Date: 20060104
Docket: T-1683-04
Citation: 2006 FC 9
BETWEEN:
DR. SHIV CHOPRA
Applicant
and
ATTORNEY GENERAL OF CANADAand
THE CANADIAN HUMAN RIGHTS COMMISSION
Respondents
REASONS FOR ORDER
PHELAN J.
OVERVIEW
[1] This judicial review engages the issue of the nature and extent of compensation payable for the loss of an opportunity to compete for an employment position due to discrimination. The Canadian Human Rights Tribunal took into account the vagaries and uncertainties which are inherent in assessing future circumstances - the principle of foreseeability. The Applicant says that this is in error; that foreseeability is irrelevant so long as there is some causal connection between the loss of a future position and the discrimination.
[2] The Applicant had commenced his complaint in September 1992. He alleged that Health Canada had discriminated against him because of his race, colour and national or ethnic origin, in the manner in which the management position of Director of the Bureau of Human Prescription Drugs ("BHPD") was staffed between September 1990 and the Spring of 1992. His first hearing was before Chairperson Soberman of the Canadian Human Rights Tribunal ("Tribunal").
[3] Although his complaint before the Soberman Panel of the Tribunal was dismissed in 1995, the Federal Court overturned that Tribunal decision in 1998. The matter was remitted back to the Tribunal to be determined on the basis of the existing record augmented by the statistical evidence that had been excluded in the first Tribunal decision. The Federal Court's decision was upheld by the Federal Court of Appeal in 1999.
[4] In the second decision of August 13, 2001 ("Hadjis Decision"), the Tribunal (Chairperson Hadjis) concluded that Health Canada had discriminated against the Applicant. The Tribunal found that the Applicant was screened out of the competition for the BDPD Director's position for lack of "recent management experience".
[5] It was noted that during the two-year period leading up to the competition for the position, that indeterminate Director's position remained vacant. The Applicant had requested that he be assigned to act in the position temporarily but he was turned down.
[6] The Tribunal found that had he been assigned to act temporarily, the Applicant would have acquired the "recent management experience" that he needed to be screened into the competition for the Director's position. On the basis of the evidence presented, the Tribunal found that the denial to the Applicant of the opportunity to hold the temporary position was due, in part, to discrimination on the basis of his national or ethnic origin. However, the Tribunal also concluded that even if the Applicant had been screened into the final competition, he would not necessarily have won the position.
[7] The Tribunal retained jurisdiction and proceeded to the remedy phase of the dispute. It is this Remedy Decision of August 17, 2004 which is the basis of this judicial review.
REMEDY DECISION
[8] The Tribunal reviewed its statutory remedial jurisdiction and the relevant case law. The Tribunal put particular emphasis on two comments by Justice Marceau in the Morgan case: (1) that the test for loss of an opportunity for a job is "mere possibility" of success so long as "it was a serious one"; and (2) that the uncertainty about whether the job could be denied in any event was relevant to an evaluation of compensation for the damage resulting from the discrimination.
[9] The particular passage which has been the source of much debate in these proceedings is found at p. 412 of Justice Marceau's reasons in Canada(Attorney General) v. Morgan, [1992] 2 F.C. 401 (FCA):
I have great difficulty with the proposition adopted by the Review Tribunal and accepted by my colleague that it was sufficient to look at the probable result of the recruiting process to be able to draw the conclusion that the loss was that of a job rather than a mere opportunity. We are not dealing with the establishment of a past fact which in a civil court need only be proved on a balance of probabilities. Nor are we concerned with the relation between a particular result and its alleged cause. It seems to me that the proof of the existence of a real loss and its connection with the discriminatory act should not be confused with that of its extent. To establish that real damage was actually suffered creating a right to compensation, it was not required to prove that, without the discriminatory practice, the position would certainly have been obtained. Indeed, to establish actual damage, one does not require a probability. In my view, a mere possibility, provided it was a serious one, is sufficient to prove its reality. But, to establish the extent of that damage and evaluate the monetary compensation to which it could give rise, I do not see how it would be possible to simply disregard evidence that the job could have been denied in any event. The presence of such uncertainty would prevent an assessment of the damages to the same amount as if no such uncertainty existed. The amount would have had to be reduced to the extent of such uncertainty.
