Rogers v. Canada (Correctional Service), docket T-195-97

Date: 20010126

Docket: T-195-97

IN THE MATTER OF an Application pursuant to subsection 77(1) of the Official Languages Act, R.S.C. 1985, c. 31 (4^th Supplement)

AND IN THE MATTER OF an Investigation by the Commissioner of Official Lanaguages of a complaint made by the Applicant pursuant to section 91 of the Official Languages Act, R.S.C. 1985, c. 31 (4^th Supplement)

B E T W E E N:

     DON B. ROGERS

     Applicant

     - and -

     HER MAJESTY THE QUEEN

     (Correctional Service Canada)

     Respondent

     - and -

     COMMISSIONER OF OFFICIAL LANGUAGES

     Mis-en-Cause

     REASONS FOR ORDER

HENEGHAN J.

INTRODUCTION

[1]      Mr. Don B. Rogers (the "Applicant") filed a complaint with the Office of the Commissioner of Official Languages on February 16, 1995, challenging the bilingual imperative designation of a job posting for an Administrative Assistant to the Deputy Commissioner at Correctional Services Canada ("CSC"), in Kingston. The complaint was filed pursuant to the Official Languages Act, R.S.C. 1985, c. 31 (4^th Supplement), as amended, (the "Act"), section 91 which provides :

91. Nothing in Part IV or V authorizes the application of official language requirements to a particular staffing action unless those requirements are objectively required to perform the functions for which the staffing action is undertaken.

91. Les parties IV et V n'ont pour effet d'autoriser la prise en compte des exigences relatives aux langues officielles, lors d'une dotation en personnel, que si elle s'impose objectivement pour l'exercice des fonctions en cause.

[2]      Following an investigation, the Commissioner of Official Languages filed a report on December 10, 1996, in which he upheld the complaint filed by Mr. Rogers. Mr. Rogers now applies for a remedy pursuant to section 77(1) of the Act.

FACTS

[3]      Mr. Rogers joined the Federal Public Service in October 1971. In 1984, he was appointed Head of the Audio Visual Section at the Royal Military College ("RMC") in Kingston, Ontario. He was employed with the Department of National Defence ("DND").

[4]      On June 22, 1984, Mr. Rogers was advised that his position at RMC was abolished. On or about October 1, 1984, he was declared surplus and became subject to the Treasury Board Work Force Adjustment Directive ("WFAD"). Among other things, the WFAD conferred on Mr. Rogers a priority for appointment to an available same level position and at least one reasonable job offer. Ms. Janet Bryant, an employee of DND, was assigned to assist in the identification of another Public Service position for the Applicant.

[5]      As a surplus employee, he was eligible for up to two years retraining to acquire the necessary qualifications for available positions, including language training for non-imperative bilingual positions. He was not eligible for appointment to a position designated bilingual imperative because such positions required that a candidate, including a surplus priority employee, have the ability to meet the language requirements in advance.

[6]      At the same time, the WFAD imposed a requirement upon affected employees to relocate, if a job offer required relocation. The WFAD also provided that the employer or departments had a responsibility to see that surplus employees were given every reasonable opportunity to continue their careers in the Public Service and where available, in their usual place of residence.

[7]      Mr. Rogers was interviewed by the Public Service Commission ("PSC") in November 1994. It is the uncontradicted evidence of Mr. Rogers that following the interview it was determined that his experience and skills were suitable for positions in the AS job category, as the AS-02 level.¹

[8]      At the time he was declared surplus, Mr. Rogers had a French language profile of E (reading) B (writing) B (oral). By January 1995, he had improved his language profile to ECB.

[9]      By letter dated October 26, 1994, the Civilian Personnel Office of the Canadian Forces Base in Kingston ("CFB Kingston") advised CSC of the Applicant's surplus status and forwarded his resume and Performance Evaluation.

