Canada (Attorney General) v. Stevenson, 2003 FCT 341

Date: 20030324

Docket: T-9-02

                                          Neutral Citation: 2003 FCT 341

BETWEEN:

                     THE ATTORNEY GENERAL OF CANADA

                                                                Applicant

AND:

                          JOHN STEVENSON and

                  THE CANADIAN HUMAN RIGHTS COMMISSION

                                                              Respondents

                          REASONS FOR ORDER

ROULEAU, J.

[1]                 This is an application for judicial review of a decision of the Canadian Human Rights Tribunal ("the Tribunal") dated December 5, 2002, wherein it found that the respondent's rights under theCanadian Human Rights Act, R.S.C., 1985, c. H-6 ("the Act") had been contravened by the applicant and ordered them to take various remedial measures.

[2]                 In a letter dated July 15, 1998, the respondent John Stevenson submitted a complaint to the Canadian Human Rights Commission ("the Commission") in which he alleged that he had been discriminated against by his former employer, the Canadian Security Intelligence Service ("CSIS"), for terminating his employment because of mental disability.

[3]                 The Commission upheld the respondent's complaint and the matter was referred to the Tribunal for an inquiry which was conducted in November 2000. The Tribunal record reveals that during the course of the inquiry, CSIS vigorously contested the respondent's allegations and never conceded that CSIS had in any way violated the respondent's rights under the Act.

[4]                 On December 5, 2001, the Tribunal rejected the position taken by CSIS and found that it had contravened the respondent's rights under the Act.

[5]                 At the inquiry, the Commission requested the Tribunal to order CSIS to provide various remedies to the respondent, among them being compensation for "out of pocket" expenses incurred by the respondent and a letter of apology from the Director of CSIS. It is these two remedies which are the subject of this judicial review application. With respect to the claim for expenses, the respondent submitted to the Tribunal a list of expenses which he claimed were directly attributable to the discriminatory conduct of CSIS. The list included claims for dental expenses, salary loss for the period of the hearing before the Tribunal and the costs incurred when he sought legal advice prior to processing his remedies.

[6]                 While the Tribunal refused to award the respondent compensation for his dental expenses or lost salary during the period of the Tribunal hearing, it did award him an amount of $2,000 for his legal expenses. The Tribunal explained the rationale for its decision to award legal expenses to the respondent as follows:

"The balance of the amount claimed is for legal expenses, postage, photocopying, faxing, and courier charges. The claim for legal fees is in the amount of $3,994.64. It should be noted at the outset that Mr. Stevenson was not represented by his own counsel at the hearing. He relied on the services of counsel for the Commission to represent his interests as well as the public interest. It is not uncommon for a Canadian Human Rights Tribunal to award legal costs when a complainant is represented by his or her own counsel (Grover v. Canada National Research Council), (1992) 18 C.H.R.R. D/1; Bernard v. Waycobah Board of Education, (2000) 36 C.H.R.T. D/51. I am of the opinion, however, that awarding legal costs in this case would be justified, but not in the amount claimed. The copies of the accounts of the Complainant's solicitors indicate that Mr. Stevenson did seek legal counsel in relation to his dismissal prior to making the Human Rights complaint and that some of the services rendered were in relation to the submissions made to the Canadian Human Rights Commission. I am also mindful of the fact that the Complainant commenced and then abandoned a grievance before the Public Services Staff Relations Board. This Tribunal deems the compensation of any cost related to a pursuit of rights in a different forum to be outside of the jurisdiction of this Tribunal. I am satisfied, however, that the Complainant did have a right to consult counsel with regard to the possibility of making a complaint to the Canadian Human Rights Commission and that the legal assistance given him in respect of the submissions made to the Commission was necessary. These expenses were a reasonably foreseeable outcome of the discriminatory conduct. In the circumstances, I am prepared to award some legal costs to the Complainant which I fix in the amount of $2,000, inclusive of the claim for postage, photocopying, faxing and courier charges.^[1] (emphasis added)

[7]                 With respect to the claim for a letter of apology, the Commission requested that the Tribunal order the Director of CSIS to provide a letter to the respondent in a form approved by the Commission.

