Docket: T-38-11
Citation: 2012 FC 378
Ottawa, Ontario, March 30,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
ALI TAHMOURPOUR
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
(ON BEHALF OF THE ROYAL
CANADIAN MOUNTED POLICE)
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Ali Tahmourpour, seeks judicial review of a decision of the Canadian
Human Rights Tribunal (the Tribunal), dated December 13, 2010. The Tribunal
found that there were no facts, reasons or causal connection that would justify
a particular remedial order and the continuation of compensation for lost wages
beyond the grace period of two years and twelve weeks (2010 CHRT 34).
I. Background
[2]
The
Applicant is a Canadian citizen of Iranian origin and Muslim faith. In 1999,
he was dismissed from the Royal Canadian Mounted Police (RCMP) as a training
cadet after being subjected to racist jokes and verbal abuse.
[3]
He
brought a human rights complaint against the RCMP claiming that he had been
unfairly evaluated and terminated for discriminatory reasons related to his
race, ethnicity and religion contrary to the Canadian Human Rights Act,
RSC 1985, c H-6 (the Act). Although the Commission initially dismissed
the complaint, the Federal Court of Appeal remitted the matter back for
re-determination in 2005 (see Tahmourpour v Canada (Solicitor
General),
2005 FCA 113, [2005] FCJ no 543).
[4]
In
a decision dated April 16, 2008, the Tribunal found that the Applicant had been
terminated from the RCMP for discriminatory reasons (2008 CHRT 10). It also
ordered several remedies, including:
(iii) The Respondent shall pay Mr.
Tahmourpour compensation for salary and benefits he lost for the first 2 years
plus 12 weeks of work as an RCMP officer after graduating from the Depot. The
compensation shall be discounted by 8%;
(iv) The Respondent shall pay Mr.
Tahmourpour the difference between the average full time industrial wage in Canada for persons of his age, and
the salary that he would have earned as an RCMP officer until such time as Mr.
Tahmourpour accepts or rejects an offer of re-enrollment
in the training program at Depot. The Respondent shall compensate Mr.
Tahmourpour for the average amount of overtime paid to other constables who
graduated from Depot in 1999, unless otherwise agreed upon by the parties. The
compensation shall be discounted by 8%;
[5]
The
Respondent’s application for judicial review of the decision was allowed by
Justice Russel Zinn of this Court (see Tahmourpour v Canada (Royal Canadian
Mounted Police), 2009 FC 1009, [2009] FCJ no 1220). On appeal from the Applicant,
however, Justice Zinn’s judgment was overturned with the exception of the
“question of the cap or limitation on the top-up portion of the compensation
award” as provided in remedial order (iv) (Tahmourpour v Canada (Royal
Canadian Mounted Police), 2010 FCA 192, [2010] FCJ no 877). Justice Karen
Sharlow, writing for the Court of Appeal, provided at paragraph 49 that “this
matter is referred back to the Tribunal for reconsideration of the first
sentence of item (iv) of paragraph 267 in accordance with the reasons for
judgment of the Federal Court of Appeal in A-453-09.” She summarized her
reasons for doing so as follows:
[44] It is not clear from
the record whether the second time period has ended, or when it is likely to
end. If this part of the remedy is read literally and Mr. Tahmourpour simply
declines to accept or reject an offer of re-enrolment, the second time period
may never end unless, as counsel suggested at the hearing of this appeal, the
offer of re-enrolment is made subject to a condition that it must be accepted
within a stipulated time or be deemed to have been rejected.
[…]
[46] [...] It is necessary to take
into account Mr. Tahmourpour's obligation to mitigate his losses. Mr.
Tahmourpour did not make sufficient efforts to minimize his losses from the
time he left the Depot until the commencement of the hearing. However, from
2000 to 2002, it was difficult for him to work because of the psychological impact
of his experiences at the Depot, and because of the time necessarily spent by
him on his complaint. On that basis, the "grace period" was
established at 2 years and 12 weeks. However, Mr. Tahmourpour could have
been gainfully employed after that time.
[47] As I understand the Tribunal's
decision, there were no other facts that were taken into account in determining
the amount of the monetary compensation awarded to Mr. Tahmourpour. I am unable
to discern from the Tribunal's decision why the Tribunal chose, as the end
point of the second time period, the date on which Mr. Tahmourpour accepts or
rejects an offer of re-enrolment, as opposed to an earlier fixed date. I agree
with the judge that the Tribunal did not put its mind to the question of when,
after the end of the grace period, the discrimination suffered by Mr.
Tahmourpour ceased to have an effect on his income earning capacity. In the
absence of an explanation from the Tribunal, that part of the Tribunal's award
providing for the top-up cannot be found to be reasonable.
[48] […] In my view, the question as
to what cap or other limitation should be placed on the top-up is a question
that must be answered by the Tribunal. Therefore, I would return this matter to
the Tribunal only for the purpose of considering the imposition of a cap or
limitation on the top-up.
