A-638-87
Attorney General of Canada (Applicant)
v.
Carla Druken, Hilda Isbitsky, Myrna McMillan
and Jeanne Bérubé (Respondents)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. DRUKEN
Court of Appeal, Heald, Mahoney and Stone
JJ.—Toronto, June 13 and 14; Ottawa, August 15,
1988.
Human rights — Unemployment insurance benefits denied
to persons employed by husbands or companies, more than
40% voting shares of which controlled by husbands — Wheth
er Canadian Human Rights Tribunal correct in ordering CEIC
to pay unemployment insurance benefits, compensation for
hurt. feelings and to cease applying ss. 3(2)(c) and 4(3)(d) of
Unemployment Insurance Act, 1971, as discriminatory —
Application for review dismissed — When Canadian Human
Rights Act coming into force in 1977 those paragraphs of U.I.
Act repealed by implication.
Unemployment insurance — Unemployment insurance ben
efits denied to persons employed by husbands or companies,
more than 40% voting shares of which controlled by husbands
— Canadian Human Rights Tribunal ordering CEIC to pay
U.I. benefits, compensation for hurt feelings and to cease
applying provisions of U.I. Act — Ss. 3(2)(c) and 4(3)(d) of Act
and s. 15(a) of Regulations repealed by implication when
Canadian Human Rights Act coming into force in 1977.
The respondents were denied unemployment insurance ben
efits under paragraphs 3(2)(c) and 4(3)(d) of the Unemploy
ment Insurance Act and paragraph 14(a) of the Regulations
because they were employed by their husbands or by compa
nies, more than 40% of the voting shares of which, were
controlled by their husbands. A tribunal established under the
Canadian Human Rights Act ordered the Canadian Employ
ment and Immigration Commission to pay the respondents
unemployment insurance benefits, $1,000 compensation each
for hurt feelings and to cease enforcing those provisions of the
legislation.
There were two issues upon this application for judicial
review. The first was as to whether the Tribunal erred in
ordering the CEIC to cease applying paragraphs 3(2)(c),
4(3)(d) of the Act and paragraph 14(a) of the Regulations,
thereby effectively declaring them inoperative. The second issue
was whether it erred in concluding that there was no justifica
tion for the denial of benefits which would bring the dis
criminatory practice within the exception of paragraph 14(g).
The applicant argued that: (1) the Human Rights Act is not
paramount over another Act of Parliament, (2) an ad hoc
tribunal does not have the power to make an order rendering
legislation inoperative, and (3) the Tribunal erred in ordering
the CEIC to pay each respondent $1,000 compensation for hurt
feelings.
Held, the application should be denied.
(1) The rule appears to be that when human rights legisla
tion cannot stand together with other legislation, a subsequent
inconsistent enactment does not repeal the subsisting human
rights legislation unless clearly stated to create an exception to
it. When human rights legislation is the subsequent enactment,
it does repeal, by implication, the other inconsistent legislation.
Both sections of the Act were enacted before and were
repealed, by implication, by the Canadian Human Rights Act
when it came into force, in 1977. The Tribunal's order render
ing the sections inoperative is consistent with paragraph
41(2)(a) of the Human Rights Act when it came into force, in
1977.
(2) The Tribunal's order rendering the sections inoperative
is consistent with paragraph 41 (2)(a) of the Human Rights Act
which expressly authorizes the Tribunal to order measures to
prevent the same or similar practices from occurring in future
by the person found to have engaged in it.
(3) The Tribunal did not commit a reviewable error by
ordering compensation for hurt feelings. Such awards, however,
are a cause of concern when the discriminatory practice was
mandated by an Act of Parliament and performed by officials
acting in good faith.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 2
(as am. by S.C. 1980-81-82-83, c. 143, s. 28(1)), 3 (as
am. idem, s. 2), 5, 14 (as am. idem, s. 7), 15 (as am.
idem, s. 8), 15.1 (as enacted idem, s. 9), 41 (as am.
idem, s. 20), 42.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
The Human Rights Act, 1974, S.M. 1974, c. 65;
C.C.S.M. H175, s. 6(1).
The Public Schools Act, R.S.M. 1970, c. P250, s. 39(2).
The Public Schools Act, 1980, S.M. 1980, c. 33;
C.C.S.M. P250, s. 50.