[10]      In January 1995, Mr. Rogers became aware of an employment opportunity with CSC in Kingston. The position, at the AS-02 level, was for Administrative Assistant to the Deputy Commissioner (Ontario) ("AS-02"). Mr. Rogers became aware of this opportunity by means of a competition poster.

[11]      The competition poster identified the language requirements as "bilingual imperative CCC/CCC"². This language requirement differed from the work description for the position, which identified the staffing mode as "bilingual non-imperative"³.

[12]      According to his affidavit, Mr. Rogers advised Jeannette Talbot, an Officer of the PSC, of his interest in this position on January 24, 1995. At this time, he also advised that his language profile had been upgraded to ECB. In turn, he was advised by Ms. Talbot that the PSC had determined that no priority Public Servant satisfied the CCC bilingual imperative language requirements for referral to the AS-02 position.

[13]      On January 27, 1995, Mr. Rogers was advised by another Officer at the PSC, Ghislaine Gagnon, that his application for the position had not proceeded because he did not meet the CCC bilingual imperative requirement established for the AS-02 position.

[14]      Mr. Rogers did not give up. He wrote directly to Andrée LeBlancq, Senior Staffing Officer for the Ontario Region of CSC, on February 7, 1995. In his letter, he expressed interest in the AS-02 position and requested a copy of the work description for that position. He also sent copies of his most recent Performance Evaluation and of his resume.

[15]      Ms. LeBlancq replied to Mr. Rogers by letter dated February 13, 1995. She advised that his application for the position would not be considered as CSC had decided to staff the position on a bilingual imperative basis.

[16]      Following receipt of that letter, Mr. Rogers filed a complaint with the Office of the Commissioner of Official Languages, pursuant to section 91 of the Act. In his complaint, Mr. Rogers challenged the language profile and the staffing mode attached to the AS-02 position by CFC and requested that CSC suspend staffing the position pending the disposition of his complaint.

[17]      Subsequently, Mr. Rogers received a copy of an electronic mail message dated February 20, 1995 which was sent by Ms. LeBlancq to the Deputy Commissioner (Ontario) of CSC. In this message, Ms. LeBlancq advised the Deputy Commissioner about Mr. Rogers' complaint and of his request that staffing of the position in question be suspended pending disposition of his complaint.

[18]      On February 21, 1995, Ms. LeBlancq informed Mr. Rogers that CSC was going to proceed with the staffing of the AS-02 position. On May 23, 1995, Mr. Rogers wrote to the PSC, advising that he had filed a complaint with the Commissioner of Official Languages against CSC and that CSC was proceeding with the staffing of the AS-02 position.

[19]      On September 5, 1995, Mr. Rogers was informed that his surplus period was being extended one more time to January 14, 1996. This was the third extension of the surplus period; two previous extensions had been granted because he had not received a reasonable job offer as provided for in the WFAD. By September 1995, the guarantee of a reasonable job offer during the surplus period had been withdrawn by the Federal Government following the 1995 Federal budget. The extension of surplus status granted to Mr. Rogers in September 1995 was the last one available to him.

[20]      Also as a result of the 1995 budget, the Government had introduced an Early Retirement Incentive ("ERI") plan. Mr. Rogers was advised that if he had not obtained a position by January 14, 1996, he would be placed on unpaid surplus status as of that date. He was also advised that the deadline for electing to receive the ERI was November 3, 1995. The advice about the change in his status and the availability of the ERI was communicated to Mr. Rogers by the Commandant of RMC.

[21]      Mr. Rogers decided to accept the ERI since he wanted to remain in the Public Service, preferably in the Kingston area. He was reluctant to take the package. As long as he was on surplus status he was entitled to receive a reasonable job offer. In his affidavit, he stated that the ERI was not attractive to him since it represented a significant reduction in income.⁴ He was concerned about the effect on his income, having regard to his personal situation as the father of two children approaching the commencement of post-secondary education with the resulting demands on his financial resources.