[8]                 Counsel for CSIS requested of the Tribunal that it not order the Director of CSIS to issue a forced apology on the basis that such a remedy would violate the guarantee of freedom of thought, belief, opinion and expression protected by the Canadian Charter of Rights and Freedoms ("the Charter").

[9]                 Ultimately, the Tribunal did order the Director of CSIS to provide the respondent with a letter of apology in a form approved by the Commission. In its reasons for decision, the Tribunal did not deal with the question of the constitutionality of such a remedy, notwithstanding the fact that the issue was squarely raised by CSIS:

Mr. Stevenson requests that the Tribunal order CSIS provide him with a letter of apology. In cases where the conduct of the respondent has been marked by insensitivity, human rights Tribunals have ordered that apologies be provided (Canada (Attorney General) v. Uzoaba, (1995) 2 F.C. 569 (T.D.); Hinds v. Canada (Employment and Immigration0, (1998), 24 C.C.E.L. 65, 10 C.H.R.R. D/5935 (C.H.R.T.); Grover v. Canada (National Research Council) (1992) 18 C.H.R.R. D/1, aff'd (1994) 80 F.T.R. 256). I have found that the conduct of the staff and management involved in Mr. Stevenson's health evaluation and dismissal to be irresponsible and unjustified and that a distinguished career was prematurely terminated either through incompetence or bad faith. I therefore order that the Director of CSIS provide a formal written apology to Mr. Stevenson within 30 days of this decision. The Director shall consult with and obtain the approval of the Commission with regard to the form and content of the letter of apology.^[2] (emphasis added)

[10]            On January 3, 2002, the present application for judicial review was instituted before this Court. The applicant seeks an order: (1) setting aside the Tribunal's order by which it ordered the Director of CSIS to pay the respondent $2,000 "in satisfaction of his claim for out of pocket expenses" incurred for legal costs, and (2) setting aside the Tribunal's decision by which it ordered the Director of CSIS to provide the respondent with a letter of apology in a form approved by the Commission.   

[11]            This application raises the following issues:

(1) Whether the Tribunal exceeded its jurisdiction when it ordered the Director of CSIS to pay the respondent compensation for legal costs incurred;

(2) Whether the Tribunal exceeded its jurisdiction by ordering the Director of CSIS to write a letter of apology to the respondent;

(3) In the event this Court determines that the Tribunal had jurisdiction to order the Director of CSIS to provide the respondent with a letter of apology, whether its order violates section 2(b) of the Charter and, if so, whether it can be justified under section 1.

[12]            The Applicant submits that section 53 of the Act provides an exhaustive list of the types of remedies that the Tribunal may award. The Tribunal does not have jurisdiction, inherent or otherwise, to order remedies other than those provided for in the legislation. It is submitted that when Parliament enacted the legislation, it did not bestow upon the Tribunal the jurisdiction to award legal costs or compensation for legal expenses incurred by a complainant with respect to a human rights complaint. Consequently, the Tribunal's order to this effect in the case at bar is ultra vires and must be struck.

[13]            The Applicant also takes the position that the legislation does not bestow upon the Tribunal the jurisdiction to punish those found in violation of a person's human rights with forced apologies. Therefore, the Tribunal's order to this effect in the present case is ultra vires and must be struck as well. Finally, it is submitted that even if the Tribunal had jurisdiction to make the order coercing a forced apology from the Director of CSIS, such order is contrary to section 2(b) of the Charter and can not be justified in a free and democratic society pursuant to section 1.

