Canada (Department of National Health and Welfare) v. Chander, docket T-58-96

     T-58-96

     T-957-96

Between:

     DEPARTMENT OF NATIONAL HEALTH AND WELFARE,

     Applicant,

     - and -

     SATISH CHANDER,

     NARENDRA NATH JOSHI and

     CANADIAN HUMAN RIGHTS COMMISSION,

     Respondents.

     REASONS FOR ORDER

Muldoon, J.

     This is an application for judicial review of two decisions regarding complaints of discrimination filed with the Canadian Human Rights Commission (the Commission or CHRC) by Dr. Satish Chander and Dr. Narendra Nath Joshi against the Department of National Health (the Department). The decision at issue in file T-58-96 is a majority decision made on December 13, 1995 by a three-member Canadian Human Rights Tribunal (the tribunal) which found that both Dr. Chander and Dr. Joshi were discriminated against contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, Chap. H-7, which denounces discrimination on the basis of race, colour, ethnic or national origin, and religion. Dr. Chander complained of discrimination on the basis of religion. File T-957-96 deals with the remedies and damages which the tribunal awarded the two complainants in its decision of March 28,1996. The two judicial review applications were ordered to be heard together by Mr. Justice Denault on July 23, 1996. The hearing took place on May 13, 1997, in Ottawa.

     Section 7 of the Act runs:

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.

     Both decisions arise from the following facts. Dr. Chander was born in what is now Pakistan. He was awarded a Ph.D. in veterinary science from a West German university and a second Ph.D. in biomedical sciences at the Ontario Veterinary College in 1968. After completing his formal education, Dr. Chander was employed as a research scientist at Agriculture Canada for ten years before joining the Department of National Health and Welfare in 1983 as a BI-02 in the Bureau of Medical Services. He first worked as a term employee and later became permanent. Dr. Chander was seconded to the Infection and Immunology Division (I & I) of the Bureau of Human Prescription Drugs at the Department in February, 1988 (AR, vol. XIII: p. 2035).

     Dr. Joshi was born in India and moved to Canada in 1959. He obtained a M.Sc. in microbiology and a Ph.D. in animal virology from McGill University in 1964. Dr. Joshi also had a one year post-doctoral fellowship with the Medical Research Council of Canada at the Ontario Veterinary College in immunology (application record or AR, vol. II: p. 97). After spending considerable time as a researcher and consultant in private industry, he was hired by the Department to work in a six month-term position at the Division in April, 1988 as a Biologist Level 2 (BI-02). This term was renewed twice (AR, vol XIII: pp. 2036-37).

     The respondents' jobs both involved reviewing and evaluating investigational new drug submissions, new drug submissions and supplemental new drug submissions which were assigned to the I & I division for evaluation (Dr. Chander as of August 1988 and Dr. Joshi as of April 1988; AR, vol. XIII: p. 2037). Drug submissions assigned to I & I were given to individual evaluators, who reported to the division chief. If the submission was particularly important, a second or even third evaluation might be conducted. The point of the review process is to make a safety evaluation and give a risk/benefit opinion (AR, vol. XIII: p. 2037).

     The acting I & I division chief between August 1987 and March 31, 1989, was Dr. Joseph Valadares. During this time there was a backlog of submissions in the division. To remedy this, he recruited personnel to join the division, particularly virologists, with an eye to the increased public awareness of HIV and AIDS and the influx of submissions related to HIV and AIDS (AR, vol. XIII: p. 2038). Dr. Valadares advised Dr. Joshi that if he was found to be rated as "very satisfactory" that there would be no reason why Dr. Joshi would not be absorbed as a virologist in the division. (AR, vol. VII: pp. 1066-1077; vol. II, pp. 105-107). In fact, the two member majority of the tribunal found that "Dr. Valadares was extremely pleased with the contribution of each of the complainants to his division. The evidence shows that both Dr. Chander and Dr. Joshi received recognition from their chief and others." (AR, vol. XIII, p. 2038).

     On October 13, 1988, Dr. Chander's supervisor, Dr. Khan, wrote an appraisal memorandum of Dr. Chander to Dr. Valadares. On the whole, the memorandum endorsed Dr. Chander. While Dr. Khan found that Dr. Chander had an inability to communicate his thoughts on paper precisely and needed to improve his scientific knowledge by more thorough literature review, the appraisal recommended Dr. Chander. Dr. Khan wrote (at AR vol XIII: p. 2039; vol. XVI, tab 7: exhibit HR-2):

In the final evaluation, Dr. Chander's professional judgment and productivity might not be comparable to a few select members of our division; it is definitely equivalent or even superior to many of the others. I recommend your serious consideration of Dr. Chander's candidacy for indeterminate employment with our division.