[22]      On November 3, 1995, as the deadline for acceptance approached, Mr. Rogers delivered his acceptance of the ERI offer to CFB Kingston Civilian Personnel Office. However, the closing date of his surplus status was moved from January 14, 1996 to March 4, 1996 because Mr. Rogers had not received the letter advising him of the final extension of his surplus period until early September 1995. March 4, 1996 became his retirement date. Mr. Rogers chose to remain at work in the Public Service as long as possible in order to augment his opportunity of obtaining a suitable position.

[23]      Although Mr. Rogers explored certain employment opportunities with the Public Service, including a position as a CAMS Coordinator with CSC, a position as a CS-01 in a penitentiary, and a CS-01 position, a computing instructor position with the Canadian Forces School of Communications and Electronics in Kingston, no job offer was made to Mr. Rogers in respect of any of these positions or indeed any other position.

[24]      However, according to the Affidavit of Andrée LeBlancq, she considered the possibility of referring the Applicant for the Kingston position as early as November 1994. She sent a note to Jean-Guy Leger, Regional Administrator of the Personnel Division for CSC (Ontario Region) in which she reviewed the Applicant's qualifications and security clearance as follows:

This gentleman is a bilingual GT-General Technician. He has an impressive administration background and an M.A. in political science and mass communications. He's DND cleared to SECRET and apparently an excellent speaker *Sounds too good to be true?5

[25]      On March 19, 1996, Ms. LeBlancq sent an inquiry to Ms. Gagnon about the Applicant's employment status. In her reply, Ms. Gagnon advised that the Applicant had resigned on March 4, 1996. However, she made the following comments about his suitability for the Kingston position:

Had the AS-02 position been CBC non-imperative, I would have referred Mr. Rogers. At the time, he was retested to determine if he met the C level for Oral Interaction. He was not given further consideration because he did not meet the language requirements.6

[26]      While Mr. Rogers was working out his final period of employment as a surplus employee after the last extension was granted in September 1995, the Office of the Commissioner of Official Languages was conducting its investigation.

[27]      The Commissioner conducted an investigation which consisted of interviews, examination of relevant documentation and review of legislation and government guidelines. Interviews were conducted with the Applicant and the Deputy Commissioner (Ontario Region). As well, both the former and acting Administrative Assistants to the Deputy Commissioner, the Senior Staffing Officer and the former Regional Chief of Official Languages were interviewed.

[28]      A preliminary report was released by that Office and received by Mr. Rogers on March 7, 1996. According to the preliminary report, the Commissioner of Official Languages was prepared to uphold Mr. Rogers' complaint. The preliminary report was circulated to the parties and their comments were invited.

[29]      Following its investigation and circulation of its preliminary report, the Commissioner of Official Languages delivered the final report on December 10, 1996 which upheld the complaint. The report concluded that the position of Administrative Assistant to the Deputy Commissioner for Ontario should have followed a non-imperative staffing mode and that the linguistic profile of the position should have been CBC.

[30]      The Commissioner found, among other things, that management at CSC had not used the objective criteria established by the Treasury Board for the staffing mode and did not examine the real linguistic needs of the position. Further, there is no written record of rationale for staffing the position as Bilingual Imperative.

[31]      Second, the report states that the competition for the position was won in March 1995 by a candidate with a CCC profile. The successful candidate was on maternity leave until August 1995 and the position had been temporarily staffed since December 1994 by a unilingual English employee. The report points out that, if the bilingual capacity was pressing enough to warrant imperative staffing, the decision to train a unilingual employee for the initial period is questionable.