[6]
In
light of the Federal Court of Appeal’s decision, the Director, Registry
Operations of the Tribunal, in a letter dated September 29, 2010, issued the
following direction:
The parties are invited to
provide written submissions to the Tribunal by Tuesday, October 19, 2010 on the
issue of how to proceed with this matter. The Tribunal requests that
submissions and supporting authorities be provided in duplicate, with
authorities highlighted or page numbers referenced. Once we receive the
parties’ submissions, the Tribunal will thereafter review the need for a
scheduled Case Management Conference Call regarding this matter.
[7]
In
response, Applicant’s counsel requested that the Tribunal Member who originally
heard the case hear the issue. He stated that the “parties could file brief
submissions and make oral arguments before Ms. Jenson and this matter could be
concluded expeditiously and fairly, hopefully bringing an end to a legal
odyssey that has lasted a decade.”
[8]
While
counsel for the Respondent reserved the right to make further submissions on
any new issues arising from the Applicant’s submissions, she took the position
that “[n]o new or further evidence is required nor appropriate, as this determination
was required to be made at the time on the record as it then stood. Therefore
there is no merit or benefit to having a hearing to call evidence on this
issue.”
[9]
In
a letter dated November 25, 2010, the Tribunal informed the parties that the Member
who originally heard the case was not available and the matter had been
assigned to Tribunal Member Wallace Craig. This Member would review the
material submitted and “thereafter issue directions and/or a ruling on how to
proceed.”
[10]
Tribunal
Member Craig released his final decision regarding remedial order (iv) as
directed by the Federal Court of Appeal on December 13, 2010 without any
further communication with counsel for the parties. This decision is now
before the Court.
II. Decision
Under Review
[11]
Beginning
with the decision of the Federal Court of Appeal, the Tribunal reviewed the
determinations in relation to the remedy. For example, it considered the
conclusions of Justice Sharlow that the “top-up” in remedial order (iv) be
reviewed by the Tribunal to impose a cap or other limitation.
[12]
It
also noted the comments of Justice Zinn in the Federal Court decision regarding
the determination in Morgan v Canada (Canadian Armed Forces), [1992] 2
FC 401 (CA) that an error resulted from the failure to establish a cap or
cut-off point for the compensation period independent of the reinstatement
order.
[13]
Considering
the factual findings in the Tribunal’s decision, Member Craig referred to Mr. Tahmourpour’s
weak evidence in attempting to minimize his losses, his lack of real efforts to
pursue gainful employment and that he could have been gainfully employed until
the present time as there was no permanent damage to his ability to work.
[14]
The
Tribunal recognized that there was some inconsistency in its previous reasons
regarding the time period for which Mr. Tahmourpour was to be compensated. While
the Tribunal initially required the RCMP to pay the “top-up” from the end of
the “grace-period” until the date of her decision, the remedial order required
the “top-up” to be paid until such time as Mr. Tahmourpour accepted or rejected
an offer of re-enrollment in the RCMP training program.
[15]
At
paragraph 9 of its reasons, the Tribunal therefore concluded:
Bearing in mind the decisions
of the Federal Court of Appeal in Morgan and Chopra, and having
examined the judgment of the Tribunal on this issue, in particular the
Tribunal’s findings that Mr. Tahmourpour could have been gainfully
employed from the time of the expiry of the “grace period” until the date of
the Tribunal’s decision, that there was no evidence that the discriminatory
conduct caused any permanent damage to Mr. Tahmourpour’s ability to work, and
that Mr. Tahmourpour did not make sufficient efforts to minimize his losses, I
am unable to identify any facts, reasons or causal connection that would
justify remedial order (iv) and the continuation of compensation for lost wages
beyond the grace period of two years and twelve weeks.
III. Issues
[16]
This
application raises the following issues:
(a) Did the Tribunal breach natural
justice or procedural fairness by making a determination without giving the
parties an opportunity to make further submissions?
(b) Did the Tribunal err in law by
finding that the Applicant was not entitled to loss of income compensation beyond
the two years and twelve weeks he was awarded in lost wages?
IV. Standard
of Review
[17]
As
determined in Canada (Minister of Citizenship and Immigration)
v Khosa,
2009 SCC 12, 2009 CarswellNat 434 at para 43, issues of natural justice and
procedural fairness require the correctness standard of review.
[18]
By
contrast, Tribunal decisions are reviewed based on reasonableness, including in
relation to questions of law involving the Tribunal’s interpretation of its own
statue or questions of general law in which the Tribunal has particular
expertise (see Tahmourpour, 2010 FCA 192, above at para 8; Brown
v Canada (National Capital Commission), 2009 FCA 273, 2009 CarswellNat
2931; Chopra v Canada (Attorney General), 2007 FCA 268, [2008] 1 FCR
393).
[19]
Unless
the decision fails to accord with the principles of justification, transparency
and intelligibility or is outside the range of possible, acceptable outcomes,
this Court should not intervene (see Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
A. Did
the Tribunal Breach Natural Justice or Procedural Fairness by Making a
Determination Without Giving the Parties an Opportunity to Make Further Submissions?