(emphasis added)
[10] The Tribunal's Decision dealt with seven areas which are challenged in this judicial review:
1. Compensation for Wage Loss - Acting BHPD Director;
2. Compensation for Wage Loss - BHPD Director - Indeterminate;
3. Compensation for Wage Loss - Beyond the EX-2 Level;
4. Compensation for Wage Loss - Another EX-level Position;
5. Claim for Immediate Appointment to an EX-level Position;
6. Non-Pecuniary Damages - up to $20,000; and
7. Interest - to be in addition to Non-Pecuniary Damages.
Re: Acting Director
[11] The Tribunal had held that Health Canada had discriminated against the Applicant for failing to give him the opportunity to act in the BHPD Director's position. The opportunity to act in this position would have also given the Applicant "recent management experience" - a criterion for the indeterminate Director's position. (Indeterminate position is the same as permanent position.)
[12] Taking into account the Applicant's qualifications (as well as the minimal concerns Health Canada had for the qualifications of those holding the "acting" position), the Tribunal concluded that there existed a serious possibility of the Applicant being assigned to act in this position were it not for the acts of discrimination practised against him.
[13] The Tribunal further held that the period in question during which the acting position was occupied constituted approximately 16 months (68 weeks) from October 20, 1990 to February 13, 1992. Three individuals had expressed an interest in the acting position. Therefore it concluded, based on evidence, that sharing the position during the 16 weeks was feasible; that the 68 weeks would be divided by three to reflect the number of interested candidates. Compensation was set at wages and benefits lost over the 22 weeks.
Re: Director - Indeterminate
[14] The Applicant claimed entitlement for compensation on the basis that had he been the Acting Director in the months leading up to the final competition, he would have acquired the recent management experience needed to be screened in. Once screened in, the Applicant claims that there would have existed a serious possibility of him winning the competition.
[15] The Tribunal noted that, other than the Applicant's assertion that he was better qualified than the ultimately successful candidate, no attempt was made to lead any specific evidence to support that claim. Indeed both the Applicant and Commission argued that such evidence was irrelevant - all that had to be proved was that there was a serious possibility that he would be successful. The only issue was, in fact, the extent of the damage and the evaluation of the monetary compensation which results.
[16] Considering the qualification of the candidates and a study of promotion of public service employees serving in acting positions, the Tribunal agreed that there was a serious but mere possibility that the Applicant would have been successful in securing the permanent Director's position.
[17] However, the Tribunal stated that "the story does not end there". Accepting that the Applicant suffered this loss, the Tribunal followed its understanding of Justice Marceau's dictum that the evidence of any uncertainty related to the Applicant acceding to the position cannot be ignored. The damages award must be reduced to the extent of that uncertainty. Taking account of the nature of the competition and the screening guidelines, the Tribunal determined that the Applicant's wage loss should be reduced by two-thirds (⅔) to reflect the relatively high level of uncertainty of him being successful in the final competition.
[18] Central to the Tribunal's finding, and to the issues before the Court, is the conclusion based on Canada(Attorney General) v. McAlpine, [1989] 3 F.C. 530 (C.A.) that only losses that are reasonably foreseeable are recoverable.
[19] In this context of reasonable foreseeability as to the Applicant's future, the Tribunal found that the Applicant must show that he took steps to improve his chances of successfully competing for an EX-level position and that he had applied for such positions when the opportunity arose. Noting that the Applicant never entered any competition for promotion to the EX-level and turned down an acting position in which he "would have gained additional critical line management experience", the Tribunal was not persuaded that he had taken all reasonable measures to mitigate his damages.
[20] The EX-level, in the federal government, is an important benchmark. It is the executive or senior level of management and is a critical designation for anyone seeking senior management positions.
[21] Considering these "shortfalls" with respect to the duty to mitigate, the Tribunal found that the Applicant's entitlements to compensation should be limited to a period of six (6) years following April 21, 1992 - the date when the successful candidate was confirmed in the position. The Tribunal found that the Applicant was entitled to ⅓ of his lost wages and benefits at the EX-2 level over a period of six years.