This was so despite the stressful conditions under which Dr. Chander was working (AR, vol. XIII: p. 2039).

     Dr. Johnson became the director of the Bureau in December 1988. He proposed that the Bureau's backlog be reduced by approving overtime work to be done by the best evaluators. In February 1, 1989, Dr. Johnson chose Dr. Kapitany and Dr. Joshi from the I & I division for overtime work (AR, vol. XIII: p. 2039; vol. XIV: exhibit HR-3; vol. II: pp. 116-124).

     Both Drs. Chander and Joshi received favourable performance review and employee appraisals (PREA) for the April, 1988-March 31, 1989 period. After laudatory words, both PREAs resulted in Drs. Chander and Joshi being rated fully satisfactory. Both appraisals were made by the acting chief, Dr. Valadares. (AR, vol. XIII: p. 2040).

     The Department of National Health and Welfare posted a competition for four indeterminate BI-04 evaluator positions. The in-service deadline for applications was January 31, 1989. Drs. Joshi and Chander were the only two in-service candidates. The tribunal found that "at some point the respondent [Department] decided to invite external candidates to apply as well and this may have been the reason that the interviews for this competition were not held until May, 1989." (AR, vol. XIII: p. 2040).

     After this, the calm seas became troubled. In October and November of 1988, the director general of the drugs directorate had issued two memoranda which emphasized that AIDS-related drugs should be fast tracked through the approval process. If a drug had been approved in the United States, the submission should be accepted without modification. In particular, special emphasis was to be placed on submissions regarding fluconazole (AR, vol. XIII: pp. 2064-2066). Dr. Chander and Dr. Joshi were both aware of the "fast track" policy which the directorate had implemented. (AR, vol. III: p. 275; vol. XIII: 2042; vol. XVI: tab 7, exhibit HR-2).

     I & I division was very busy at this time. Ten clinical protocols for the investigational new drug submission submitted February 2, 1989 for fluconazole were to be completed by April 3, 1989 (AR, vol. III: pp. 277-279; vol. XIII: 2042). At a meeting on the morning of March 23, 1989, Drs. Chander and Joshi initially raised thirteen concerns about the protocols for the fluconazole. Among those present at the meeting were Dr. Chander, Dr. Joshi, Dr. Khan and Dr. Gadd. The protocols at issue were still at the discussion stage, not at the review stage (AR, vol. XIII: pp. 2042-43).

     That afternoon, Drs. Joshi and Chander were reviewing their concerns in Dr. Chander's office when Dr. Gadd and Dr. Khan arrived. The majority described what happened next in their decision (AR, vol. XIII: p. 2043):

According to Dr. Joshi, both Dr. Gadd and Dr. Khan would not listen to any of the concerns and were badgering him about his list. Dr. Joshi stated that neither Dr. Gadd nor Dr. Khan had raised any problems with Dr. Joshi's concerns about fluconazole in the early morning meeting. Dr. Joshi stated that by badgering he meant that when he pointed to some of the scientific evidence, he felt that Drs. Gadd and Khan were not listening and almost trying not to understand. Drs. Gadd and Khan suddenly walked out of the office and walked toward Dr. Johnson's office.

With respect to the validity of the respondents' concerns, the two majority members wrote (AR, vol. XIII, p. 2043):

Much of the cross-examination of Dr. Joshi on the subject of the fluconazole matter pertained to the science of the concerns. On cross-examination Dr. Joshi agreed that on one of the protocols, Drs. Gadd and Khan and Gadd had received medical opinion and had information for Dr. Joshi. Dr. Joshi pointed out that it was not clear what information Drs. Khan and Gadd had provided to the medical expert and Dr. Joshi was not therefore instantly satisfied. The respondent provided no evidence of any science that directly refuted the concerns. Many of the concerns in the list were not the subject of cross-examination. Each complainant vigorously responded to each scientific challenge that was raised on cross-examination.

After the March 23, 1989, meeting, Drs. Chander and Joshi were not involved in evaluating fluconazole and there was no further discussion regarding their concerns.

     On April 1, 1989, Dr. Valadares was replaced as acting director of the division by Dr. Gadd (AR, vol. XIII: p. 2043).

     Prior to the competition, Dr. Johnson, who apparently had to sign the respondents' PREAs, confirmed Dr. Chander's PREA as "fully satisfactory" but downgraded Dr. Joshi's to "satisfactory" because he "had reason to question the clinical relevance of some of his comments on INDs" (AR, vol. XIII: p. 2044). According to the remark made by Dr. Joshi in the employee remarks section, the only IND which Dr. Johnson had knowledge of which Dr. Joshi was involved in was fluconazole. Dr. Joshi stated that he did not make clinical comments regarding that drug (AR, vol. XIII: p. 2044).