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c.
48, ss. 3, 4 (as am. by S.C. 1974-75-76, c. 80, s. 2), 17.
Unemployment Insurance Regulations, C.R.C., c. 1576,
s. I4(a).
CASES JUDICIALLY CONSIDERED
APPLIED:
Winnipeg School Division No. 1 v. Craton et al., [ 1985] 2
S.C.R. 150; Re: Schewchuck and Ricard; Attorney-Gen-
era! of British Columbia et al., Intervenors (1986), 28
D.L.R. (4th) 429 (B.C.C.A.).
CONSIDERED:
Re Singh, [ 1989] 1 F.C. 430 (C.A.); Bhinder et al. v.
Canadian National Railway Co. et al., [1985] 2 S.C.R.
561.
COUNSEL:
J. Grant Sinclair, Q.C. for applicant.
James M. Hendry and Cheryl L. Crane for
Carla Druken, Hilda Isbitsky, Myrna McMil-
lan and the Canadian Human Rights Com
mission.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Canadian Human Rights Commission,
Ottawa, for Carla Druken, Hilda Isbitsky,
Myrna McMillan and the Canadian Human
Rights Commission.
Jeanne Bérubé, Schefferville, Quebec, on her
own behalf.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The Attorney General of Canada
seeks to set aside the decision and award of a
tribunal appointed under the Canadian Human
Rights Act, S.C. 1976-77, c. 33, hereinafter the
"Human Rights Act". The tribunal received no
evidence as to and dismissed the complaint of the
respondent Bérubé; her complaint is not in issue in
this application. Stated briefly, the refusal of
unemployment insurance benefits to the other
respondents was found to have been denial of a
service customarily available to the general public
on a prohibited ground of discrimination. Druken
had been employed by her husband; Isbitsky and
McMillan had been employed by companies,'more
than 40% of the voting shares of which were
controlled by their husbands. The refusals of ben
efits were expressly mandated by provisions of the
Unemployment Insurance Act, 1971, S.C. 1970-
71-72, c. 48, and Regulations [Unemployment In
surance Regulations, C.R.C., c. 1576], hereinafter
the "U.I. Act" and "U.I. Regulations"..
By section 17 of the U.I. Act, entitlement to
benefits is contingent upon a claimant having been
employed in "insurable employment", a defined
term. The U.I. Act [s. 4 (as am. by S.C. 1974-75-
76, c. 80, s. 2)] provides:
3. (1) Insurable employment is employment that is not
included in excepted employment ...
(2) Excepted employment is
(c) employment of a person by his spouse;
(i) employment included in excepted employment by regula
tion under section 4.
4....
(3) The Commission may, with the approval of the Governor
in Council, make regulations for excepting from insurable
employment
(d) the employment of a person by a corporation if he or his
spouse, individually or in combination, controls more than
forty percent of the voting shares of that corporation;
Pursuant to paragraph 4(3)(d), the following regu
lation has been made:
14. The following employments are excepted from insurable
employment:
(a) employment of a person by a corporation if he or his
spouse, individually or in combination, controls more than 40
per cent of the voting shares of that corporation;
The Human Rights Act [s. 2 (as am. by S.C.
1980-81-82-83, c. 143, s. 28(1)); s. 3(1) (as am.
idem, s. 2); s. 14 (as am. idem, s. 7)] provides:
2. The purpose of this Act is to extend the present laws in
Canada to give effect, within the purview of matters coming
within the legislative authority of the Parliament of Canada to
the principle that every individual should have an equal oppor
tunity 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.
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.
5. It is a discriminatory practice in the provision of goods,
services, facilities or accommodation customarily available to
the general public
(a) to deny, or to deny access to, any such good, service,
facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
14. It is not a discriminatory practice if
(g) in the circumstances described in section 5 or 6, an
individual is denied any goods, services, facilities or accom
modation or access thereto or occupancy of any commercial
premises or residential accommodation or is a victim of any
adverse differentiation and there is bona fide justification for
that denial or differentiation.