[32]      Third, the report determined that the appropriate linguistic profile for the position is CBC. At page 23, the report states:

We conclude that for competition number # 94-CSC-ONT-RHQ-CCID-81, for the position of Administrative Assistant to the Deputy Commissioner for Ontario the staffing mode should have been Non-Imperative, and that the linguistic profile of the position should have been CBC.7

[33]      After reviewing the complaint in its entirety, the Commissioner of Official Languages recommended that:

1)      CSC change the staffing mode to non-imperative;

2)      CSC change the linguistic profile of the position to CBC based on the job description and the real duties the incumbent performs;

3)      CSC review the staffing action and take appropriate measures to correct the situation.8

[34]      CSC implemented the first two recommendations of the Commissioner of Official Languages. However, since the position had been filled, no steps were taken in relation to the third recommendation.

[35]      After resigning the Applicant learned that he would have been recommended for the Kingston position if it had not been designated bilingual imperative.

[36]      Following his resignation from the Public Service the Applicant sought other employment. He applied for a position at Queen's University in Kingston in 1998 and for a position at the St. Lawrence College of Applied Arts and Technology in 1999. He also attempted to become self-employed by incorporating a company for verification of resume accuracy, attempting to publish a guide to property assessment appeals, and researching potential public speaking opportunities. Despite his efforts, he was unsuccessful in obtaining paid employment or in establishing remunerative self-employment.

ISSUES

[37]      Two issues arise in this Application: whether the Applicant should receive a remedy pursuant to the Act, and, if so, what that remedy should be.

[38]      The Applicant brought this application pursuant to section 77(1) of the Act which provides as follows:

77(1) Any person who has made a complaint to the Commissioner in respect of a right or duty under section 4 to 7, section 10 to 13 or Part IV or V, or in respect of section 91, may apply to the Court for a remedy under this Part.

77. (1) Quiconque a saisi le commissaire d'une plainte visant une obligation ou un droit prévus aux articles 4 à 7et 10 à 13 ou aux parties IV ou V, ou fondée sur l'article 91 peut former un recours devant le tribunal sous le régime de la présente partie.

[39]      He relies on the remedial power given to the courts under section 77(4):

77(4) Where, in proceedings under subsection (1), the Court concludes that a federal institution has failed to comply with this Act, the Court may grant such remedy as it considers appropriate and just in the circumstances.

77(4) Le tribunal peut, s'il estime qu'une institution fédérale ne s'est pas conformée à la présente loi, accorder la réparation qu'il estime convenable et just eu égard aux circonstnaces.

ARGUMENTS

Applicant's Arguments

[40]      The Applicant claims that he is entitled to a remedy, following the finding by the Commissioner that his rights under the Act had been breached. He argues that he is entitled to a monetary remedy, having regard to the likelihood that he would have been appointed to the position in Kingston. He says that his chance of being appointed to the Kingston position was between twenty-five and fifty percent, and accordingly, he should receive an award to reflect the loss of income and related benefits associated with the Kingston position. The Applicant also submits that he reasonably would have been employed for another eight years in the position in Kingston.

[41]      The Applicant submits that he would have been referred to the position if it had not been improperly designated as bilingual imperative. In support of this position he relies on his personal language qualifications. In January 1995, he had the rating of E, C, B in the French language and argues that he would have been capable of discharging the responsibilities associated with the Kingston employment opportunity if it had not been designated as bilingual imperative. Furthermore, he relies upon the e-mail communication from Ghislaine Gagnon to Andrée LeBlancq dated March 19, 1996 advising that had the AS-02 position been CBC non-imperative, the PSC would have referred him for that position.

[42]      Although the Applicant initially sought a reference for the assessment of damages, upon the hearing his Counsel urged the Court to take a "principled approach" and assess damages on the basis of the limited evidence submitted.

[43]      The Applicant claims that he would have continued to earn approximately $40,000 per year, together with benefits. He participated in the Public Health Care Plan, Level II, at a monthly cost of $3.40 for family coverage. Following the termination of his employment and acceptance of the ERI, the Applicant now receives an annual pension of $19,526 and pays for continued participation in the Public Service Health Care Plan in the amount of $34.21 per month.