     Dr. Joshi met with Dr. Johnson and Dr. Brill-Edwards on May 12, 1989, in order to discuss his PREA. Dr. Joshi attempted to clear up the matter by stating that his concerns were scientifically grounded, but this was ignored because "these people are going to die anyway" (AR, vol. XIII: p. 2044). Dr. Joshi also discussed the job competition with Dr. Johnson, who said that the person who would get the promotion would be the one who could work best with Dr. Gadd (AR, vol. XIII: p. 2044).

     Before this meeting, Dr. Joshi testified that he was told by Dr. Kapitany (a colleague of both Chander and Joshi) that Dr. Gadd had said "these two browns will not be in." (AR, vol. XIII: p. 2045). Dr. Joshi met with Mr. Michael Ryan, the union representative, to discuss the downgrading and the upcoming competition. Mr. Ryan advised him to proceed with the interview and to grieve the downgrading later (AR, vol. XIII: p. 2045).

     Dr. Joshi told Dr. Chander about Dr. Gadd's alleged remark. Prior to this, Dr. Chander was also told by Dr. Kapitany that he (Kapitany) had spoke to Dr. Gadd, and "was not hopeful of Dr. Chander's chances" (AR, vol. XIII: p. 2045).

     At the hearing, Dr. Kapitany testified that he did have brief conversation with Dr. Gadd about the professional composition of the I & I division and recalled being asked "are these the kind of people we wish to have in the division?". Dr. Kapitany assumed that Dr. Gadd meant Drs. Joshi and Chander. Dr. Kapitany testified that the reference was to the composition of the division, i.e. whether it should be changed so as to include infectious disease specialists, qualified physicians and pediatricians. Dr. Kapitany did not recall telling Dr. Joshi that Dr. Gadd had said "these two browns will not be in". He could not remember, but did not deny, telling Dr. Joshi that "you two will not be in" (AR, vol. XIII: p. 2046).

     The majority members found that they did not believe that "Dr. Gadd and Dr. Kapitany were discussing the composition of I and I without discussing the upcoming job competition. We did not believe that Dr. Gadd was discussing with Dr. Kapitany changing the composition of I and I to reflect persons with qualifications Dr. Kapitany did not possess" (AR, vol. XIII: p. 2046). The reasons for which the majority made this finding was that Dr. Valadares (at that time no longer the acting director) hired the two respondent doctors, both virologists, only one year previously, and on the ground that the competition did not seek physicians (AR, vol. XIII: p. 2046). Another reason arises from this passage of the majority's decision (AR, vol. XIII, p. 2047):

The Commission and the respondent made a great deal of Dr. Kapitany's evidence on the two statements which Dr. Kapitany allegedly repeated to Dr. Joshi. The respondent argued that without corroboration of the statement including the word "browns", there was nothing to connect these complaints with race. The Commission argued that Dr. Kapitany did not deny either statement and that this was somehow evidence that either statement or both statements were made by Dr. Gadd.

The respondent argued that Dr. Joshi is an incredible witness because Dr. Kapitany did not recall making the statement, "these two browns will not be in " to Dr. Joshi. The respondent also argued that Dr.Joshi did not repeat the identical statement to Michael Ryan or to the Canadian Human Rights Investigator. Dr. Joshi stated that he did repeat the identical statement to the investigator and he did repeat the identical statement to Michael Ryan. We find that each complainant heard prior to the job interview that he would not succeed in the job competition

         [emphasis added]

(When the tribunal refers to "the Commission", it means the CHRC which appeared before it, by counsel.)

The two members found this: the respondents knew prior to the interview that they would not succeed in the competition.

     The competition interviews were held on May 30, 1989, in a local hotel room. The interview committee was composed of Drs. Johnson, Gadd, Khan and Krupa. Dr. Chander was interviewed first. He noted that the only member taking notes was Dr. Johnson, and that he left the room at one point to take a telephone call. Dr. Chander was advised by letter that same day, May 30, 1989, signed by Mr. Dan Demers, that none of the candidates (there were only two: Drs. Chander and Joshi) qualified for the position (AR, vol. XIII: p. 2048).

     Dr. Joshi's interview immediately followed Dr. Chander's. Dr. Joshi also observed that Dr. Johnson was the only member taking notes. In the middle of the interview, Mr. Dan Demers was let into the room. After the interview (which ended about 12:20 p.m.), Dr. Joshi returned to his office. He noted that all of the interviewers were at work by 1:30. The tribunal found that the interview panel had deliberated for about thirty minutes in total for both interviews. Dr. Joshi also received a letter identical to Dr. Chander's, also dated May 30, 1989.