While they were raised in the Attorney Gener
al's factum, arguments that the provision of unem
ployment insurance benefits is not a service cus
tomarily available to the general public and that
its denial, by virtue of paragraphs 3(2)(c) of the
U.I. Act and 14(a) of the U.I. Regulations, is
based on marital and/or family status, were not
pursued. The latter proposition seems so self-evi
dent as not to call for comment. As to the former,
the applicant appears to have found persuasive the
dictum expressed in Singh (Re), [1989] 1 F.C. 430
(C.A.) in which it was said by Hugessen J., deliv
ering the judgment of this Court, at page 440:
It is indeed arguable that the qualifying words of section 5
5. ... provision of ... services ... customarily available to
the general public
can only serve a limiting role in the context of services rendered
by private persons or bodies; that, by definition, services ren
dered by public servants at public expense are services to the
public and therefore fall within the ambit of section 5. It is not,
however, necessary to make any final determination on the
point at this stage and it is enough to state that it is not by any
means clear to me that the services rendered, both in Canada
and abroad, by the officers charged with the administration of
the Immigration Act, 1976 are not services customarily avail
able to the general public.
In any event, the tribunal's basic finding of fact
that the respondents were victims of a proscribed
discriminatory practice was not questioned. The
principal arguments concerned whether the tri-
bunal erred in ordering the Canada Employment
and Immigration Commission, the "CEIC", to
"cease applying sections 3(2)(c), 4(3)(d) and
Regulation 14A", thereby effectively declaring
them inoperative, and whether it erred in conclud
ing that there was not a bona fide justification for
the denial of benefits, thus bringing the dis
criminatory practice within the exception of para
graph 14(g). The former issue was presented on
two bases: (1) that the Human Rights Act is not
paramount over another Act of Parliament and (2)
that an ad hoc tribunal has not the power to
declare or make an order rendering legislation
inoperative. Two issues of lesser moment were also
dealt with: whether the tribunal erred in ordering
the CEIC pay each respondent $1,000 as compen
sation for hurt feelings, and whether it erred in
ordering it to pay each the benefit she would have
been entitled to had the impugned legislation not
been applied.
The respondents did deal in their factum with
the theory of implied repeal of a Human Rights
Act prohibition against discrimination by a later
statutory enactment; however, neither the tribunal,
nor counsel in argument, dealt with the possibility
that paragraphs 3(2)(c) and 4(3)(d) of the U.I.
Act had been implicitly repealed by the subsequent
enactment of the Human Rights Act. When, after
our hearing, it became apparent that implied
repeal of the UI provisions was an issue, written
argument was invited.
In supporting the paramountcy of the Human
Rights Act over the U.I. Act, the respondents
relied particularly on Winnipeg School Division
No. d v. Craton et al., [1985] 2 S.C.R. 150, in
which the Supreme Court of Canada was required
to resolve a conflict between subsection 6(1) of the
provincial The Human Rights Act, 1974, S.M.
1974, c. 65; C.C.S.M. H175, which prohibited
discrimination in employment on account of age,
and section 50 of The Public Schools Act, 1980,
S.M. 1980, c. 33; C.C.S.M. P250, which empow
ered a school board to fix a compulsory retirement
age for teachers at not less than 65 years. The
human rights legislation provided, in its material
part,
6 (1) Every person has the right of equality of opportunity ...
in respect of his occupation or employment ... and, without
limiting the generality of the foregoing ... [(a)] no employer
... shall refuse to employ, or to continue to employ ... that
person ... because of ... age ...
The Public Schools Act, 1980, provided:
50 A school board may fix a compulsory retirement age for
teachers employed by it but the compulsory retirement age
shall not be less than 65 years of age.
That was a re-enactment, in 1980, of a very simi
lar provision, subsection 39(2), enacted in 1970
[The Public Schools Act, R.S.M. 1970, c. P250].
39(2) The board of an area may fix a compulsory retirement
age for teachers employed by it; but the compulsory retirement
age shall not be less than sixty-five years of age.
The Winnipeg School Division had, by collective
agreement, fixed the compulsory retirement date
at August 31 coinciding with or next following a
teacher's 65th birthday.
The judgment of the Court, delivered by McIn-
tyre J., defined the issue, at page 154,
Accordingly, there is only one issue in the case: is s. 50 of the
1980 Public Schools Act effective to create an exception to the
prohibition against discrimination on the basis of age set out in
s. 6(1) of The Human Rights Act?
