A-533-90
Canada Employment and Immigration Commis
sion (Applicant)
v.
Ina Lang and the Canadian Human Rights Com
mission (Respondents)
INDEXED AS: CANADA (EMPLOYMENT AND IMMIGRATION
COMMISSION) v. LANG (CA.)
Court of Appeal, Pratte, Stone and Linden
JJ.A.—Winnipeg, April 9 and 12, 1991.
Human rights — Application for "Challenge 1986" grant to
hire daughter as summer student — Canada Employment and
Immigration Commission refusing application under policy of
denying grant to hire member of employer's immediate family
— Blanket policy prima facie discriminatory — CHRC award
of damages for hurt feelings set aside as founded in neither
law nor fact.
The respondent, Lang, applied to the Canada Employment
and Immigration Commission for a grant, under the "Chal-
lenge 1986" program, to hire her daughter as a summer student
to run her day care centre. The program provided subsidies of
$1,000 for each summer job to employers who would then pay
the balance of the student's salary for a 10—week period.
The official who dealt with the application noted on the file
that the applicant would not consider employing anyone other
than her daughter. The application was refused under a policy
which provides that no contribution would be paid in respect of
an employee who was a member of the employer's immediate
family.
A complaint was made to the Canadian Human Rights
Commission. The Commission ruled that there had been dis
crimination on the ground of family status, contrary to section
5 of the Canadian Human Rights Act, and made an award of
$1,000 for hurt feelings, plus interest, for a total of $1,566.24.
This was an application under section 28 of the Federal Court
Act against that decision.
Held, the application should be allowed as to the award of
damages.
All that is required for a finding of discrimination on a
prohibited ground is that discrimination be one reason for the
decision; it need not be the only reason: Holden v. Canadian
National Railway. Here, there was evidence upon which the
Tribunal could base a finding of discrimination on the ground
of family status.
Blanket provisions such as those in the applicant's anti-nepo
tism policy are prima facie discriminatory.
The award of damages was without legal or factual founda
tion. The amount awarded was not lost "wages", nor was it
proved to be "expenses incurred by the victim", within para
graph 53(2)(c) of the Act.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 5,
53(2)(c).
CASES JUDICIALLY CONSIDERED
APPLIED:
Holden v. Canadian National Railway (1990), 112 N.R.
395 (F.C.A.).
REFERRED TO:
Sheehan v. Upper Lakes Shipping Ltd., [1978] 1 F.C.
836; (1977), 81 D.L.R. (3d) 208; 77 CLLC 14,111; 19
N.R. 456 (C.A.); revd [1979] 1 S.C.R. 902; (1979), 95
D.L.R. (3d) 25; 79 CLLC 14,192; 25 N.R. 149; Scott v.
Foster Wheeler Ltd. (1987), 16 C.C.E.L. 251; 8
C.H.R.R. D/4179 (Ont. Div. Ct.); R. v. Bushnell Com
munications Ltd. et al. (1973), 1 O.R. (2d) 442; 45
D.L.R. (3d) 218; 14 C.C.C. (2d) 426 (H.C.); affd
(1974), 4 O.R. (2d) 288; 47 D.L.R. (3d) 668; 18 C.C.C.
(2d) 317 (C.A.); Brossard (Town) v. Quebec (Commis-
sion des droits de la personne), [1988] 2 S.C.R. 279;
(1988), 53 D.L.R. (4th) 609; 88 N.R. 321; Canada
(Attorney General) v. Rosin, [1991] 1 F.C. 391 (C.A.);
Fitzherbert and the Canadian Human Rights Commis
sion v. Underhill, T.D. 11/90 (C.H.R.T.), dated 24/9/90,
not yet reported.
COUNSEL:
Harry Glinter for the applicant.
Margaret Rose Jamieson for the respondent
Canadian Human Rights Commission.
SOLICITORS:
Deputy Attorney General of Canada for the
applicant.
Canadian Human Rights Commission for the
respondent Canadian Human Rights Com
mission.