[14]            The Respondent takes the position that legal expenses are the same as any other expense a complainant may incur in the course of pursuing his complaint before the Tribunal and for which he may be compensated pursuant to paragraph 53(2)(c) of the Act. It is argued that there is no reason to restrict the ordinary meaning of the expression "any expenses incurred". Consequently, the Tribunal had jurisdiction in the present case to award compensation to the respondent for legal expenses incurred in the course of preparation for filing his complaint for discrimination before the Commission.

[15]            It is further submitted that the Tribunal has jurisdiction to order individuals or institutions to provide a successful complainant with a letter of apology. Such letters are frequently ordered by the Tribunal where the respondent's behaviour has been marked by insensitivity, bad faith or malice. Such an award also fits squarely within the Tribunal's broad mandate to provide meaningful remedies in cases of discrimination.

[16]            Finally, it is argued that the Tribunal's order in the present case requiring the Director of CSIS to write a letter of apology to the respondent does not violate section 2(b) of the Charter since the Director is not ordered to express opinions that are not his own. Further, there is to be no publication of the apology within the organization and there is no restriction on the Director should he wish to explain the nature of the apology and the fact that he, on behalf of the organization, is compelled to provide the letter as part of a remedy ordered by the Tribunal: Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 at paras. 124-131 (S.C.C.). It is argued that, in any event, a violation of section 2(b) of the Charter in the case at bar would be justified under section 1.

[17]            Subsections 53(2) and (3) of the Act establish several broad remedies made available to the Tribunal if it concludes that a complaint is substantiated. Specifically, these provisions state:

[18]            The question of whether or not the Act empowers the Tribunal to order compensation for legal expenses has been the subject of three decisions of this Court. In two cases, the Court overturned Tribunal orders which purported to order legal costs to the complainants on the basis that the Tribunal did not have jurisdiction. In the third one, the Court upheld the Tribunal's order with respect to legal costs. In light of this inconsistency in the case law, a review of these decisions is appropriate.

[19]            In Canada (Attorney General) v. Lambie et al. (1996), 124 F.T.R. 303 (F.C.T.D.), one of the issues was whether the Tribunal had the power to award the claimant a sum for "leave and time spent to develop and prepare his complaint". Nadon J. (as he then was) stated the following at pages 314-315:

[...] The relevant statutory provision is paragraph 53(2)(d).

In my opinion the word "expense" is not broad enough to cover time spent in preparation except in exceptional circumstances. "Expense" is defined in Black's Law Dictionary, 5th ed., [St. Paul: West,] 1979 at 518 as:

That which is expended, laid out or consumed. An outlay; charge; cost; price. The expenditure of money, time, labor, resources, and thought.

However, in addressing the same statutory provision as in this case, the Canadian Human Rights Commission stated:

[Paragraph 53(2)(d)] is intended to cover expenses directly related to the discriminatory conduct, and not expenses related to legal proceedings under the Human Rights Act. The latter are more a question of costs, and there is no provision in the Act for recovery of costs. Consequently, I do not believe I have any authority to make an award for expenses related to the hearing. I would note that evidence respecting the lost wages was not led before me so that, even if I had the authority to include them in my award, I would not be able to determine the amount. [Morrell v. Canada (Employment & Immigration Commission) (1985), 6 C.H.R.R. D/3021 per Kerr, Commissioner.]

There was no evidence that the leave and time compensated for in the Review Tribunal's order were exceptional. The Respondent's case was handled by a

Commission lawyer and nothing indicates that the Respondent was required to make any preparations beyond what would ordinarily be expected in such a case. The statute does not confer the jurisdiction to award costs although Parliament could easily have included such a power. (emphasis added)

[20]            In Canada (Attorney General) v. Green (2000), 183 F.T.R. 161 (F.C.T.D.), Lemieux J. relied on the decision in Lambie, supra, in support of his conclusion that the Tribunal has no jurisdiction to make an award of legal costs to a complainant. More specifically, he stated the following at page 210:

The Tribunal ordered the payment of legal costs of $4,057.22. There was evidence in the record that Nancy Green had retained professional services in October 1995 until the end of June 1996 to help in the preparation of her submissions to the Commission for its deliberation in its decision-making process.