[44]      The Applicant frames his claim for damages on the loss of opportunity to be appointed to the Kingston position, and relies on the decision in Chaplin v. Hicks [1911] L.J.K.B., vol. 80, 1292 (C.A.) in support of his claim for the award of damages for the loss of opportunity to be appointed to the position. The Applicant relies upon that decision as authority for the submission that his entitlement to damages is not removed simply because his chance of success depends upon the decision of a third party, who may not have decided in his favour.

Respondent's Arguments

[45]      The Respondent submits that in the first place, the Applicant is entitled to no remedy. The Respondent submits that the report of the Commissioner is not binding and that it is open for the Court to treat this application as a new proceeding.

[46]      Second, the Respondent submits that the Applicant's employment relationship and employment opportunities with the Respondent are governed by the Public Service Employment Act, R.S. 1985, c. P-33. The loss of his employment and opportunities for re-employment with the Federal Government are subject to that legislation and related agreements, including the WFAD and initiatives for early retirement. In short, the Respondent says, that the Applicant received what he was entitled to receive.

[47]      Next, the Respondent alternatively submits that if there has been a breach of the Applicant's language rights, he is not entitled to a remedy because he has failed to show that he has suffered a loss. In other words, the Respondent says that the Applicant has failed to establish that he would have obtained the Kingston position. The Respondent says that the law is clear that a person can be compensated only for the loss of an opportunity to be appointed to a position, not for the loss to compete for a position. The Respondent relies on Chaplin v. Hicks, supra, in support of this argument.

[48]      According to the Respondent, that case also supports the proposition that a person who successfully brings a claim for compensation for the loss of a chance is not entitled to the full value of the loss incurred. Rather, the claimant is entitled to the proportion of the loss equivalent to the probability of the gain being realized, except for the wrongful act in issue.

[49]      The Respondent argues that regardless of the linguistic profile for the Kingston position, the Applicant was competing with a large field of potential applicants, some of whom enjoyed higher priority in the matter of being offered alternate employment after the elimination of their previous positions. The Respondent relies on the difference between those employees who enjoy statutory priority pursuant to section 29(3) of the Public Service Employment Act, supra,⁹ and those who enjoy regulatory priority. Mr. Rogers fell in the latter classification pursuant to section 39(2) of the Public Service Employment Regulations, 2000.¹⁰

[50]      In the case of a statutory priority, an employee can be appointed to a position without participating in competition, if he or she is otherwise qualified for the position. A person with regulatory priority is entitled to a reasonable job offer if otherwise qualified, but must still follow the competition process. The guarantee of a reasonable job offer is mirrored in the WFAD, section 6.1.1 as follows:

6.1.1 Employees declared surplus as a result of a privatization are guaranteed an offer of appointment on an indeterminate basis to another position in the Public Service within their headquarters area, either at their current level or with salary protection, where necessary.11

[51]      According to the Affidavit of Lyle Borden, filed as part of the Respondent's Application Record, there were ninety-two Public Service employees who were considered to be active priorities for AS-02 positions as of January 1, 1995. Thirteen of these employees were considered to be statutory priorities and the remaining seventy-nine were considered to be regulatory priorities. The Respondent argues that the Applicant was but one of these ninety-two priority employees and that there is no evidence to support the Applicant's claim that he would have been the successful candidate, if the linguistic profile had been different. The Respondent relies heavily on the lack of cross-examination of Mr. Borden

[52]      Finally, the Respondent argues that notwithstanding any loss of opportunity to be appointed to the Kingston position, the Applicant had a duty to mitigate his losses and failed to do so. The Respondent says that the Applicant improperly limited his scope for re-employment to the Kingston area and should have explored the possibilities of obtaining an alternate position in the Public Service in other locations.

[53]      The Respondent denies that the Applicant had a fifty per cent change of having been appointed to the Kingston position since there were a total of ninety-two persons who had active priorities for that position. The Respondent says that, in these circumstances, the Applicant had a limited chance of appointment.

