Canada (Attorney General) v. James Russell Lambie, docket T-2250-95

     T-2250-95

B E T W E E N:

     ATTORNEY GENERAL OF CANADA,

     Applicant,

- and -

     JAMES RUSSELL LAMBIE and

     CANADIAN HUMAN RIGHTS COMMISSION,

     Respondents.

     REASONS FOR ORDER

NADON J.:

     The Applicant, the Attorney General of Canada, seeks to set aside a decision rendered on September 28, 1995 [Lambie v. Canada (Canadian Armed Forces) [1995] C.H.R.D. No. 13 (Review Tribunal) [hereinafter C.H.R.R.T. Decision]] by a Canadian Human Rights Review Tribunal (the "Review Tribunal") appointed pursuant to s. 55 of the Canadian Human Rights Act , R.S.C. 1985 c. H-6 [hereinafter the "CHRA"]. The Review Tribunal allowed the Respondents" appeal from a decision of a Canadian Human Rights Tribunal (the "First Tribunal") dated April 23, 1993 [Lambie v. Canada (Canadian Armed Forces), [1993] C.H.R.D. No. 8].

     These decisions arise from a complaint filed by the Respondent, James Russell Lambie, on December 12, 1988 to the Canadian Human Rights Commission in which the Respondent alleged that his employer, the Canadian Armed Forces (the "CAF") had discriminated against him by reason of his marital status when it refused to appoint him as Commander of Canadian Forces Base ("CFB") Greenwood in Nova Scotia.

The facts

     In May 1987 the Commander of CFB Greenwood, Colonel O"Donnell, was promoted to the rank of Brigadier General and assigned to replace General Hayter as General, Northern Region. As a result, it became necessary to find a replacement for Colonel O"Donnell as Commander of CFB Greenwood. A number of names were suggested as possible replacements to Colonel O"Donnell. The top three candidates were Colonel Faulkner, Colonel Kirkwood and the Respondent. At the relevant time, both Colonels Kirkwood and Faulkner worked as staff officers at National Defence Headquarters in Ottawa under Major General Morton. The Respondent, who held the rank of Lt. Colonel at the time, was on a French language training course in Winnipeg and was scheduled to return to Air Command as Senior Staff Officer, Management Consulting Services at the end of that course.

     In 1987, there were sixteen Canadian Forces Bases commanded by a colonel¹ under the jurisdiction of Air Command.² The bases were divided into six groups, each of which was headed by an Air Command Officer holding the rank of Brigadier General. Base Commanders reported to the Brigadier General who headed the group of which the Base formed a part. The Brigadier General of each group reported to the Commander of Air Command who, in 1987, was Lt. General Ashley. Lt. General Ashley in turn reported to the Chief of Defence Staff at National Defence Headquarters. CFB Greenwood was one of the bases which formed part of the Maritime Air Group.³ Brigadier General Curleigh was in charge of the Maritime Air Group from 1986 to 1989.

     The selection of the Base Commander for CFB Greenwood ultimately fell upon the shoulders of Lt. General Ashley as the Commander of Air Command. In the instance which concerns us, Lt. General Ashley appointed Colonel Kirkwood to replace Colonel O'Donnell. It is that decision which the Respondent, through his complaint, has attacked. The Respondent"s position is that he would have been appointed as Base Commander to CFB Greenwood with the accompanying promotion to the rank of colonel if those responsible for the appointment had not taken into consideration his marital status. At the relevant time, the Respondent was on the verge of a divorce and intended to marry, shortly thereafter, his then common law wife.

     The position taken by the Applicant throughout these proceedings has been that the CAF did not discriminate against the Respondent when they appointed Colonel Kirkwood. Rather, the Applicant submits that Colonel Kirkwood was appointed because he was a better qualified officer than the Respondent.

The decision of the First Tribunal and of the Review Tribunal

     By its decision of April 23, 1993 the First Tribunal dismissed the Respondent"s complaint against the CAF. The hearing of the evidence before the First Tribunal took place over a period of seven days between September 8, 1992 and January 21, 1993.

     The First Tribunal concluded that the Respondent"s marital status had not been a factor in the decision to appoint Colonel Kirkwood as Base Commander of CFB Greenwood. The First Tribunal was satisfied that Colonel Kirkwood had been appointed because he was considered by the CAF, and by Lt. General Ashley in particular, to be the better qualified candidate.