Compensation for Wage Loss Beyond EX-2 Level
[22] The Applicant claimed compensation for wage loss with respect to subsequent promotions that he would have received after obtaining the indeterminate BHPD Director's position in 1992. He claimed that he would have reached the EX-3 level by 1995, the EX-4 level by 1998 and the EX-5 level by 2001.
[23] This aspect of the Applicant's claim was supported by the evidence of Dr. John Samuel, an expert in systemic discrimination and career progression in the federal public service. The Tribunal had difficulty accepting Dr. Samuel's findings because it was not clear by what measures he reached his conclusions regarding the Applicant's capability, determination and tenacity. The Tribunal was concerned that no comparison was made between the progression of visible and non-visible minority groups in support of the contention that the Applicant would have benefited from the government's policy of encouraging the promotion of minority group members. There was also concern for the expert's credibility.
[24] In the end, the Tribunal, in dismissing this aspect of the claim, held that, having regard for the fact that the discrimination was in respect of an acting position, it was far too remote and speculative to conclude that there was a serious possibility that the Applicant would have reached the highest echelons of senior management merely because he had acted as a director for a little over five months. It is also unreasonable to assume that advancement within the EX ranks would follow automatically.
Compensation for Wage Loss - Another EX-level Position
[25] As an alternative claim, the Applicant submitted that, given the management experience he would have gained while an acting director, he would have secured another EX position if he was not successful in the final competition for BHPD Director position.
[26] The Tribunal rejected this contention on the basis that the qualifications for each EX position are unique and that the competition to gain entry into EX-level positions is intense. The Tribunal rejected the submission that there was a serious possibility of appointment to another EX position at some time in the Applicant's career.
Claim for Immediate Appointment to an EX-level Position
[27] Since the Tribunal concluded that its award of compensation constituted full restitution, it held that an order for appointment to an EX-level position was not justified.
Non-Pecuniary Damages
[28] The act of discrimination occurred in 1990, prior to the 1998 amendments to the Act which changed the maximum award for non-pecuniary damages from $5,000 to $20,000 for pain and suffering and a further $20,000 maximum for engaging in a discriminatory practice in a wilful or reckless manner.
[29] The Applicant contended that he was entitled to compensation under the higher limits provided in the 1998 amendment to the Act. The basis of this claim was that the amendments were housekeeping provisions intended to have retrospective effect; that the provision was not intended to impose further punishment for the offending event; and that the Applicant's hurt feelings continued beyond 1998.
[30] The Tribunal rejected these arguments. It relied on the Tribunal decision in Nkwazi v. Canada(Correction Services), [2001] C.H.R.D. No. 1, which held that these provisions did not have retrospective effect.
[31] Considering all the circumstances, the Tribunal ordered the Respondent to pay $3,500 in special compensation pursuant to the pre-1998 version of s. 53(2) of the Act.
Interest
[32] The Tribunal awarded simple (rather than compound) interest at the Bank of Canada Bank Rate. The interest award, calculated from 1990, was not to exceed the $5,000 maximum under the pre-1998 amended Act.
Public Posting of Decision
[33] The Tribunal rejected the Applicant's request that the decision be posted publicly within Health Canada and distributed via the internet to all departmental employees.
[34] The Tribunal held that since there was no systemic discrimination found and that there had been widespread coverage of the case in the national media, further publicity was not an appropriate remedy.
[35] From all of these conclusions, the Applicant seeks judicial review.
STANDARD OF REVIEW
[36] In determining the appropriate standard of review, the Court has to consider the true nature of the decision being made; whether it is principally fact finding, a determination of law or a mixture of fact and law. Then the Court must apply the pragmatic and functional approach to determine the standard of review applicable to the decision or issues in the decision under review. (See Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.)
[37] In this Remedy Decision there were three critical components. The first was the principles of law to be applied to the determination of the award; the second was the making of specific findings of fact arising from the remedies stage of the Applicant's complaint; the third was the application of those principles to the facts as found in both the Hadjis Decision and this Remedy Decision.