     On June 6, 1989, Mr. Ryan, the union representative, informed the Department that Drs. Chander and Joshi should be made permanent because the process might have been tainted with racism. On June 8, 1989, Dr. Joshi received notice from Dr. Johnson that his term of employment would end only two days later, on June 10, 1989. In July, 1989, Dr. Johnson ended Dr. Chander's secondment with I & I. On June 9, 1989, Dr. Joshi filed a grievance regarding the downgrading of his PREA. This was successful. On June 13, 1989, Dr. Joshi made a statement to the Commission and on June 15, 1989, the two doctors sent a joint letter to the Public Service Commission requesting an investigation into whether the two were victims of subtle racial discrimination (AR, vol. XIII: p. 2050).

     For the next couple of months, Mr. Ryan and the complainants researched the complaint. The majority members found Mr. Ryan to be "forthright and sincere" and that he was an "important witness for the Commission because he confirmed that the response to the challenge by the union representative and to the complainants was evasive at best." (AR, vol. XIII: p. 2050). Mr. Ryan requested that the Department give him the notes which were taken during the meeting. After these were not turned over, he arranged a meeting with the Department, with Dr. Chander, Khan, Johnson being present. He was told that four sets of notes were taken at the interview and were on file, but that Dr. Krupa had those notes. Dr. Krupa was then temporarily out of the country. Mr. Ryan testified that these responses were confirmed by letter. Mr. Ryan also confirmed that Dr. Krupa had arranged for a typed candidate assessment sheet based on the consensus of the interview panel. Ultimately, the only notes turned over were Dr. Johnson's, and that was after an access to information request. The majority found ultimately that Dr. Johnson was the only person taking notes (AR, vol. XIII: p. 2051).

     At the tribunal's hearing, the respondent (which is the applicant before this Court) did not call any evidence. As applicant here, it now raises eight issues. Each will be dealt with in turn.

     In human rights cases before a tribunal, the onus is on the complainant to establish a prima facie case. Once this is done, the onus shifts to the respondent to rebut the allegation. To do so, the respondent must provide an explanation at least equally consistent with the prima facie case. If this be done successfully, the complainant must prove, on balance of probabilities, that a prohibited ground of discrimination took place (O.H.R.C. v. O'Malley and Simpson-Sears, [1985] 2 S.C.R. 536 at 558).

     The standard of review of the human rights tribunals on questions of law is correctness. Reviewing courts will defer on fact finding. This was stated by the Supreme Court of Canada in Canada (A.G.) v. Mossop, [1993] 1 S.C.R. 554, where Mr. Justice La Forest wrote at p. 585:

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 on a standard of reasonability.

This was affirmed by the Supreme Court in Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571 and in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825.

     The crux of the government's case is asserted to be this: The reason why Drs. Chander and Joshi were not promoted was a result of the conflict of personalities during the "fluconazole incident" and not racism.

     The first issue, as framed by the applicant, is whether the two members erred in their application of the tests regarding a prima facie case and the burden of proof, and whether they failed to determine that the respondents met their burden. As racial discrimination is a reprehensible act, the applicant submits that the standard of proof should be higher than the balance of probabilities, which exists in ordinary discrimination cases [Ontario Human Rights Commission v. Etobicoke (1982), 3 C.H.R.R. D/781; O.H.R.C. v. Jeffery House et al. (Action No. 520-93), November 8, 1993 (Ont. Div. Court)]. In the Jeffery House case, a three member panel of the Ontario Divisional Court stated:

Any racial discrimination strikes at the very heart of a democratic pluralistic society. It is, of course, of the utmost seriousness if any such racial discrimination exists or has existed in an important public institution such as a major hospital. The consequences attendant on a negative finding by a Board of Inquiry would be most severe for the Respondents as any such finding could and should seriously damage the reputation of any such individual.

     Fair enough. The error which the applicant alleges the majority members made is that they did not turn their mind to "determining whether the conflict and anger which resulted from the fluconazole incident constituted an alternative explanation for the event" (AR, vol. XVII: p. 2346). Not considering whether an alternative explanation exists is an error in law. The tribunal did turn its mind to whether the applicant had a reasonable alternative explanation and found that it did not: "No reasonable explanation was provided by the respondent. The explanations which were provided are inconsistent with the evidence. The complainants have made out a prima facie case which has not been rebutted by the respondents." (AR, vol. XIII: pp. 2059-2060). This is a factual call, and while this Court may come to an altogether different conclusion (as did the tribunal chairperson), it will defer to the factual determination made by the tribunal.