The following are the reasons for judgment
rendered in English by
LINDEN J.A.: This section 28 application chal
lenges a decision of a Human Rights Tribunal
deciding that there had been discrimination on the
basis of family status. According to the Tribunal,
when Ina Lang was denied a Challenge 1986 grant
of $1,000 to hire her daughter as a summer stu
dent to run her day care centre, the Canada
Employment and Immigration Commission
(CEIC) violated section 5 of the Canadian Human
Rights Act [R.S.C., 1985, c. H-6], forbidding
discrimination on family status grounds. Counsel
for the applicant, Mr. Glinter, argued that the
reason for denying Mrs. Lang's application was
not discrimination on the basis of family status,
but rather it was her refusal to consider other
applicants for the proposed job who might be
referred to her by CEIC, something that was
required by the rules of the program. The Chal
lenge 1986 initiative was aimed at providing
summer jobs for students who would be able to
learn skills that they might later utilize in obtain
ing permanent employment. The mechanism used
was a $1,000 subsidy for each approved job that
would be granted to employers who hired a
summer student and paid the balance of the salary
for a 10-week period.
In order for there to be discrimination, all that is
required is a finding that discriminatory conduct is
one reason for the decision; it need not be the only
reason. As Mr. Justice MacGuigan has stated in
Holden v. Canadian National Railway (1990),
112 N.R. 395 (F.C.A.), at page 397:
... it is sufficient that the discrimination be a basis for the
employer's decision ....
(See also Sheehan v. Upper Lakes Shipping Ltd.,
[1978] 1 F.C. 836 (C.A.), at page 844 (reversed
on other grounds [1979] 1 S.C.R. 902; Scott v.
Foster Wheeler Ltd. (1987), 16 C.C.E.L. 251
(Ont. Div. Ct.); R. v. Bushnell Communications
Ltd. et al. (1973), 1 O.R. (2d) 442 (H.C.), at
pages 446-447 (per Hughes J.) affirmed (1974), 4
O.R. (2d) 288 (C.A.), at page 290 (per Evans
J.A.) in the labour relations context).
While there was evidence upon which the Tri
bunal may have decided that the reason (or that
one reason) for the CEIC's decision was the refus
al of Mrs. Lang to be willing to consider applicants
other than her daughter for the job, there was also
evidence upon which the Tribunal could base a
finding of discrimination on the basis of family
status.
The relevant words of the provision dealing with
nepotism read as follows:
... no contribution may be paid by the Commission in respect
of wages .... of an employee who: ... is a member of the
immediate family of the employer ....
It has been clearly held that blanket provisions
such as these are prima facie discriminatory. (See
Brossard (Town) v. Quebec (Commission des
droits de la personne), [1988] 2 S.C.R. 279). It is,
of course, open to employers to demonstrate a
bona fide occupational requirement for the limita
tion, but this was not attempted here. (See gener
ally Canada (Attorney General) v. Rosin, [1991] 1
F.C. 391 (C.A.)).
There was evidence that one of the CEIC
employees told Mrs. Lang that her application
could not be approved because the community
might disapprove of her hiring her daughter. In
addition, Mrs. Sangster, one of the responsible
officials of the CEIC, noted on Mrs. Lang's
application file as the basis for rejection:
"Wants to hire her daughter and will not consider anyone else."
Wanting to hire her daughter, thus, was one
reason, that led to her application being shelved,
without the CEIC even considering an exemption,
something which was possible under the scheme.
It was argued most creatively by Mr. Glinter for
the CEIC that it was Mrs. Lang who was the one
who was discriminating here in seeking to hire her
daughter, not the CEIC. Relying on Fitzherbert
and the Canadian Human Rights Commision v.
Underhill (T.D. 11/90 - Sept. 24/90) he suggested
that, by refusing to hire any one but her daughter,
she would be in violation of the Canadian Human
Rights Act. This might very well be the case, if
that eventuality came to pass, at least if there was
no bona fide occupational requirement proven.
However, Mrs. Lang never got approval, she had
no opportunity to discriminate and her conduct is,
therefore, not being challenged here. All that is
being attacked here is the decision of the CEIC,
denying the Challenge 1986 grant to Mrs. Lang.
Consequently, I can see no error of law or fact that
would support interference by this Court.
On the matter of remedies, the Tribunal award
ed compensation in the amount of $1,566.24,
$1,000 for hurt feelings plus interest, and made
certain suggestions to the CEIC to establish fair
criteria upon which it could decide when to exempt
applicants from the anti-nepotism clause in the
future.
I am of the view that the award of $1,566.24 is
not legally or factually founded. The amount is not
"wages" that were lost by the applicant nor can it
be said to have been properly proven as "expenses
incurred by the victim" as required by paragraph
53(2)(c). Counsel had difficulty explaining or jus
tifying this figure to us on the basis of the evidence
adduced. There was no factual basis to support
this award.
In the result, the section 28 application is
allowed only in relation to the damage award of
$1,566.24, which will be set aside.
PRATTE J.A.: I agree.
STONE J.A.: 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.