[38] As to the determination of the applicable legal principles, while the Court is sensitive to the fact that these principles arise in a human rights context, rather than as a matter of general law, the determination is one of law; a function generally left to courts. This is particularly the case here, where the determination of the proper legal principles flows from the Court of Appeal's decision Morgan, above. Therefore, the appropriate standard of review on the applicable legal principles is that of correctness.
[39] With respect to findings of fact, particularly where the decision-maker must base part of the conclusions on his or her observations of the witnesses, the Court should accord considerable deference to the Tribunal member consistent with the Supreme Court's decision in Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369 at 408. It is my conclusion that the standard of review should be reasonableness simpliciter.
[40] As to the standard of review on issues of mixed law and facts, which are essentially the conclusionary aspect of the Tribunal's function, section 53(2) and (3) give the Tribunal a broad discretion. In light of that discretion and the predominantly fact-driven nature of the remedy phase, the appropriate standard of review is likewise reasonableness simpliciter.
| 53(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing a plan under section 17;
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim 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;
(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and
(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.
53(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.
|
53(2) À l'issue de l'instruction, le membre instructeur qui juge la plainte fondée, peut, sous réserve de l'article 54, ordonner, selon les circonstances, à la personne trouvée coupable d'un acte discriminatoire :
a) de mettre fin à l'acte et de prendre, en consultation avec la Commission relativement à leurs objectifs généraux, des mesures de redressement ou des mesures destinées à prévenir des actes semblables, notamment :
(i) d'adopter un programme, un plan ou un arrangement visés au paragraphe 16(1),
(ii) de présenter une demande d'approbation et de mettre en oeuvre un programme prévus à l'article 17;
b) d'accorder à la victime, dès que les circonstances le permettent, les droits, chances ou avantages dont l'acte l'a privée;
c) d'indemniser la victime de la totalité, ou de la fraction des pertes de salaire et des dépenses entraînées par l'acte;
d) d'indemniser la victime de la totalité, ou de la fraction des frais supplémentaires occasionnés par le recours à d'autres biens, services, installations ou moyens d'hébergement, et des dépenses entraînées par l'acte;
e) d'indemniser jusqu'à concurrence de 20 000 $ la victime qui a souffert un préjudice moral.
53(3) Outre les pouvoirs que lui confère le paragraphe (2), le membre instructeur peut ordonner à l'auteur d'un acte discriminatoire de payer à la victime une indemnité maximale de 20 000 $, s'il en vient à la conclusion que l'acte a été délibéré ou inconsidéré.
(emphasis added)
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Legal Principles
[41] There is no doubt that s. 53 of the Act is designed to accord with the principle of restituto in integrum. The Act has, as its cornerstone, to effect proper remedial action through awards that truly compensate - to the extent that that is ever possible - the victim of discrimination. (See Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84.)
[42] A corollary of this principle of restoring the victim to his/her rightful place is that the victim is not overcompensated - that human rights awards do not result in unrealistic or windfall compensation. Such a result would otherwise undermine the integrity of the strong social justice purpose of the legislation.
[43] It is the Applicant's position that so long as there is some nexus between the discrimination and the compensation, the Applicant should succeed for all amounts claimed. The Applicant says that foreseeability is not a relevant consideration and that no regard should be had for the contingencies and uncertainties of life. He says that the Tribunal should have anticipated his likely career path and have awarded him compensation for the loss of these future career successes.
[44] With the greatest respect, I found such an argument unsustainable and unrealistic. The Applicant would have the Tribunal assume that everything in life would proceed as the Applicant would like - the Applicant's version of foreseeability; but otherwise ignore the high degree of speculation and uncertainty that this exercise entails including any assessment of the reasonableness or contingencies of this assumption about his career path.
[45] The Applicant submits that there is considerable confusion surrounding the principles governing the assessment of loss of wages once a positive finding of liability is made. The Applicant relies on Justice MacGuigan's reasons in Canada(Attorney General) v. Morgan, above and on Piazza v. Airport Taxicab (Malton) Assn. (1989), 69 O.R. (2d) 281 to argue that principles of wrongful dismissal and common law tort principles do not apply in the human rights context. Finally, the Applicant says that the Federal Court of Appeal in Canada(Attorney General) v. McAlpine, [1989] 3 F.C. 530 (C.A.) was in error to have applied a foreseeability test.