He went on, at page 155:
The record discloses, as we have seen above, that s. 39(2) is
the first statutory enactment with which we are here concerned.
Had it not been for the 1980 consolidation, which included s.
50, no question would have arisen as to which provision would
govern. Section 6(1) of The Human Rights Act, enacted in
1974, was clearly a subsequent enactment and an express
prohibition against discrimination in employment on the basis
of age and, even setting aside the notion of any primacy for
human rights legislation, it would have prevailed and repealed
s. 39(2) by implication.
and, at page 156:
Human rights legislation is of a special nature and declares
public policy regarding matters of general concern. It is not
constitutional in nature in the sense that it may not be altered,
amended, or repealed by the Legislature. It is, however, of such
nature that it may not be altered, amended, or repealed, nor
may exceptions be created to its provisions, save by clear
legislative pronouncement. To adopt and apply any theory of
implied repeal by later statutory enactment to legislation of this
kind would be to rob it of its special nature and give scant
protection to the rights it proclaims. In this case it cannot be
said that s. 50 of the 1980 consolidation is a sufficiently express
indication of a legislative intent to create an exception to the
provisions of s. 6(1) of The Human Rights Act.
The rule appears to be that when human rights
legislation and other legislation cannot stand to
gether, a subsequent inconsistent enactment,
unless clearly stated to create an exception to it, is
not to be construed as repealing the subsisting
human rights legislation. On the other hand, when
the human rights legislation is the subsequent
enactment, it does repeal by implication the other
inconsistent legislation.
The circumstances here seem precisely those
which, it was said, would have led to disposition of
the Winnipeg School case on the basis of implied
repeal. Paragraph 3(2)(c) of the U.I. Act, a provi
sion of Canadian unemployment insurance legisla
tion since 1941, was last enacted in 1971 (S.C.
1970-71-72, c. 48, s. 3(2)(c)). Paragraph 4(3)(d),
continuing an exception first adopted in 1955, was
enacted in its present form in 1975 (S.C. 1974-75-
76, c. 80, s. 2). Neither has been subsequently
re-enacted. Both were among "the present laws of
Canada" when the Human Rights Act was enact
ed in 1977 (S.C. 1976-77, c. 33) with the intent
expressed in section 2 recited above.
In my opinion, this application is to be disposed
of on the basis that, in 1977, paragraphs 3(2)(c)
and 4(3)(d) of the U.I. Act were repealed by
implication upon the Human Rights Act coming
into force. I think it would be quite irregular for
this Court to deal with it on the hypothesis that
the U.I. provisions were enacted later. The effect
would be to give advisory opinions on whether, as
they stand, they are sufficiently clear legislative
pronouncements to create exceptions to the
Human Rights Act and, if not, as section 50 of the
Public Schools Act was not, whether the dis
criminatory practices they mandate are bona fide
justified. The objections to the remedies remain.
The authority of a Tribunal as to remedies is set
forth in section 41 [as am. by S.C. 1980-81-82-83,
c. 143, s. 20] of the Human Rights Act. Subsec
tion (1) deals with complaints found not to have
been substantiated and subsection (4) with com
plaints regarding discrimination based on physical
handicap. Only subsections (2) and (3) are in play.
41I....
(2) If, at the conclusion of its inquiry, a Tribunal finds that
the complaint to which the inquiry relates is substantiated,
subject to subsection (4) and section 42, it may make an order
against the person found to be engaging or to have engaged in
the discriminatory practice and include in such order any of the
following terms that it considers apropriate:
(a) that such person cease such discriminatory practice and,
in order to prevent the same or a similar practice from
occurring in the future, take measures, including
(i) adoption of a special program, plan or arrangement
referred to in subsection 15(1), or
(ii) the making of an application for approval and the
implementing of a plan pursuant to section 15.1,
in consultation with the Commission on the general purposes
of those measures;
(b) that such 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;
(c) that such person compensate the victim, as the Tribunal
may consider proper, for any or all of the wages that the
victim was deprived of and any expenses incurred by the
victim as a result of the discriminatory practice; and
(d) that such person compensate the victim, as the Tribunal
may consider proper, for any or all additional cost of obtain
ing alternative goods, services, facilities or accommodation
and any expenses incurred by the victim as a result of the
discriminatory practice.