[54]      The Respondent estimates that the Applicant's chance of appointment to the position was 1.26% and says that the damages awarded, if any, should be reduced to a factor of five percent, having regard to the upper limits established by the Supreme Court of Canada in [1978] 2 S.C.R. 229">Andrews v. Grand and Toy Alberta Limited, [1978] 2 S.C.R. 229, for non-pecuniary general damages.

ANALYSIS

[55]      As noted above, the first question for decision is whether the report of the Commissioner will be accepted.

[56]      The role of the Commissioner is to investigate a complaint which is brought under the Act, and to make a report and recommendation concerning that complaint. This role is defined by section 56 of the Act.

56. (1) It is the duty of the Commissioner to take all actions and measures within the authority of the Commissioner with a view to ensuring recognition of the status of each of the official languages and compliance with the spirit and intent of this Act in the administration of the affairs of federal institutions, including any of their activities relating to the advancement of English and French in Canadian society. (2) It is the duty of the Commissioner, for the purpose set out in subsection (1), to conduct and carry out investigations either on his own initiative or pursuant to any complaint made to the Commissioner and to report and make recommendations with respect thereto as provided in this Act.

56. (1) Il incombe au commissaire de prendre, dans le cadre de sa compétence, toutes les mesures visant à assurer la reconnaissance du statut de chacune des langues officielles et à faire respecter l'esprit de la présente loi et l'intention du législateur en ce qui touche l'administration des affaires des institutions fédérales, et notamment la promotion du français et de l'anglais dans la société canadienne. (2) Pour s'acquitter de cette mission, le commissaire procède à des enquêtes, soit de sa propre initiative, soit à la suite des plaintes qu'il reçoit, et présente ses rapports et recommandations conformément à la présente loi.

[57]      The Commissioner, who is appointed under the Act, has the mandate to investigate the allegations that the Applicant's language rights had been breached.

[58]      The Commissioner concluded that the Applicant's language rights had been breached. He found that the bilingual imperative linguistic profile for the position in Kingston was unnecessary, having regard to the nature of the position and its required duties. He also took particular note of the fact that the position in question had been staffed by a unilingual anglophone for some eight months. He questioned the rationale for that appointment having regard to the language requirements stated in the competition notice for the position.

[59]      Although the Act does not state that the Commissioner's report is binding on a court, it is surely evidence which is to be taken into consideration upon an application for a remedy under the Act. The Commissioner of Official Languages is specifically authorized to monitor the protection of language rights in accordance with the Act. The status of this Act as "quasi-constitutional legislation" was recognized by the Federal Court of Appeal in Canada (Attorney General) v. Viola et al, [1991] 1 C.F. 373 at 386 as follows:

The 1998 Official Languages Act is not an ordinary statute. It reflects both the Constitution of the country and the social and political compromise out of which it arose. To the extent that it is the exact reflection of the recognition of the official languages contained in ss.16(1) and (3) of the Canadian Charter of Rights and Freedoms, it follows the rules of interpretation of that Charter as they have been defined by the Supreme Court of Canada. To the extent also that it is an extension of the rights and guarantees recognized in the Charter, and by virtue of its preamble, its purpose as defined in s.2 and its taking precedence over other statutes in accordance with s.82(1), it belongs to that privileged category of quasi-constitutional legislation which reflects "certain basic goals of our society" and must be so interpreted "as to advance the broad policy considerations underlying it".

[60]      In my opinion, the nature of the Act as quasi-constitutional legislation means that a report of the Commissioner, after the conduct of an investigation, can be accepted as evidence that a breach of the Act has occurred. The findings and conclusion of the Commission were not seriously challenged by the Respondent. Accordingly, I confirm the findings of the Commission that the staffing mode for the position in question should have been bilingual non-imperative, with a linguistic profile of CBC. Further, I find that the improper designation for the position breached the Applicant's language rights.