     The Respondent appealed the First Tribunal"s decision. The Review Tribunal allowed the Respondent to call an additional witness,⁴ Mrs. Jacqueline Robertson who, at the relevant time, was the secretary to Brigadier General Patrick. Brigadier General Patrick was the Chief of Staff Operations at Air Command Headquarters in Winnipeg from 1986 to 1988.

     The Review Tribunal concluded that the First Tribunal had made no palpable or manifest error when it held that the Respondent had established a prima facie case of discrimination. However, the Review Tribunal went on to conclude that the First Tribunal had fallen into error when it held that the CAF had not rejected Lt. Colonel Lambie"s candidacy because of his marital status. The Review Tribunal concluded that, on the facts of the case, the Respondent had been discriminated against by the CAF when he was denied the appointment to CFB Greenwood.

Grounds of Review

     The Applicant submits that the Review Tribunal committed four errors which justify this Court"s intervention. The alleged errors are the following:

1.      The Review Tribunal erred when it concluded that the First Tribunal had made a palpable and manifest error in not addressing the proper question in its determination that the CAF had not discriminated against the Respondent.

2.      The Review Tribunal improperly interfered with the First Tribunal"s factual findings since the First Tribunal had not made any reviewable error.

3.      The Review Tribunal erred in failing to apply or in misapplying the test which governs the assessment of credibility.

4.      The Review Tribunal erred in ordering a remedy which was not within its jurisdiction.

Analysis

     The First Tribunal, appointed pursuant to s. 49 of the Act, was composed of two members and, as a result, its decision was subject to an appeal to a Review Tribunal. Pursuant to ss. 56(5) of the Act, a Review Tribunal may, inter alia, render the order that in its opinion the First Tribunal appealed against should have rendered. The provision reads as follows:

(5) A Review Tribunal may dispose of an appeal under section 55 by dismissing it, or by allowing it and rendering the decision or making the order that, in its opinion, the Tribunal appealed against should have rendered or made.

     As I have already indicated, the Review Tribunal allowed the Respondent to call as a witness Mrs. Jacqueline Robertson. The Review Tribunal also allowed the Applicant to call in response to the testimony of Mrs. Robertson, Colonel Friesen, Brigadier General Patrick and Captain Mahoney. Thus, four witnesses testified before the Review Tribunal.

     On the authority of the Federal Court of Appeal"s decision in Cashin v. C.B.C., [1988] 3 F.C. 494, I am of the view that, in the present matter, the Review Tribunal conducted a de novo hearing. In Cashin, Mr. Justice MacGuigan stated (at 501) that:

The first respondent argued that, whether the Review Tribunal heard additional evidence or not, its power to render the decision "that, in its opinion, the Tribunal appealed from should have rendered" [subsection 42.1(6)] enabled it effectively to conduct a hearing de novo . However, in addition to the authority of the Robichaud case, such an interpretation should not, it seems to me, be given to section 42.1 unless it is the clear intention of Parliament, since the bias of the law runs strongly in favour of fact-finding by the tribunal which heard the witnesses. Parliament"s intention, as I read it, appears in fact to be that the hearing should be treated as de novo only if the Review Tribunal receives additional evidence or testimony. Otherwise, it should be bound by the Kathy K principle.

     Where, as here, the Review Tribunal hears additional evidence, it must assess that evidence in the light of the overall evidence which necessarily includes the evidence adduced before the First Tribunal. It goes without saying that because the Review Tribunal heard evidence which was not before the First Tribunal it was entitled take a view of the facts which differed from that of the First Tribunal. However, the Review Tribunal had to be mindful of the fact that it did not have occasion, like the First Tribunal, to hear the evidence of seven witnesses, namely: the Respondent; Lt. General Ashley; Major General Garland; General Chisholm; Brigadier General Curleigh; Brigadier General Doshen; General Sutherland and Captain Roxanne Rees. Additionally, Brigadier General Patrick and Colonel Friesen, who testified before the Review Tribunal, also testified before the First Tribunal.

     I now turn to the substance of the decision rendered by the Review Tribunal on September 28, 1995. The Review Tribunal canvassed the jurisprudence with respect to the burden of proof relating to complaints made under the Act. Briefly put, the initial burden is on the complainant to establish a prima facie case of discrimination based upon one of the proscribed grounds of discrimination under the Act. If the complainant establishes a prima facie case of discrimination then the burden shifts to the respondent to prove that there is a reasonable explanation justifying what may appear to be a discriminatory practice. The respondent must also establish that the justification is not a pretext to cover up a discriminatory practice. [See [1982] 1 S.C.R. 203">Canada (Attorney General) v. Etobicoke, [1982] 1 S.C.R. 203; Ontario Human Rights Commission v. Simpsons-Sears [1985] 2 S.C.R. 536. For the application of these principles as they apply to the federal human rights legislation see Public Service Alliance of Canada v. Canada (Department of National Defence) (1996), 200 N.R. 81.]