The Attorney General argues the Act is silent as to the awarding of legal costs and the only possible reference to any power which may be analogous to that of granting legal costs is the reference to expenses in paragraph 53(2)(c). The Attorney General cites Canada (Attorney General) v. Lambie (1996), 124 F.T.R. 303 (F.C.T.D.), where my colleague Nadon J. said at page 315 that the Act does not confer jurisdiction to award costs although Parliament could easily have included such a power.

I agree with my colleague that if Parliament had intended the Tribunal to award legal costs, it would have said so. Reference is had to paragraph 53(2)(d) which refers to compensation to the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation. There is no mention of legal costs, an indication Parliament did not intend the Tribunal have the power to order the payment of legal costs.

I accept the submission of the Attorney General. The Tribunal's award is struck.

(emphasis added)

[21]            However, in Canada (Attorney General) v. Thwaites, [1994] 3 F.C. 38 (F.C.T.D.), a case that predates the other two decisions, this Court came to the opposite conclusion. Gibson J. was confronted with the issue of whether the Tribunal erred in law in awarding reasonable costs for counsel and costs for actuarial services retained by the complainant in that case. He examined paragraph 53(2)(c) of the Act and found no reason to restrict the ordinary meaning of the expression "any expenses incurred". At para. 56 of his reasons, he stated the following:

I refer to the authority under paragraph 53(2)(c) of the Canadian Human Rights Act quoted above to award compensation for expenses incurred by a victim, in this case Thwaites. I find no reason to restrict the ordinary meaning of the expression "expenses incurred". Costs of counsel and actuarial services incurred by Thwaites are, in the ordinary usage of the english language, expenses incurred by Thwaites. The fact that lawyers and judges attach a particular significance to the term "costs" or the expression "costs of counsel" provides no basis of support for the argument that "expenses incurred" does not include those costs unless they are specifically identified in the legislation. On the basis of the principle that the words of legislation should be given their ordinary meaning unless the context otherwise requires, and finding nothing in the relevant context that here otherwise requires, I conclude that the Tribunal did not err in law in awarding Thwaites reasonable costs of his counsel including the cost of actuarial services. (emphasis added)

[22]        In my view, Nadon J.'s finding on jurisdiction in Lambie, is distinguishable from the case at bar. First, he found the word "expense" in paragraph 53(2)(d) of the Act not to be broad enough to cover time spent in preparation "except in exceptional circumstances". I interpret this to mean that the Tribunal has jurisdiction to award legal costs but in very exceptional cases. Indeed, he emphasized that in the case before him, there was no evidence that the leave and time compensated for in the Tribunal's order were exceptional, and nothing indicated that the respondent was required to make any preparations beyond what would ordinarily be expected in such a case. Furthermore, the respondent's case was prepared entirely by Commission counsel. In Green, Lemieux J. does not make any finding regarding whether the complainant spent considerable or "exceptional" time and money in bringing his complaint.

[23]            I am satisfied that the reasoning in Thwaites is applicable to the situation here. The case law of the Tribunal abounds with awards of legal costs to the successful complainant, and the Tribunal has taken the position that paragraph 53(2)(c) contemplates such an award. For example, in Kkwazi v. Correctional Service Canada, [2001] C.H.R.D. No. 29. (QL) (Cdn. Human Rights Trib.), the Tribunal concluded that "there are compelling policy considerations relating to access to the human rights adjudication process which favour the adoption of the Thwaites approach". It went on to state that "Interpreting the term 'expenses' in the narrow and restricted way that Lemieux J. did in Green, so as to deny victims of discriminatory practices the right to recover their reasonable legal expenses associated with the pursuit of their complaints would [...] be contrary to the public policy underlying the Canadian Human Rights Act".