[46] This argument ignores the fact that McAlpine is binding authority on the Tribunal and on this Court. It also ignores the fact that Justice MacGuigan's decision in Morgan is in dissent and that Piazza only holds that reasonable notice of dismissal is not relevant in a human rights context.
[47] In my view, the law has been clarified in Morgan by Justice Marceau wherein the Court of Appeal lowered the standard of proof to establish real loss from the normal standard of probability to the criterion of a "a mere but serious possibility" that the individual would have obtained the position.
To establish that real damage was actually suffered creating a right to compensation, it was not required to prove that, without the discriminatory practice, the position would certainly have been obtained. Indeed, to establish actual damage, one does not require a probability. In my view, a mere possibility, provided it was a serious one, is sufficient to prove its reality.
Morgan, at p. 412
[48] Having established the existence of the loss of opportunity in this case, the Tribunal is then obliged to make an evaluation of the extent of that loss. That evaluation of loss requires an assessment of uncertainties, contingencies and likelihoods - an exercise of foreseeability and remoteness.
But, to establish the extent of that damage and evaluate the monetary compensation to which it could give rise, I do not see how it would be possible to simply disregard evidence that the job could have been denied in any event. The presence of such uncertainty would prevent an assessment of the damages to the same amount as if no such uncertainty existed. The amount would have had to be reduced to the extent of such uncertainty.
...
... 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 [1981] 2 S.C.R. 181">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 to 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.
Morgan, at p. 414
[49] The Federal Court of Appeal, three years before Morgan, established in McAlpine that damages should not be awarded if they are too remote. That approach has been followed consistently in this Court.
[50] The law has balanced the lower standard of proof of the existence of loss with a realistic assessment of the extent of that loss. To ignore uncertainties, contingencies, foreseeability and mitigation would be inconsistent with the principle of restituto in integrum.
[51] To apply the Applicant's submission to the facts of this case would mean that the Applicant would be effectively deemed to have achieved the level of EX-3 without any consideration of the likelihood of that circumstance occurring. That result is contrary to law and common sense.
[52] The evaluation of these factors is an exercise in fact finding and application of the law to these facts. As stated earlier, the Tribunal is to be accorded a degree of deference. The burden was on the Applicant to establish that the conclusions with respect to each of the employment positions considered was unreasonable. It is inappropriate for the Court to substitute its estimate of foreseeability - to discount the chances of a position from the Tribunal's reduction of ⅔'s to some other arguably logical discount. The Tribunal is in a better position to make this assessment as long as its conclusion and method of concluding are reasonable.
Acting Director's Position
[53] The Tribunal determined that there existed a "serious possibility" of the Applicant being assigned to the acting Director's position but for the discrimination. The Tribunal then considered that the position would have been shared on a rotational basis with two other employees and the compensation to the Applicant was accordingly discounted to reflect this job-sharing.
[54] In reaching this conclusion, the Tribunal relied on the fact that the Applicant had proposed and would have been content with a rotational acting position. It is difficult to see what is unreasonable about the Tribunal's conclusion. The Applicant says that he is entitled to compensation as if the position was not rotated - this would have required the Tribunal to ignore the preponderance of evidence and the Applicant's own stated acceptance of the rotational system.
Director - Indeterminate
[55] The Tribunal concluded that if the Applicant had served in the "acting" position, he would have had the management experience necessary to hold the permanent position of Director. The Applicant argues that, in law, the Tribunal must then accept that the Applicant would have, in fact, obtained that permanent position regardless of the likelihood of such event occurring.
[56] For the reasons stated earlier, the Applicant's argument does not accord with the law. The Tribunal determined that there was a "mere but serious possibility" that the Applicant would have been successful. The Tribunal did not conclude that there was any probability that the Applicant would have obtained the position - there was a high degree of uncertainty as to the Applicant's chances of success even with the management experience gained.