(3) In addition to any order that the Tribunal may make
pursuant to subsection (2), if the Tribunal finds that
(a) a person is engaging or has engaged in a discriminatory
practice wilfully or recklessly, or
(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.
Sections 15.1 [as enacted by S.C. 1980-81-82-83,
c. 143, s. 9] and 42 and subsection 15(1) [as am.
idem, s. 8] have no application in the present
circumstances.
The remedies actually granted and order made
here were:
With regards to the expenses incurred by the Complainants,
the Tribunal makes the following award:
To Marna [sic] McMillan the sum of $425.00 for lost wages
while attending the hearings, lost interest and miscellaneous
expenses.
To Carla Druken the sum of $1,385.11 for legal fees, lost
income while at the hearing, interest, monies garnished from
wages and miscellaneous expenses.
To Hilda Isbitsky the sum of $300.00 for expenses including
photocopies.
With respect to the claim for injury to feelings and self-
respect under s. 41(3) of the Act, the evidence indicates that
the three Complainants who appeared before the Tribunal all
suffered from feelings of frustration, disillusionment and anger
as a result of treatment received. At the same time I am
satisfied that the Respondent believed that it was following the
requirements of the law and was justified in disentitling the
complainants. There was no evidence of any wanton, willful or
malicious acts on the part of the Respondent.
On the basis of the above, the Tribunal awards Marna [sic]
McMillan, Carla Druken and Hilda Isbitsky the sum of
$1,000.00 each to compensate for their feelings of self-respect
under section 41(3).
The complaints of Hilda Isbitsky, Marna [sic] McMillan and
Carla Druken are substantiated. The Complainants are entitled
to payment of the regular unemployment benefits that each
would have received but for the discontinuation. Any amounts
previously received and not repaid and any premiums refunded
are to be set off against the final award. Each successful
complainant is also awarded $1,000.00 for injury to feelings
and self respect. Each successful complainant is to receive
reimbursement for expenses in the amounts stated above.
It is ordered that the Respondent Canada Employment and
Immigration Commission cease the discriminatory practice of
applying Sections 3(2)(c), 4(3)(d) and Regulation I4A of the
Unemployment Insurance Act.
The issues as to the remedies and order raised by
the applicant were:
(i) Whether the Tribunal erred in law in making an order that
the CEIC cease applying sections 3(2)(c) and 4(3)(d) of the
U.I. Act and Regulation 14(a);
(ii) Whether the Tribunal erred in law in making an order that
the CEIC pay the complainants the unemployment insurance
benefits that they would have been entitled to but for the
application of sections 3(2)(c), 4(3)(d) of the U.I. Act and
Regulation I4(a); and
(iii) Whether the Tribunal erred in law in making an order
that the CEIC pay the complainants the sum of $1,000 each as
compensation for hurt feelings.
The Winnipeg School case began as an action in
a superior court for a declaration as to the invalidi
ty of the provision of the collective agreement that
implemented the statutory authority to impose
compulsory retirement at not less than age 65.
Thus, no question arose as to jurisdiction to
declare impugned legislation inoperative. How
ever, in Bhinder et al. v. Canadian National Rail
way Co. et al., [1985] 2 S.C.R. 561, a case dealing
with a discriminatory practice mandated by the
Canada Labour Code [R.S.C. 1970, c. L-1] and
regulations thereunder, Dickson C.J., at page 574,
in a judgment dissenting but not on this point,
described the tribunal's decision as follows:
The Tribunal determined that federal legislation and regula
tions were to be construed and applied in such a way as to be
consistent with the Canadian Human Rights Act. Thus, if the
policy of an employer is discriminatory under the Act, it will
not be rendered non-discriminatory simply by reason of there
being a statutory requirement mandating that policy. In effect,
the Tribunal held that federal legislation is inoperative to the
extent it conflicts with the Canadian Human Rights Act.
In arguing that the Tribunal erred in ordering
the CEIC to cease applying the impugned provi
sions, the Attorney General relies on the proposi
tion that such a tribunal has no jurisdiction to
make general declarations as to the validity of
legislation. The principle was well stated by
MacFarlane J.A., of the British Columbia Court
of Appeal in Re: Schewchuck and Ricard; Attor-
ney-General of British Columbia et al., Interven-
ors (1986), 28 D.L.R. (4th) 429, at page 439 ff.:
It is clear that the power to make general declarations that
enactments of Parliament or of the Legislature are invalid is a
high constitutional power which flows from the inherent juris
diction of the superior courts.