[24]            I agree with the tribunal and with Gibson J. in Thwaites that the language of paragraph 53(2)(c) is broad enough to encompass the power to make an award of legal costs.^[3] I find support for this position in subsection 50(1) of the Act which states that a complainant, as a party before the Tribunal, must be given "full and ample opportunity, in person or through counsel to appear at the inquiry, present evidence and make representations". Thus, Parliament clearly intended that a complainant be given the opportunity to retain the services of counsel in order to obtain some direction and advice.

[25]            I agree with Gibson J. in Thwaites, that there is no reason to restrict the ordinary meaning of the expression "any expenses incurred by the victim as a result of the discriminatory practice" such as to exclude "expenses of litigation, prosecution, or other legal transaction". The fact that the words "legal costs" or "costs of counsel" are not expressly mentioned in either paragraphs 53(2)(c) or (d) does not support the argument that "expenses incurred as a result of the discriminatory practice" excludes "legal expenses" incurred by a complainant in bringing a complaint for discrimination. In a case such as this, where a complainant consults a lawyer regarding the well-foundedness of his complaint, an expense of that nature is entirely justifiable.

[26]            In my view therefore, costs of counsel or any legal costs incurred in the course of filing a complaint for discrimination constitute "expenses incurred by the victim as a result of the discriminatory practice" as referred to in the legislation and the tribunal has accordingly acted within its jurisdiction in awarding legal expenses to the respondent.

[27]            Unlike the question of the Tribunal's jurisdiction to make an award of legal expenses, there is no legislative provision in the Act that bestows jurisdiction on the Tribunal to extract a coerced apology from individuals or institutions. However, the Tribunal has taken the position that it has jurisdiction to make such an order in cases where the employer's behaviour has been marked by insensitivity, bad faith or malice^[4]; a position which has not been challenged before this Court.

[28]            The question of whether an administrative tribunal can coerce an expression of opinion was first addressed by the Supreme Court in [1984] 1 S.C.R. 268">National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 268. In that case, the Canada Industrial Relations Board ordered a bank President and Chief Executive Officer to sign and send a letter, which would be drafted by the Board, to all the employees explaining that the bank had violated the Canada Labour Code and that it approved of the Code and its objectives. The letter would not mention that the bank President was coerced in writing the letter pursuant to the Board's order. Chouinard J., writing for the Court, concluded at pages 294-295 that the Board's order was unreasonable and vexatious and was intended not to be compensatory but punitive, exemplary and humiliating. It thus constituted an excess of its powers. Beetz J., in a minority opinion, stated at pages 295-296 that such a remedy was clearly punitive in nature. He concluded that bearing in mind the guarantees of freedom of thought, belief, opinion and expression contained in section 2(b) of the Charter, the Code could not be interpreted as conferring on the Board the power to impose such an extreme measure.

[29]            Further, in R. v. Northwest Territories Power Corp., [1990] N.W.T.R. 125 (N.W.T. S.Ct.), the Northwest Territories Supreme Court overturned a sentence imposed against an electricial utility which required the utility to publish a public apology in a form dictated by the sentencing judge. In that case, de Weerdt J. provided a very useful explanation of the purposes of an apology as follows at pages 131-132:

An apology freely given out of genuine remorse generally indicates progress by the offender on the path towards reform of his or her behaviour and attitudes. It suggests a likelihood that the offender, seeing the error of his or her ways, will not reoffend. It can be regarded as an act of expiation or atonement, like compensation voluntarily paid by the offender to a victim or the willing restoration of property taken or destroyed. As such, it suggests a diminution, at least, in the need for a sentence which will deter the offender individually. It reflects a positive desire on the part of the offender for acceptance by society (and of society's laws), and for a reconciliation between the offender and any victims of the offence. As an initiative by the offender towards restoring the status quo ante it can do much to bring back "peace in the valley" and allow everyone to get on with the business of living more or less as before.