[57] The crux of the Tribunal's decision in this regard is at paragraphs 32 and 33 of the Remedy Decision.
[32] These findings all lead me to conclude that had Dr. Chopra acted in the BHPD Director's position for just over five months, a mere but serious possibility would have existed of his later being successful in the final competition for the indeterminate position.
[33] The story does not end there, however. It may be that Dr. Chopra suffered this loss but, as Mr. Justice Marceau noted in Morgan, supra, to establish the extent of Dr. Chopra's damage and evaluate the monetary compensation to which it gave rise, evidence of any uncertainty related to Dr. Chopra's acceding to the position cannot be ignored. The damage award must be reduced to the extent of such uncertainty.
[58] The Tribunal made a number of factual findings in reaching its conclusion that the Applicant's wage loss payable should be reduced by ⅔'s to reflect the uncertainty that the Applicant would have obtained the Director position. These included:
(a) the lack of evidence regarding whether the Applicant had any experience as a spokesperson for Health Canada. This was an essential requirement to be screened into the competition.
Remedy Decision, paras. 20 and 26
(b) the absence of evidence regarding the Applicant's qualifications as set out in the Selection Profile. (The Selection Profile was a separate document used in the second phase of the assessment after the screening.)
Remedy Decision, paras. 21, 25 and 34
(c) the fact that the selection process was complex and some of the testing procedures were organized so as to not advantage individuals who already were employed in the Bureau of Human Prescription Drugs.
Remedy Decision, para. 34
(d) the fact that being screened into a competition does not mean that one is qualified. (In the Applicant's case, there was an absence of evidence as to whether he would have even been screened into the competition, even with management experience.)
Remedy Decision, para. 35
(e) the fact that the position was at a senior management level and that the Applicant even with the experience gained from acting for a period of time, would still have had significantly less experience than Dr. Franklin's 13 years. (The evidence was that senior management skills are generally more important than expertise in a particular scientific discipline for positions at this level.)
Remedy Decision, paras. 25 and 39
(f) the absence of any evidence as to how the Applicant would have fared in the complex assessment process that Dr. Franklin had undergone.
Remedy Decision, para. 22
(g) the Health Canada data which showed that a significant majority of individuals who obtained acting EX level positions did not obtain any permanent promotions.
Remedy Decision, para. 30
(h) the finding that acceding to senior management level positions is neither simple nor automatic.
Remedy Decision, para. 35
[59] In my view, all of these findings are relevant to the issue of determining the extent of the compensation which should be reasonably accorded the Applicant. The Applicant has not shown that these findings are perverse or unreasonable.
[60] The Tribunal, having applied a ⅔'s reduction to account for the uncertainty that the Applicant would be successful in the final competition for the Director position, then turned its mind to whether such loss was reasonably foreseeable. This process included taking account of the reasonable steps to mitigate loss, including whether the Applicant took steps to improve his chances of successfully competing for an EX-level position and whether he had applied for such positions when the opportunity arose.
[61] The Tribunal noted that the only incident of discrimination against the Applicant was in 1990 in respect to an acting position of limited duration. The evidence established that subsequent to 1990 through to at least 2002, the Applicant never competed for another EX-level position nor took other opportunities to improve his position. The Tribunal noted that a similar pattern existed prior to the 1990 incident.
[62] The Applicant submits that the Tribunal erred in its conclusions on the Applicant's failure to mitigate in that he failed "to show that he took steps to improve his chances of successfully competing for an EX-level position and that he applied for such positions when the opportunity arose".
[63] In my view, the Tribunal did no more than acknowledge that the Applicant had a duty to mitigate consistent with the decision in Morgan and in Canada (Attorney General) v. Uzoaba, [1995] 2 F.C. 569 and Canada(Attorney General) v. Green [2000] 4 F.C. 629. The Tribunal did not establish an onus on the Applicant to demonstrate mitigation. The discussion of mitigation was focused on the potential of the Applicant to have succeeded in respect to the competition for the Director position.