     The second issue which the applicant raises is whether the majority erred by not giving proper effect to evidence brought out in cross-examination and by failing to appreciate that the evidence brought out in cross-examination is evidence despite the fact that the applicant did not call any witnesses. This is based on the majority's finding that the applicant's "response took the form of plain denial with no witnesses to provide direct evidence of explanation or different version of the facts." (AR, vol. XIII: p. 2051). The applicant submits that this is an error in law because the two members did not recognize that the answers evinced in cross-examination, and an error in fact because ignoring the evidence resulted in a finding made in a perverse or capricious manner without regard for the material before them.

     The majority was aware that the evidence, and the Department's position, was being advanced in the cross-examination. The full context of the above quoted sentence runs, thus

At the conclusion of the Commission's presentation of the evidence, the respondent announced its intention to call no evidence taking the position that there was no case to answer. The respondent vigorously responded by argument through counsel to the complaints from beginning until the end of the hearing. The respondent's response took the form of plain denial with no witness to provide direct evidence of explanation or different version of the facts.(AR, vol. XIII: p. 2051)

This quote from the decision shows that the majority clearly realized that the Department was bringing forward evidence. They found that the strategy of the respondent (here, the applicant) took the form of plain denial. Thus there is no error of law. And, as noted above, the majority did not find that the evidence which was adduced by the applicant through cross-examination was enough to rebut the prima facie case.     

     The third issue is whether the two members erred in applying the elements, which they stated were required by law, to prove a prima facie case of discrimination. There exist two tests, very similar, which can be applied to determine whether a prima facie has been made out in the employment context. Both were quoted by the majority. The first was enunciated in Shakes v. Rex Pak Ltd. (1982) 3 C.H.R.R. D/1001, and described the prima facie case thus:

a) that the complainant was qualified for the particular employment;

b) that the complainant was not hired; and,

c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.

     The second was set out in Israeli v. Canadian Human Rights and Public Service Commission (1983), 4 C.H.R.R. D/1616:

a) that the complainant belongs to one of the groups which are subject to discrimination under the Act, e.g., religious, handicapped or racial groups.

b) that the complainant applied and was qualified for a job the employer wished to fill;

c) that, although qualified, the complainant was rejected; and

d) that, thereafter, the employer continued to seek applicants with the complainant's qualifications.

     Each applies to a different situation. Shakes applies to situations where someone other than the complainant is hired. Israeli applies when the employer does not hire the complainant and then continues to look for employees. The applicant submits that the two members erred because it found that there was no evidence led for the third part of the Shakes test and still found that a prima facie case had been made out.

     The majority members made no such error. They applied the tests as follows (AR, vol. XIII: p. 2058):

The evidence is that there were no other candidates to compare to Drs. Joshi and Chander. Dr. Joshi and Dr. Chander competed in the closed or internal competition and were the only two candidates for positions in that competition. The complainants were qualified for the position sought and after notifying the complainants by letter dated the day of the interview that they were not qualified, the respondent went on to interview candidates with the same qualifications as the complainants in an open or external competition. Drs. Joshi and Chander were not compared with the open competition candidates.

The applicant's position is that whether the position was filled or not does not matter: "The real question is who was chosen to fill that position" (AR, vol. XVII: p. 2357). The applicant then states the elements for Shakes were not met. This begs the question. The tribunal found that the two respondents were not compared with the open competition candidates. Therefore the only relevant time for assessment is the closed competition. Ergo, the Israeli test applies.

     As the above excerpt illustrates, the majority understood this distinction. In their conclusion, they applied the Israeli test: "We conclude that ample evidence was provided to establish a prima facie case of discrimination. Each complainant was qualified for the job but neither was hired. The respondent continued to seek applicants with the qualifications presented by the complainants." (AR, vol. XIII: p. 2059).

     The majority members, at p. 2058 of the application record, did state that no evidence was led to establish who was ultimately hired. This was unnecessary in view of their earlier finding that Dr. Joshi and Dr. Chander were not compared to the open competition candidates. There is no error in the application of the elements of the prima facie case.

     The fourth issue is whether the majority members understood the significance of the fluconazole event. The applicant submits that the majority members erred because they thought the applicant was raising evidence that the respondent's scientific concerns were misplaced. The applicant submits that the majority should have turned their minds, as the dissenting member did, to whether the event resulted in a changed attitude to the respondents.

     The majority members found three inferences could be drawn about the employer's attitude from the fluconazole event. The first was that the respondents' concerns regarding the drug were scientifically ridiculous. The second was that the concerns were inconsequential in light of the urgency for approving the submission. The third was that "dispute about scientific opinion was not allowed. *** There was no evidence that discussion or difference of scientific opinion about the fluconazole submission could delay the clinical trials of this important drug". (AR, vol. XIII: pp. 2052-53). The dissenting member found that the fluconazole event was evidence that the reason why the two doctors were not promoted was because the other members of I & I were frustrated with what they perceived as unnecessary stalling behaviour (AR, vol. XIII, pp. 2064-2066).