Extracted on demand, however, a grudging so-called apology is plainly no more than a reluctant concession to an opponent possessing, for the time being, an overwhelming advantage of some sort. It is all too likely to be regarded primarily as a form of unjust humiliation and not necessarily as a vindication of what is right. In consequence, it has little of the value of the apology freely given out of genuine remorse. It is seen by the offender, and no doubt by others, as a form of punishment and not of contrition.

[30]            I cannot see how an apology under compulsion, such as the one the Director of CSIS is ordered to make in this case, can possibly serve to advance the primary focus of the Canadian Human Rights Act, which is the eradication of discriminatory practices. It lacks all the characteristics of a genuine apology and is surely worthless as such.

[31]            The record indicates that CSIS does not share the opinion of the Tribunal and the Commission that it violated the Act. While the Tribunal rejected the position put forward by CSIS at the inquiry and found in favour of the respondent, this does not mean that CSIS believes that this decision is necessarily correct or that CSIS discriminated against the respondent. There is nothing to show that the Director of CSIS will be entitled to disclose the coercion should he wish to explain the nature of the apology and the fact that he, on behalf of the organization, is compelled to provide the letter as part of a remedy ordered by the Tribunal.

[32]            I note that the Tribunal mentioned on several occasions in its decision that the conduct of CSIS towards the respondent and his disability was marked by insensitivity and bad faith.^[5] This finding has not been impugned. However, there is no indication that

what the Tribunal's order seeks to accomplish could not be fully achievable simply by making CSIS pay "special compensation" to the respondent pursuant to subsection 53(3) of the Act.

[33]            By attempting to coerce the Director of CSIS to write a letter of apology in a form approved by the Commission, the Tribunal is effectively forcing him to utter an opinion which is misleading and untrue. In my view, neither subsection 53(2), subsection 53(3) nor the Act as a whole can be interpreted in such a manner as to empower the Tribunal to make such orders, whatever form they might take. That the Tribunal must necessarily have the power to impose remedies similar to the ones listed in subsection 53(2) to rectify and remedy the effects of systemic discrimination does not mean that it is empowered to punish an employer by purporting to provide a "meaningful remedy" to victims of discrimination.

[34]            It should be borne in mind that the Tribunal is a creature of statute and not a superior court of inherent jurisdiction. Consequently, the authority to order that letters of apology be provided to a successful complainant must be expressly provided for in the Act or must be derived by necessary implication (an "inherent power"). It would be rather astonishing indeed if such inherent jurisdiction, which may possibly be found to be lacking in this Court or a superior court, were to exist in other instances subject to the supervisory powers of a court, especially when these other instances, through statutory limitations, would not appear to be empowered to make such awards.

[35]            Having concluded that the Tribunal had no jurisdiction to order the Director of CSIS to issue a letter of apology to the respondent, I need not determine whether the Tribunal's order violates section 2(b) of the Charter.

[36]            Accordingly, this application for judicial review is allowed in part. It is hereby ordered that the fifth paragraph of the Tribunal's decision by which it ordered the Director of CSIS to provide the respondent with a letter of apology in a form approved by the Commission is invalid and must be struck. Success being divided, I make no order as to costs.

     JUDGE

OTTAWA, Ontario

March 24, 2003

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-9-02

STYLE OF CAUSE:                           THE ATTORNEY GENERAL OF CANADA v JOHN            STEVENSON AND THE CHRC

PLACE OF HEARING:                     Vancouver, BC

DATE OF HEARING:                       January 16, 2003

REASONS FOR Order :                   Rouleau, J.

DATED:                                                March 24, 2003

APPEARANCES:

Mr. Jan Brongers                                                                            FOR APPLICANT

Mr. Daniel Pagowski                                                                      FOR RESPONDENT CHRC

Mr. John Stevenson                                                                        FOR RESPONDENT ON HIS OWN BEHALF

SOLICITORS OF RECORD:

Dept. of Justice

Ottawa, ON                                                                                    FOR APPLICANT

Canadian Human Rights Commission    FOR RESPONDENT

Ottawa, ON