[64] The factors examined by the Tribunal - the failure to seek jobs where the Applicant could obtain management experience, and the failure to take steps to achieve the EX level - are relevant to assessing the extent of the Applicant's claim for compensation. The Applicant's actions (or lack thereof) is relevant to assessing whether the compensation claimed is reasonable and whether there was any serious probability or possibility that he would have obtained any of the positions in the future for which he claimed loss.
[65] In my view, the Tribunal had an obligation to determine the length of time over which the effects of discrimination could foreseeably extend. The Applicant's pattern of behaviour suggested that it was not foreseeable that the discriminatory effects would extend throughout the remainder of his public service career given his own reluctance to pursue other opportunities. The Tribunal found six years to be the foreseeable period. Some might contend that this was an overly generous period but it is not the Court's role to second guess the conclusion where it is reasonably founded.
Instatement
[66] The Applicant complains that the Tribunal did not order that he be promoted and placed immediately in a senior management (EX) position. The essence of the Applicant's submission is that he should receive the position about which he had a mere possibility of obtaining. In that regard, having lost the opportunity to compete for an EX position, he seeks to obtain more than he lost.
[67] In refusing this remedy, the Tribunal took account of a number of facts including:
(a) although the Tribunal found there was a mere but serious possibility that the Applicant would have obtained the indeterminate position of Director, there was a high degree of uncertainty that he would have successfully obtained the position;
(b) the Applicant was not shown to be qualified for the indeterminate Director's position;
(c) there was no evidence that even with the necessary management experience, the Applicant met the other criteria necessary to be screened into the competition;
(d) there was no evidence that the Applicant even if screened in, would have been the successful candidate or that he had the abilities or personal suitability necessary;
(e) each senior management position is unique, requires different skill sets, abilities, knowledge and education;
(f) promotion to a senior management position is neither simple nor automatic;
(g) appointment to the senior management level is to be distinguished from appointments at other levels, given the unique qualifications for each position;
(h) the competition to gain entry into senior management positions is intense (ie. thousands of applicants for hundreds of jobs); and
(i) there was no evidence identifying a specific senior management level position for which the Applicant would be qualified.
[68] The evidence before the Tribunal was that EX-level positions are non-generic, highly specialized, requiring unique skills and abilities. These positions are in no way automatic or lock-step. There was a sound evidentiary base upon which the Tribunal could conclude that the Applicant did not have a serious possibility of success because he lacked the necessary qualifications.
[69] I can find nothing unreasonable in the Tribunal's conclusion that this is not an appropriate remedy in a situation where there was no probability of the Applicant achieving the EX level and that the loss due to discrimination had been that of mere opportunity where full restitution of his loss with respect to a possible promotion had been made.
Loss beyond EX-2 Level
[70] The Applicant claimed that he was entitled to claim for loss of future positions through to the EX-5 level.
[71] In rejecting this claim as not a "serious possibility", the Tribunal found the claim to be too remote or speculative. As indicated earlier in these Reasons, the Tribunal was required to address the issues of remoteness and foreseeability in assessing the extent of the Applicant's loss.
[72] The Tribunal had considerable difficulty with the Applicant's expert evidence as to his future career path. The assessment of this expert evidence and its objectivity is a matter well within the expertise and function of the Tribunal. I can find no basis on which to interfere with the Tribunal's conclusions in respect of this evidence.
[73] Further, the Tribunal focused on the real nature of the discrimination - the failure to appoint the Applicant to an acting Director's position in 1990 for a period of five months. The Tribunal took account of the evidence of the Applicant's conduct and the nature of EX positions to conclude that the absence of five months of management expertise in 1990 would lead to the denial of EX 3-5 positions between 1995 and 2001 had the Applicant sought such positions.
[74] The Tribunal conducted a realistic assessment of the extent of this claimed loss. I can find nothing unreasonable in the manner in which it reached its conclusion or with the conclusion itself.
Loss - Another EX Position
[75] The Applicant claimed that even if he had not obtained the Director's position in 1992, the recent management experience gained would have resulted in his appointment to some other EX position.
[76] The Tribunal rejected this claim as being too speculative as no evidence was led as to which EX position could be obtained. The Tribunal also took into consideration that the Applicant did obtain recent management experience in 1997 yet it never led to another indeterminate EX-2 position in the ensuing years.
