed in her employment with the Department. A condition of the bursaries was that she be in full-time attendance at a post-secondary educational institution. Fulfilment of that condition was clearly incompatible with full-time employment.

Against the principle that a plaintiff (in this case a complainant) should not recover unless she can demonstrate a loss, and then only to the extent of that loss, and the principle that double recovery violates the foregoing principle, I conclude that the Tribunal did not err in determining that the bursary monies should be deducted from the award for lost wages. To the extent of the bursary monies, the principal applicant did not suffer a loss. In fact, she benefitted in that the bursary monies relieved her of the obligation to seek out whatever employment was available or to go on welfare to support herself and her family and allowed her to further her education in a way that would not have been possible had she remained in full-time employment. If the principal applicant were able to retain the bursary monies and as well recover for her loss of wages, she would in effect be receiving a double benefit, equivalent to double recovery against the principles enunciated by Madam Justice McLachlin.

There remains one issue on this question. Evidence that was before the Tribunal does not establish whether or not the bursary monies are recoverable by the payer in circumstances where the principal applicant receives a wage award. If that were to be the case, then clearly, once again against the foregoing principles, the bursary monies should not be deducted from the wage award.

f)          A Hurt Feelings Award

Subsection 53(3) of the Canadian Human Rights Act reads in part as follows:

53. …

(3) In addition to any order that the Tribunal may make pursuant to subsection (2), if the Tribunal finds that

…

(b) the victim of the discriminatory practice has suffered in respect of feelings or self-respect as a result of the practice,

the Tribunal may order the person to pay such compensation to the victim, not exceeding five thousand dollars, as the Tribunal may determine.

In this case the Tribunal [at page D/138] made no award for hurt feelings “in light of the part played by the complainant in the misfortune suffered by her.”

It was not disputed on behalf of the Department that the principal applicant had suffered “in respect of feelings or self-respect as a result of the discriminatory practice.” The sole issue then, was the determination by the Tribunal that the principal applicant should not be entitled because of what it considered to be her contribution to the situation in which she found herself.

While no authority was cited to me for the principle that conduct of a complainant should not be a consideration in determining whether a hurt feelings award should be made, such a principle is consistent with the view that where a determination of discrimination on the basis of a prohibited ground is made, an award should be provided that is structured, in so far as possible, to make the complainant whole. To deny an award for hurt feelings on the basis of the conduct of the complainant is, in effect, to condone discrimination on the basis of a prohibited ground where the conduct of the complainant is, for whatever reason in all the circumstances, less than exemplary.

I conclude that the Canadian Human Rights Act, and in particular subsection 53(3), should not be interpreted or applied to produce such a result. In so interpreting or applying that subsection, I conclude that the Tribunal, on the facts before it, erred in law.

THE POSITION OF THE INTERVENERS

While the foregoing analysis disposes of many of the issues raised by the interveners, it fails to take into account a number of the arguments presented on their behalf. I find that it is unnecessary to confront those arguments to effectively dispose of the issues before me. In the circumstances, and with some regret, I decline to comment further on the interveners’ argument.

CONCLUSION

In summary then, I find, against a standard of review of correctness, that

- the Tribunal implicitly found that the Department violated section 7 of the Canadian Human Rights Act by refusing to continue to employ the principal applicant and by differentiating adversely in relation to the principal applicant in the course of her employment, on a prohibited ground of discrimination, namely, race;

- the Tribunal committed an error of law in capping the complainant’s damage award at twenty-four (24) months’ salary without any analysis that would justify that particular cap or indeed, any other cap, against the principles enunciated in the Morgan case;[14]

- the Tribunal committed an error of law in failing to order reinstatement of the principal applicant to her former place of work or another place satisfactory to her;

- the Tribunal committed no error in providing for the deduction of Aboriginal study bursaries from the award provided for lost wages unless, in the circumstances of such an award, bursary monies are recoverable by the provider of those monies; and

- the Tribunal committed an error of law in failing to order a remedy for hurt feelings by reason only of the conduct of the principal applicant.

In the circumstances, I have ordered that this matter be returned to the same or a differently constituted Human Rights Tribunal for determination of an appropriate award for lost wages, based on an analysis against the principles set out in the Morgan[15] case, for the making of an appropriate order regarding reinstatement of the principal applicant to her former place of work or another place satisfactory to her, for determination of whether, in the circumstances of an appropriate award for lost wages, the Aboriginal study bursaries monies received by the principal applicant are recoverable by the provider of those monies and therefore should not be deducted from the award for lost wages, and for determination of an appropriate award, if any, for hurt feelings, without taking into account the conduct of the principal applicant.

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