     In terms of judicial review, the question is whether to overturn a finding of fact, founded on reasonable inference. The two opinions show that the factual determination regarding the significance of the event could be seen two different ways. Inferences could be drawn from the circumstances in which the complainants found themselves. This is far more factual than legal, and this Court will defer to the findings of the majority members. The Court also notes that the applicant took a risk in not calling any witnesses, and that had even one witness been called who could attest to professional not racial "tension" at I & I, the applicant's point might have been far more readily apparent.

     The fifth issue raised is whether the majority erred in relying on Dr. Kapitany's evidence. The evidence in question concerns the two statements which were alleged to be made by Dr. Kapitany, a) "those two browns won't be in" (allegedly uttered by Dr. Gadd and related to Dr. Joshi by Dr. Kapitany) and b) that Dr. Kapitany had said that Drs. Chander and Joshi would not be successful in the competition.

     The applicant goes to great length to show that the members erred in relying on Dr. Kapitany's statement, and makes vigorous written submissions regarding the circumstances around Dr. Kapitany's testifying. The point, however, is this. The majority found Dr. Joshi to be credible. Therefore they believed Dr. Joshi. They found that Dr. Kapitany, on the other hand, could not recall but could not deny making the statements. The majority wrote (AR, vol. XIII: p. 2046):

Dr. Kapitany did not recall reporting to Dr. Joshi that Dr. Gadd said: "these two browns will not be in ". Dr. Kapitany did not have a specific recollection of having said: "you two will not be in," but he was unable to deny making that statement.

     The applicant seems to urge this Court to find either that Dr. Kapitany's failure to remember but inability to repudiate, should be of equal weight to Dr. Joshi's testimony or that the majority erred in finding what the contents of the conversation were between Dr. Kapitany and Dr. Gadd regarding the composition of I & I. The majority made no such error. They had it on Dr. Joshi's credible testimony. They rejected Dr. Kapitany's version of the conversation regarding I & I's composition. This is a credibility finding and entirely within the purview of the tribunal. The majority was well aware of the circumstances under which Dr. Kapitany was testifying. For example, the transcript reveals the following exchange between the Commission counsel and Dr. Kapitany at the hearing:

Q. Do you recall making this answer "I can't say that. You are trying to make me say things that are not true. I will not lie for you. You are being abusive." Do you remember saying that?

A. No, sir. I do recall that you pointed out that if I didn't give you answer that you wanted I would be subjected to a $5,000 fine or I could be sent to jail, and I told you that regardless of how you threatened me I can only answer the questions as truthfully as I can.

***

Q. And do you recall this as your answer: "I told you I don't know. I will not lie for you, even though I am a friend of Chander." Do you recall giving me that answer?

A. I recall saying these things to you again, sir, but in the course of this discussion these are not, as I recall, the answers that I gave to you to the questions that you are asking. These are other questions, other discussions that came about as the result of an extremely aggressive, abusive attack against me, sir, in which you threatened me, in which you threatened to have me fine, in which you threatened to send me to jail --

***

Q. Following that answer, "I gave lots of people a ride", did I make this statement to you "Dr. Kapitany, you are not being helpful".

A. Yes, I recall you saying things like that. Yes. You didn't say "Dr. Kapitany, you're not being helpful." I believe, sir, you were extremely agitated, you were red in face, you were virtually yelling at me "Dr. Kapitany, you're not helpful". You were standing over me.

Within the context of this discussion you were pounding a book with you fingers, saying that if I didn't co-operate with you I was going to be sent to jail, I was going to be fined $5,000, and this followed upon, when I came into the room, an incredible assault upon any person by Dr. Diar, who questioned my religion, how I was living up to my religion, if I didn't answer the questions, the words he used were "Tell me about your precepts. How can you say you live up to your precepts?" I don't remember the sequence. Interspersed with this, sir, was some of the worst abuse I've ever taken in my life. (AR, vol. IX: pp. 1359-61)

It does appear that the CHRC's counsel were emotionally bound up in their task. Such was however regarding Dr. Kapitany, at least, all before the tribunal to be weighed. It does not detract from Dr. Joshi's credibility.

With this exchange in mind, this Court notes the words Ontario Divisional Court in Jeffery House:

We are also of the opinion, while not necessary to our decision, that the role of Commission counsel is analogous to that of the Crown in criminal proceedings.

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to bring before a jury, what the Crown considers to be credible evidence relevant to what is alleged to be a crime.