[77] Again, I cannot find anything unreasonable about the Tribunal's decision in this regard. EX positions are non-generic, therefore there must be some evidence of an EX-2 position for which the Applicant might be qualified. The Tribunal's reliance on the Applicant's past experience of lack of success in obtaining an EX-2 position after he had obtained management experience, and where discrimination was not at issue, is highly cogent evidence upon which the Tribunal may reasonably rely.
Non-Pecuniary Damages
[78] The Applicant claims that he is entitled to the benefits of the June 1998 amendments to the Act which increased the maximum award for pain and suffering to $20,000 and for special compensation for wilful and reckless discrimination also to $20,000.
[79] The acts of discrimination found by the Soberman Panel occurred in the period 1990-1992. The first hearing commenced in 1995 and the Soberman Panel's decision was made in 1996. The second hearing, conducted by Hadjis, which found in favour of the Applicant, was conducted after the legislative amendments.
[80] In Brosseau v. Alberta (Securities Commission), [1989] 1 S.C.R. 301, the Supreme Court of Canada addressed the issue of the presumption against retrospectivity. The Court outlined three types of situations where the issue of the presumption may (or may not) be applicable; (1) where the statute attaches benevolent consequences to a prior event; (2) where the statute attaches prejudicial consequences to a prior act; (3) where the statute imposes a penalty on a person as described by a prior event.
[81] It is the second category - prejudicial consequences to a prior act - which attracts the presumption against retrospectivity. There are numerous Tribunal decisions which have held that these 1998 amendments do not operate retrospectively.
[82] While I do not accept the Respondent's submission that this Court ought to show deference to the Tribunal's jurisprudence on this issue of retrospectivity - the issue being a question of law and jurisdiction does not attract deference - I concur with the reasoning of those decisions and this Remedy Decision in particular. The amendment attaches further prejudicial consequences to a prior event by increasing the amount of potential liability.
[83] There is no evidence in the wording of the amendment to suggest retrospectivity. Further, as for special consequences, there was no finding of systematic, wilful or reckless discrimination. Therefore, the Applicant is not entitled to be considered for the increased compensation arising from the 1998 amendments.
Interest
[84] The Applicant submitted that the Tribunal erred in its conclusion that interest on the non-pecuniary amount due was to be calculated as simple interest and that the interest amount fell within the pre-1998 limit of $5,000 imposed on non-pecuniary compensation awards.
[85] While it might seem unfair that a person should have interest on a long due award capped or subsumed by the cap on non-pecuniary damages awards, that was the effect of the pre-1998 provisions of the Act.
[86] Prior to 1998 the Tribunal did not have authority to award interest at a rate and for a period the Tribunal considered appropriate for all awards under s. 53 of the Act. The power to award such interest was included under s. 53(3) of the Act "to pay such compensation to the victim not exceeding five thousand dollars". (See Morgan; also Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391.)
[87] Since the 1998 amendments did not have retrospective effect, the Tribunal was correct in its conclusion on this issue.
[88] For these reasons, I do not need to address the Applicant's claim that not only would interest be outside any legislated cap but that such interest should be compound interest. However, if I had so addressed the issue, I conclude that the Tribunal had no facts before it to justify the award of interest on a compound basis.
CONCLUSION
[89] In summary, I have concluded that:
(a) the Tribunal was correct in its conclusions as to the legal principles to be applied in assessing the extent of the Applicant's claim for compensation.
(b) the Tribunal was reasonable in its conclusions of fact and mixed fact and law as to the compensation for loss of the opportunity to serve in an acting Director's capacity, as well as in respect to the Director's Indeterminate position and in respect to the rejection of claims for compensation for an immediate EX position, another EX-level position and for compensation beyond an EX-2 level.
(c) the Tribunal was correct and reasonable in its interpretation of the applicable law and mixed law and facts as to the non-pecuniary and interest components of the Applicant's claim.
[90] For all of these reasons, this application will be dismissed with costs to the Respondent, Attorney General of Canada.
"Michael L. Phelan"
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