[20]
The
Applicant submits that the Tribunal violated his right to be heard and the audi
alteram partem rule by not providing him an opportunity to make submissions on
the substantive issue to be decided, namely the duration of the loss income
compensation referred to in remedial order (iv). According to the Applicant,
this also amounts to a violation of his legitimate expectations. His initial
submissions were confined to procedural matters and he was awaiting directions
from Tribunal Member Craig on how the matter would be handled based on the
letter dated November 25, 2010. By way of subsection 50(1) of the Act,
he is to be provided every “full and ample opportunity” to “present evidence
and make submissions.”
[21]
The
Respondent highlights provisions in the Tribunal’s Rules of Procedure that all
proceedings are to be “conducted as informally and expeditiously as possible”
and jurisdiction is retained to decide those matter not specifically provided
for in the Rules. It also notes that the Federal Court of Appeal directed the
Tribunal to reconsider the issue of quantum, but did not provide that parties
would have the opportunity to make related submissions. After reviewing the
submissions regarding process, the Tribunal implicitly decided that no further
submissions were warranted.
[22]
I
agree with the Respondent that there was no breach of procedural fairness in
not providing an opportunity to make further submissions on the substantive
issue. Based on the reasons of the Federal Court of Appeal, the Tribunal was
to reconsider one aspect of the remedial award. Both parties were previously
heard on the issue of remedy.
[23]
The
Tribunal can adopt the most expeditious procedures in dealing with the matters
before it. In this instance, the parties were able to provide input on the
process they considered most suitable. While the Applicant assumed that oral
submissions would be presented, the Respondent insisted that there is “no merit
or benefit to having a hearing to call evidence on this issue” but continued to
reserve the right to make further submissions arising from the Applicant’s
arguments.
[24]
The
decision of the Tribunal to proceed without further submissions suggests the Respondent’s
position was adopted. Given the submissions presented, the Applicant would
have been alerted to the possibility that the Tribunal was being asked to
proceed without a further hearing.
[25]
Prior
to the release of the decision, communication from the Tribunal indicated that
the Member would “issue directions and/or a ruling on how to proceed.” While
the Applicant assumed that further communication would be forthcoming, this was
not necessarily required. Interpreting these words, the release of the
Tribunal’s decision constituted the ruling on how to proceed regarding the
remedial order.
[26]
More
importantly, there was no legitimate expectation created that there would be an
opportunity to make further submissions on the substantive issue. Apart from
the request for submissions on process, there is no indication in the judgment
of the Court of Appeal or the communication with the tribunal that submissions
on the issue were expected or required.
[27]
To
create legitimate expectations on future submissions, there would have to be
some clear, unambiguous and unqualified conduct or representations in this
regard (see for example Worthington v Canada (Minister of
Citizenship and Immigration), 2008 FC 409, [2008] FCJ no 673 at
paras 64-65). Since this was not the case, the Applicant was accorded
procedural fairness and there was no violation of legitimate expectations and
the right to be heard.
B. Did
the Tribunal Err in Law by Finding that the Applicant was not Entitled to Loss
of Income Compensation Beyond the Two Years and Twelve Weeks he was Awarded in
Lost Wages?
[28]
The
Applicant asserts that the Tribunal erred by denying him compensation beyond
the initial grace period. As a victim of discrimination, human rights law
provides that he is to be made whole. He takes issue with Tribunal Member
Craig’s finding that a failure to mitigate justifies the complete denial of
further compensation when the key question is whether the Applicant would have
been earning more as an RCMP officer but for the discrimination.
[29]
He
also insists that the Federal Court of Appeal’s concern was with the open-ended
nature of the Tribunal’s initial ruling. He proposes that the remedial order
only be limited until the date he is offered re-enrolment.
[30]
The
Respondent contends that the Applicant simply disagrees with the Tribunal’s
decision and consequently asserts that he should be awarded lost wages until he
is once again employed. He does not explain how his unemployment to date is
causally connected to the discrimination he suffered while in training in 1999.
[31]
The
Tribunal has to discretion to make an order for any or all wages lost of a
result of a discriminatory practice. Regardless, there must be a causal
connection between the discriminatory practice and the losses claimed (see Chopra
v Canada (Attorney
General),
2007 FCA 268, [2007] FCJ no 1134 at para 37).
[32]
Admittedly,
the Federal Court of Appeal referred to the imposition of a cap or limitation on
remedial order (iv). However, on a review of the materials the Tribunal
reasonably recognized that there was no evidence of permanent damage to Mr.
Tahmourpour’s ability to work and that he did not make sufficient efforts to
minimize his losses that would support a causal connection as described in Chopra,
above, for the continuation of a “top-up” beyond the initial “grace period.”
VI. Conclusion
[33]
There
is no clear breach of procedural fairness or legal error in finding that
compensation would not be provided beyond the initial grace period of two years
and twelve weeks. The application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
Email this Content