R. v. Stinchcombe, p. 333.

The tradition of Crown counsel in this country in carrying out their role as "ministers of justice" and not as adversaries has generally been very high.

R. v. Stinchcombe, p. 341.

That the majority was cognizant of these circumstances is evident in their reasons at pp. 2046-47 of the application record. It is not for this Court to intrude on the majority's finding of credibility. Therefore, the majority members of the tribunal did not err in treating Dr. Kapitany's testimony in the manner they did.

     The seventh issue before the Court is whether the two members erred by not relying upon the notes of the selection panel which stated that the respondents did not perform well during the interview. The thrust of this argument seems to be that the evidence did not support the majority's finding that the respondents were qualified for the position, ergo showing a missing element of the prima facie case. The majority found that the two were qualified, supported by the fact that the complainants' PREAs were "fully satisfactory". Even though this Court might have the right to disagree with such factual determination, the Court must defer to the finding. It is neither perverse nor capricious.

     The second part of the applicant's submission with respect to this issue is the tribunal's finding that the departmental representatives "lied" and made evasive responses to the complainants' union representative's inquiries (AR, vol. XIII: pp. 2051-51, 2059). The Department submits that this finding was based on Mr. Ryan's testimony, to the effect that he was told by the Department that there were extensive notes (four sets) taken by members of the selection panel and that this was inconsistent with the majority's conclusion that only Dr. Johnson took notes in the interview (AR, vol. XIII, p. 2051). It is hardly inconsistent that the majority found that the Department lied to Mr. Ryan while finding that, in fact, there was only one set of notes. This correct finding, however, made no impact on the outcome. Nor is there any evidence that it somehow prejudiced the majority members against the Department.

     The eighth and final issue in this case is whether the majority members erred in finding that the complainants were not evasive and did not make extreme or loose allegations of racism. The applicant submits that "the record is replete with evasive answers and loose allegations of racism by the two respondents."

     The applicant's counsel complained about the majority's appreciation of the evidence and in particular the majority's findings of credibility (or not) in weighing the respective testimony of the complainant, Dr. Joshi and the witness Dr. Kapitany, which he characterized as double hearsay. His complaint could well be directed, instead, to Parliament, for the majority made no findings forbidden to them by the legislation.

50.(2) In relation to a hearing under this part, a tribunal may

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(c) receive and accept such evidence and other information, whether on oath * * * or otherwise, as the tribunal sees fit, whether or not that evidence or information is or would be admissible in a Court of law.

     Parliament itself, in so legislating, rejected such wisdom of the ages and human nature as resides in the rules of evidence, which Courts apply, and freed Human Rights Tribunals from their strictures. Although the evidence upon which the tribunal principally based its finding of racial discrimination was meagre, indeed, there was some evidence. Dr. Joshi, found to be credible, testified that Dr. Kapitany reported to him that Dr. Gadd predicted that the "browns" would not be promoted. Dr. Kapitany testified that he could not remember that, not that it never happened. Dr. Gadd did not testify. There, meagre as it is, stands some evidence, receivable and acceptable pursuant to Parliament's will as legislated in the passage above quoted.

     The majority drew the reasonable inference that the conversation reported by Dr. Kapitany did not refer to the "browns" being ineligible because they were, and are, not much needed physicians, because the specifications for the positions in question simply did not call for physicians. The "browns", by reasonable inference, were the complainants.

     The thrust of the applicant's argument is that the majority would not have made the credibility finding it did with respect to the complainants had it considered the examples which the applicant cites. Again, this would require the Court to overturn fact and credibility findings by the tribunal, an area in which it is expert. Just as the Convention Refugee Determination Division is expert in assessing facts and credibility (Aguebor v. M.E.I. (1993), 160 N.R. 315) , so is a Human Rights Tribunal. While this Court may have assessed the credibility of the respondents in a far different manner, considering some of the examples which the applicant cites, it did not hear all of the testimony and will defer to the majority's assessment of facts and credibility. Evidence of discriminatory racism is frequently difficult to unearth. After all, Dr. Gadd and his colleagues were no brash Zündels, Keegstras or McAleers. The majority's decision is not "patently unreasonable".

     For these reasons, the application for judicial review in T-58-96 is dismissed.

     The issue in the related application T-957-96 concerns the other decision of the tribunal, this time unanimous, on the damages and remedies which were awarded March 2, 1996. The issues before the Court were framed by the applicant as follows [AR (T-957-96): vol. II: p. 35]:

(i) The tribunal erred in deciding "that the evidence overwhelmingly supported the conclusion that each of the two complainants was qualified for a BI-04 position" and hence erred and acted without or beyond its jurisdiction in ordering that the complainants "be appointed to an appropriate position at the BI-04 level on an indeterminate basis". Given the evidence before it, including the fact that the complainants' colleagues and superiors questioned those qualifications, the tribunal erred by not referring the issue of whether the complainants were qualified for a BI-04 position to a new selection board composed of at least one person who had the necessary scientific knowledge, with accompanying directions to ensure a fair, informed and non-partial assessment of that issue.