         The essence of the Review Tribunal"s decision appears at pages 18 and 19 as follows:

The original Tribunal did not accept General Ashley"s evidence on crucial points and found, rather, inconsistencies in his evidence. We believe that the original Tribunal fell into error when it found that, while there were inconsistencies and contradictions in General Ashley"s evidence, "...the Tribunal is not prepared to find that there has been a deliberate plan to cover up any wrongdoing or improper consideration of marital status on the part of General Ashley". Properly put, what should have been considered was the question of whether a reasonable inference from the facts led one to the conclusion that Lieutenant Colonel Lambie was eliminated from the process by reason of his marital status. The crux of the matter, as was noted by the original Tribunal, involves consideration of the decision that was made by General Ashley in staffing the position of Base Commander at Greenwood and the reasons therefor. If included in those reasons to any degree was consideration of Lieutenant Colonel Lambie"s marital status, it can be said that he was a victim of discrimination. There is, in our view, support for the notion that the evidence advanced on behalf of the respondents is pretextual, and in coming to this conclusion, we take due note of all of the evidence advanced before the original Tribunal, after giving due consideration to the reasons advanced by that Tribunal. We take additional comfort from the fresh evidence advanced before us. We believe, too, that there was sufficient evidence before the original Tribunal to support its finding that on a balance of probabilities, a prima facie case of discrimination had been established. The Tribunal accepted Lieutenant Colonel Lambie"s evidence of his discussion with General Garland concerning his marital status in relation to his anticipated appointment. They found Lieutenant Colonel Lambie"s evidence that he received assurances that the appointment/promotion was "a sure thing with mere formalities left to clear up". We are inclined to accept the evidence of Ms. Robertson, at least to the extent that it is persuasive that there was some discussion of marital status between the described parties, if not the precise detail of her evidence about which one might have some reservations. The credibility of her evidence on the precise point, that there was a discussion of marital status, is compatible with and corroborated by the pattern of events which seemed to point to the conclusion that Lieutenant Colonel Lambie came to the brink of an appointment and then abruptly stopped. In our view, on the balance of probabilities, from the facts revealed in evidence, Lieutenant Colonel Lambie was discriminated against by his employer, the Canadian Armed Forces, when it denied him an appointment and promotion in the course of his employment.

     In my view, the decision rendered by the Review Tribunal must be set aside. My reasons for coming to this conclusion are the following.

     The Review Tribunal examined the First Tribunal"s conclusion that the CAF had provided a reasonable explanation as to why the Respondent had not been appointed. This explanation was held not to be a pretext to cover up a discriminatory practice. The Review Tribunal took the position that the First Tribunal had not asked itself the proper question. The Review Tribunal phrased the proper question as "whether a reasonable inference from the facts led one to the conclusion that Lt. Colonel Lambie was eliminated from the process by reason of his marital status". [C.H.R.R.T. Decision at 18].

     The Applicant is correct in submitting that the Review Tribunal was wrong in concluding that the First Tribunal had committed an error by addressing the wrong question. The First Tribunal did in fact consider the question posed by the Review Tribunal. To begin with, the First Tribunal stated (at page 13) that "[t]his Tribunal, however, does not find that the Complainant's marital status was a factor in this case." This clearly addresses the issue as formulated above. Furthermore, the First Tribunal wrote at pages 14 and 15:

The Tribunal has had the benefit of a thorough examination and cross-examination of the witnesses on both sides of this matter and does not believe it inconsistent to find that Lieutenant Colonel Lambie was essentially correct in his version of the events that culminated in the advice to him that someone else had received the Greenwood job and also to find that there had been no discrimination against him by the Respondent and that there was no improper consideration of marital status by General Ashley in making that decision...[T]he Tribunal is not prepared to find that there has been a deliberate plan to cover-up any wrongdoing or improper consideration of marital status on the part of General Ashley.