But it is equally clear that if a person is before a court upon a
charge, complaint, or other proceeding properly within the
jurisdiction of that court then the court is competent to decide
that the law upon which the charge, complaint or proceeding is
based is of no force and effect by reason of the provisions of the
Canadian Charter of Rights and Freedoms, and to dismiss the
charge, complaint or proceeding. The making of a declaration
that the law in question is of no force and effect, in that
context, is nothing more than a decision of a legal question
properly before the court. It does not trench upon the exclusive
right of the superior courts to grant prerogative relief, including
general declarations.
That may equally be said of a human rights
tribunal which finds legislation to mandate an
unjustified discriminatory practice or to have been
implicitly repealed by the enactment of the
Human Rights Act.
The Attorney General proceeded from the posi
tion that a tribunal has no power to make a
general declaration of invalidity to the proposition
that a tribunal has no right to order that legisla
tion, which it has found unjustifiably discriminato
ry in its necessary application, is not to be further
applied. The argument would be no different had
the offending legislation been found implicitly
repealed. In my view, such a limitation on a tribu
nal's power to make an order is inconsistent with
paragraph 41(2)(a) of the Human Rights Act
which expressly authorizes the tribunal to order
that measures be taken "in order to prevent the
same or a similar practice from occurring in the
future". That is not intended only to prevent repe
tition of the discriminatory practice vis à vis the
particular complainant; it is intended to prevent its
repetition at all by the person found to have
engaged in it. Thus the order that the CEIC cease
applying paragraphs 3(2)(c) and 4(3)(d) of the
U.I. Act and 14(a) of the U.I. Regulations appears
entirely apt. The only shortcoming is the Tribu-
nal's failure to stipulate that there be consultation
on the measures ordered between the CEIC and
the Canadian Human Rights Commission. Since
such consultation is an express requirement of the
Human Rights Act, it seems to me that it is to be
read into every order to take measures made pur
suant to paragraph 41(2)(a) and that its omission
is not fatal.
The next question is whether the tribunal erred
in ordering the CEIC to pay the respondents the
benefits to which they would have been entitled
had paragraphs 3(2)(c) and 4(3)(d) of the U.I.
Act and of the U.I. Regulations 14(a) not been
applied. In my opinion, that was not an error in
the present case because each of the respondents
had, in fact, been paid benefits and it was, there
fore, proper to infer that each was otherwise en
titled to benefits. The order seems to me to be
precisely the order called for in the circumstances.
It is simply an order that a right, denied on a
prohibited ground of discrimination, be made
available to the victims, as expressly authorized by
paragraph 41(2) (b).
That said, there are numerous grounds upon
which a claimant for employment insurance ben
efit may be disentitled or disqualified which may
not be properly ruled on by a human rights tri
bunal. In another case, when entitlement is not to
be inferred from the evidence, the proper order
would be to require the CEIC to process the claim
on the basis of such direction as the tribunal
considers appropriate.
I have perused the evidence upon which the
tribunal found that each respondent had "suffered
in respect of feelings". It is apparent that this
suffering was primarily consequent upon the
CEIC's attempts to recover benefits paid in the
cases of Isbitsky, Case, Vol. 2, pages 236-237 and
Druken, Vol. 3, page 385 ff. There is no suggestion
that recovery efforts were unreasonable. In the
case of McMillan, it was the trauma of losing the
only income in the household after the company's
bankruptcy which she described as "devastating",
Case, Vol. 1, page 83 ff. It was not argued that, as
a matter of public policy, such awards ought not
have been made when the discriminatory practice
giving rise to the hurt feelings was mandated by an
Act of Parliament and occasioned by the CEIC
doing no more than its duty as it, not only honestly
but without option, understood it to be. While
these awards give me concern, I am unable to
conclude that, in making them, the Tribunal com
mitted an error reviewable under section 28 of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10].
I would dismiss this section 28 application.
HEALD J.: I concur.
STONE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.