[61]      This moves attention to the second issue, that is the appropriate remedy. The answer to that question depends upon the characterization of the Applicant's loss that resulted from the actions of the CSC in classifying the Kingston position as bilingual imperative. Did he lose the opportunity to compete for a position or did he lose the opportunity to be appointed?

[62]      As noted above, the Respondent argues that the Applicant is entitled to no remedy because as a public servant, he has already received the benefits to which he is entitled, pursuant to the Public Service Employment Act, supra and related government guidelines and initiatives. The Applicant had been declared surplus and was paid whatever monies were due to him. He received a pension.

[63]      This argument is totally without merit. First, the Applicant's complaint did not arise from the termination of his employment in the Public Service. He does not raise that matter in this proceeding except as part of the background information. Furthermore, as an employee of the Federal Crown the Applicant is entitled to protection of his language rights as provided in the Act.

[64]      The Respondent also fails in the next argument that the Applicant has suffered no loss as a result of the improper designation of the position as bilingual imperative. According to the evidence of Andrée LeBlancq filed on this Application, the Applicant would have been referred to the Kingston position if it had been CBC non-imperative. If he had been referred, the Applicant would have been allowed to undertake further training to enhance his language skills. On the basis of his prior success in studying the French language, as shown by the improvement in his writing skills by January 1995, it is probable that the Applicant could have obtained a rating of CBC within a reasonable time.

[65]      Furthermore, the opportunity to be appointed to the position was foreclosed by the actions of CSC in filling that position during the investigation of the Applicant's complaint, despite his specific written request that the staffing be deferred pending the outcome of the investigation.

[66]      Although the Respondent devoted much energy to the Applicant's status as a regulatory priority employee whose entitlement to priority status was conditional upon receipt of at least one reasonable offer of employment, the fact remains that no reasonable job offer was extended to him.

[67]      On the basis of the material filed by both Mr. Rogers and the Respondent, I am satisfied that no alternate employment position was extended by PSC. Indeed a job referral for a CSC position, the PG-O2CAMS Coordinator position, was rescinded by PCS on the basis the referral of Mr. Rogers might prejudice the re-employment prospect of a CSC employee who was about to be declared surplus. In any event, upon the hearing of this application, counsel for the Respondent admitted on the record that no firm offer of employment was extended to Mr. Rogers by the PSC.

[68]      In my opinion, the distinction between a statutory priority employee and a regulatory employee is now irrelevant.

[69]      As for the Respondent's submissions that the Applicant failed to mitigate his financial losses by not actively pursuing other employment in the Public Service, I note that notwithstanding the obligation created under WFAD for the presentation of an alternative employment position, no such offer was made to the Applicant. Counsel for the Respondent acknowledged this fact on the record upon the hearing of this Application.

[70]      The Applicant argues that he lost the opportunity to be appointed to that position, and the Respondent argues that he merely lost the chance to compete for it.

[71]      While Mr. Rogers is not entitled to compensation of a mere loss of opportunity to compete for appointment to a position, loss of opportunity is not an accurate identification of the loss suffered in this case. In Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401(C.A.) the Federal Court of Appeal found that there does not need to be a probable result that the wrong is connected to the loss, only a serious possibility that it is connected.

[72]      According to the Federal Court of Appeal in Morgan, supra, uncertainty as to the degree of the connection goes to the assessment of damages, and not to whether there is a connection between the wrong and the loss, provided that the connection meets the threshold of "serious possibility". As the Court of Appeal wrote at page 412:

I have great difficulty with the proposition adopted by the Review Tribunal and accepted by my colleague that it was sufficient to look at the probable result of the recruiting process to be able to draw the conclusion that the loss was that of a job rather than a mere opportunity. We are not dealing with the establishment of a past fact which in a civil court need only be proved on a balance of probabilities. Nor are we concerned with the relation between a particular result and its alleged cause. It seems to me that the proof of the existence of a real loss and its connection with the discriminatory act should not be confused with that of its extent. To establish that real damage was actually suffered creating a right to compensation, it was not required to prove that, without the discriminatory practice, the position would certainly have been obtained. Indeed, to establish actual damage, one does not require a probability. In my view, a mere possibility, provided it was a serious one, is sufficient to prove its reality. But, to establish the extent of that damage and evaluate the monetary compensation to which it could give rise, I do not see how it would be possible to simply disregard evidence that the job could have been denied in any event. The presence of such uncertainty would prevent an assessment of the damages to the same amount as if no such uncertainty existed. The amount would have had to be reduced to the extent of such uncertainty. [emphasis in original]

[73]      Accordingly, having already found that there was a serious possibility that Mr. Rogers would have been appointed to the position, I am of the opinion that such a loss is not a "loss of opportunity", and as such, demands compensation .

[74]      Here the Applicant is seeking a remedy pursuant to the Act which is quasi-constitutional legislation. In my opinion, the nature of the legislation grants flexibility in the matter of finding an appropriate remedy for a breach of the rights recognised by the Act.

[75]      In Lavigne v. Canada (Human Resources Development), [1997] 1 F.C. 305, aff'd [1998] F.C.J. No. 686, Justice Pinard considered the scope of the remedial powers conferred by the Act. He said:

To accomplish the objective, and to ensure that the Act is indeed an effective instrument for the protection of the language rights of Canadians, damages must be included among the realm of remedies available to the Court under subsection 77(4). The ability of the Court to award damages is, in my view, essential to the enforcement of guaranteed quasi-constitutional rights.

...

Furthermore, the choice of the appropriate remedy under subsection 77(4) must fall entirely within the discretionary power of the Court.

[76]      A broad view should be taken about the nature of remedy which can be granted under the Act. This approach, however, does not authorize a court to award a monetary remedy without evidence pertaining to the actual loss and independent of the principles of mitigation. In Whitehead v. Servodyne Canada Ltd. (1987), 8 C.H.R.R.D./3874, the Ontario Board of Inquiry found that the principles of mitigation apply to the calculation of "statutory compensation" and deducted from its award the salary and benefit monies that the complainant had earned from alternate employment, after the loss of her job.

[77]      However, there is insufficient evidence in the present case to allow a meaningful assessment of damages. The "principled approach" argued by the Applicant does not replace evidence. Accordingly, the assessment of damages will be referred to a reference to be conducted pursuant to the Federal Court Rules, 1998. Upon the hearing of the reference, if it proceeds, the evidence should include the salary which the Applicant may have earned in the Kingston position.

[78]      The Applicant shall have his costs on this application and on the reference.

[79]      The application is allowed and damages shall be assessed by way of reference pursuant to the Federal Court Rules, 1998.

     "E. Heneghan"

     J.F.C.C.

January 26, 2001

OTTAWA, Ontario

__________________

¹Applicant's Record, page 6.

²Applicant's Record, page 85.

³Applicant's Record, page 86.

⁴Applicant's Record, page 9.

⁵Respondent's Record, page 38.

⁶Respondent's Record, page 73.

⁷Applicant's Record, page 23.

⁸Ibid.

⁹29(3) A person laid off pursuant to subsection (1) is entitled, during such period and in such order as the Commission may determine, to be appointed, without competition and, subject to sections 30 and 39, in priority to all other persons, to a position in the Public Service for which, in the opinion of the Commission, the person is qualified.      29(3) Sous réserve des articles 30 et 39, la personne mise en disponibilité a le droit d'être nommée sans concours et en priorité absolue, dans le délai et selon l'ordre que la Commission fixe à son appréciation, à un autre poste de la fonction publique pourlequel elle la juge qualifiée.

¹⁰39(2) The entitlement under subsection (1) is for a period of three years beginning on the day of the appointment or deployment to the lower level.      39(2) (2) Le paragraphe (1) s'applique pendant une période de trois ans à compter de la date de la nomination ou de la mutation.

¹¹Applicant's Record, page 69.