     Consequently, the First Tribunal did address the question which according to the Review Tribunal was relevant and, after due consideration, the First Tribunal concluded that the Respondent had not been eliminated because of his marital status. Because the hearing before the Review Tribunal was a de novo hearing, the Review Tribunal was at liberty to reach its own conclusion regarding the facts in evidence and was not bound by the findings of fact made by the First Tribunal. Even though the Review Tribunal was wrong with respect to the proper question to be asked, this does not constitute a reviewable error. In my opinion this disposes of the Applicant's second ground of review as well. The Review Tribunal could have explicitly disagreed with the First Tribunal.

     My purpose in pointing out what appears to be a mistake on the part of the Review Tribunal is to demonstrate that the Review Tribunal was not certain of its own jurisdiction. The Review Tribunal appeared to be of the view that it was necessary for it to find an error on the part of the First Tribunal before it could substitute its own view of the case.

     I now turn to what I consider to be the errors which constitute the grounds for review. In reaching its conclusion, the Review Tribunal pointed out that it had considered all of the evidence adduced before the First Tribunal and the evidence adduced on review.

     Mrs. Robertson testified before the Review Tribunal that she overheard a conversation between Major Garland and Brigadier General Patrick and then a conversation between Lt. General Ashley and Brigadier General Patrick. She testified that during these conversations both Brigadier General Patrick and Lt. General Ashley made comments to the effect that they would not appoint a base commander whose personal life was not in order. Mrs. Robertson testified that Lt. General Ashley and Brigadier General Patrick stated in clear terms that the Respondent would not be appointed and thus, would not be promoted, because he was not legally married to his wife. The Review Tribunal stated that this testimony was corroborated by what the Review Tribunal described as a "pattern of events which seemed to point to the conclusion that Lt. Colonel Lambie came to the brink of an appointment and then abruptly stopped". [C.H.R.R.T. Decision, supra at 19] On the basis of these findings, the Review Tribunal concluded that, on a balance of probabilities, the CAF had discriminated against the Respondent when they appointed Colonel Kirkwood to CFB Greenwood.

     I should also point out that Mrs. Robertson testified that she recalled receiving and reading a written message addressed to Brigadier General Patrick. This message, according to Mrs. Robertson, constituted the appointment of the Respondent as Base Commander to CFB Greenwood by National Defence Headquarters. She further testified that General Patrick had asked her to shred this message, which she did.

     The other witness who gave evidence before the First Tribunal which would tend to support the view that the Respondent came to the brink of an appointment was Captain Roxanne Rees. At the relevant time, Captain Rees was the Staff Officer to Colonel Hamilton who, until March 7, 1987, was the officer responsible for preparing appointment messages. Colonel Hamilton was succeeded in this position by Colonel Friesen. If a written message had been sent by National Headquarters to Air Command in Winnipeg, as suggested by Mrs. Robertson, such a message would have been sent, in all likelihood, by Captain Rees upon being so instructed by either Colonel Friesen or Commodore Cairns.

     Captain Rees testified that sometime in May 1987 she was asked by Commodore Cairns, the person to whom Colonel Hamilton and thus Colonel Friesen would have reported, to call Air Command Headquarters in Winnipeg to ask them to announce the appointment of the Respondent as Base Commander to CFB Greenwood. Captain Rees testified that she made the call which Commodore Cairns had requested her to make but that before the appointment could be announced she was advised by Commodore Cairns to forget about the Lambie appointment.

     During her testimony, Captain Rees made it clear that in the normal course of events, prior to her being instructed to call Air Command Headquarters to ask them to announce the appointment of the Respondent, Lt. General Ashley, as Commander of Air Command, would have been consulted by Colonel Hamilton and/or Colonel Friesen. It was not disputed that the choice, ultimately, as to who would be appointed as Base Commander to CFB Greenwood, was Lt. General Ashley's. Thus for a written message to reach Air Command Headquarters announcing the appointment of the Respondent, or for Captain Rees to call Air Command asking them to announce the Respondent"s appointment, Lt. General Ashley would have necessarily been consulted with regard to the proposed appointment and would have had to agree. Thus, the scenario proposed by Mrs. Robertson and Captain Rees means either that Lt. General Ashley, after having agreed to the appointment of the Respondent changed his mind at the last minute, or that some person(s) had gone ahead and "all but" promoted the Respondent without General Ashley's approval.