(ii) The tribunal erred in ordering the maximum award of $5,000 to Dr. Joshi.

If these submissions be not successful, the applicant will not pursue the grounds in the originating notice of motion which challenged the tribunal's awards for one year of lost income at the BI-04 level.

     In O'Malley, supra, the Supreme Court made this remark about remedies in human rights cases 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 discrimination but rather to provide relief for the victims of discrimination."

     The remedies provision of the Act is section 53. It reads:

53. (1) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is not substantiated, it shall dismiss the complaint.

(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:

(a) that the person cease the 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 16(1), or

( ii) the making of an application for approval and the implementing of a plan pursuant to section 17,

in consultation with the Commission on the general purposes of those measures;

(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;

(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

(d) that the person compensate the victim, as the Tribunal may consider proper, for any or all additional cost of obtaining alternative goods, services, facilities or accommodation and for 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.

     The tribunal rejected the applicant's submission that a new selection committee should be struck and the competition done over again. The tribunal wrote (AR, vol. II: p. 24):

Before making order in this case, the Tribunal wants to make the statement that it is unanimous that the decision rendered December 13, 1995 by both the majority and the dissent clearly found, if not in these specific words, that the evidence overwhelmingly supported the conclusion that each of the two complainants was qualified for a BI-04 position

Furthermore, no evidence was called by the Respondent to counter such a conclusion.

The Tribunal finds that it would be an inappropriate remedy to order a further selection board to determine this issue.

The tribunal then went on to order that Dr. Joshi should be re-instated to an appropriate BI-04 position on an indeterminate basis, pursuant to paragraph 53(2)(b) of the Canadian Human Rights Act. The tribunal also awarded $63,588.44 in compensation for lost wages and $5,000 damages under paragraph 53(3)(b) of the Act for Dr. Joshi's hurt feelings. With respect to Dr. Chander, who was still employed by the applicant as a BI-03, the tribunal ordered that Dr. Chander be appointed as a BI-04 on an indeterminate basis, that $40,601.25 be paid for lost wages and that he be paid $1,000 for hurt feelings. Both were to be given the new positions whenever reasonably possible.

     As noted above, both in the tribunal's decision regarding remedies and in the discussion of whether a prima facie case had been made out, the unanimous tribunal made a factual determination that both complainants were qualified for the position. The applicant asks this Court to overturn a finding of fact based on evidence which, although possibly not the strongest, does not reveal a capricious or perverse finding of fact. Further, it would offend common sense for this Court to find that the tribunal properly found that the respondents had made out a prima facie case, in which qualification is an element, and then order a new competition to determine whether or not the candidates were appropriately qualified. The tribunal made no error in law or fact in rejecting this submission. The same may be said for Dr. Joshi's award.

    

     As well, the tribunal was also correct in law in ordering that both Dr. Joshi and Dr. Chander be reinstated on the first "reasonable occasion." This accords with the Act and with Mr. Justice Rothstein's decision in Canada v. Uzoaba, [1995] 2 F.C. 569. Re-instatement also applies to promotion. In Uzoaba, Rothstein J. found at pp. 576-77 that

in terms of reinstatement, the question is one of the sufficiency of evidence. If Dr. Uzoaba had been reinstated at a higher position in the absence of evidence showing the promotion was reasonably foreseeable then the Tribunal would have erred. But that is not the case here. There was some evidence indicating a serious possibility Dr. Uzoaba would have attained the level of WP-5 by the time of the Tribunal's decision. For the "serious possibility" test, see Attorney General v. Morgan (1991), 85 D.L.R. (4th) 473 at 479 (F.C.A.) per Marceau J.A.

The tribunal had before it, in the words of Justice Rothstein., "some evidence" which again "puts the matter beyond the reach of this Court." (p. 579). This decision is, again, not patently unreasonable, but in fact, reasonable.

     The tribunal also quoted the Morgan case (also reported at [1992] F.C. 401) with respect to damages and adopted the reasonable foreseeability test. It made no error in assessing damages because it had all of the evidence of lost income before it. The application for judicial review (certiorari) in file T-957-96 is also to be dismissed.

     For these reasons both of these applications for judicial review are dismissed. Rule 1618 applies in the usual manner.

    

Judge

Ottawa, Ontario

May 21, 1997