     The problem with the Review Tribunal's conclusion is that there is no evidence indicating whether Lt. General Ashley had been consulted prior to June 1, 1987 with respect to the Respondent"s appointment and whether following such consultation he had agreed. To exacerbate the situation the evidence is clearly contradictory with respect to whether a message was actually sent to Air Command. Additionally, there is the obvious contradiction between the story related by Mrs. Robertson and that related by Captain Rees. Although it is open for the Review Tribunal to accept one version of events in preference of another they must do more than state their conclusion. In effect what the Review Tribunal has done is to state a conclusion without giving any substantial reasons for reaching that particular conclusion and not another.

     It is also interesting to point out that Captain Rees wrote in her personal diary on May 22, 1987, that she had been told, probably by Commodore Cairns, that Colonel Kirkwood would be appointed to CFB Greenwood. Captain Rees explained that although she entered this note on May 22nd she had probably obtained this information some time during the preceding week. This evidence appears to contradict the view that at the end of May or early June 1987 the Respondent came to the brink of an appointment. Again, the Review Tribunal should have given some explanation with regard to this obvious conflict in the evidence in order to prevent a reviewing court from having to state that, on the basis of the record, the finding is capricious. I am not saying nor am I suggesting that the Review Tribunal should have addressed every minor statement of each witness however, the Review Tribunal should have explained why it preferred the testimony of some witnesses while it rejected that of others.

     Another reason why the Review Tribunal was of the opinion that the Respondent came to the brink of an appointment appears to be its acceptance of the fact that Colonels Faulkner and Kirkwood, although superior in rank and in qualifications for the appointment, were not available. On that premise the Review Tribunal appears to be suspicious of the efforts made by Lt. General Ashley to convince General Morton, Colonel Kirkwood"s superior, to release him for appointment to CFB Greenwood. The uncontradicted evidence on this issue is that both Colonels Faulkner and Kirkwood worked at National Defence Headquarters under General Morton and that General Morton was reluctant to release either of them. There is further evidence that Colonel Faulkner was not prepared to accept the appointment because that would have meant a separation from his family as his wife had a career in Ottawa which she was unwilling to leave. The evidence is also clear that Lt. General Ashley considered Colonel Faulkner to be the number one candidate for the appointment. Lt. General Ashley"s evidence was that, failing the appointment of Colonel Faulkner, he was ready to appoint Colonel Kirkwood. Lt. General Ashley further explained that one of the qualifications he was looking for in a Base Commander for CFB Greenwood was a candidate who had been a navigator. Both Colonels Faulkner and Kirkwood were navigators. The Respondent was a pilot.⁵

     The limited evidence available, apart from the testimony of Captain Rees and Mrs. Robertson, is to the effect that Colonel Kirkwood was appointed because, in the eyes of those who were responsible for the appointment, he was the best qualified candidate considering that Colonel Faulkner would not accept the appointment. This fact appears to have been completely disregarded by the Review Tribunal. The Review Tribunal appears to have assumed that Colonel Kirkwood was not available. The only evidence on the record regarding what Lt. General Ashley did to persuade General Morton to release Colonel Kirkwood is that General Ashley phoned General Morton to say that he wanted Colonel Kirkwood. Furthermore, there is no evidence with respect to when the offer was actually made to Colonel Kirkwood nor whether he needed to be convinced to take the appointment or whether he was eager to accept the posting once General Morton gave the go-ahead to make the offer. However, the evidence was that an appointment as Base Commander was greatly sought-after.

     In order to accept Mrs. Robertson"s testimony, and presumably that of Captain Rees, as the Review Tribunal did, the Review Tribunal had to conclude that Lt. General Ashley, Brigadier General Patrick and Major General Garland were not being truthful. Although there are inconsistencies in the evidence of these officers, there also were inconsistencies, as I have pointed out, between the testimonies of Captain Rees and Mrs. Robertson. The Review Tribunal made no attempt whatsoever to reconcile these contradictions. Furthermore, the Review Tribunal did not deal with or acknowledge the inconsistencies within the testimony which it accepted as truthful. The Review Tribunal noted the problem but did not resolve it when it stated (at 19):

We are inclined to accept the evidence of Ms. Robertson, at least to the extent that it is persuasive that there was some discussion of marital status between the described parties, if not the precise detail of her evidence about which one might have some reservations.

     In my view the decision attacked must be set aside because the Review Tribunal disregarded any evidence which did not support its conclusion that the Respondent had been discriminated against. The Review Tribunal clearly stated its conclusion without giving a reasonable explanation as to why it reached that conclusion.     

     The Applicant has also challenged the remedy given by the Review Tribunal. Specifically the Applicant has alleged that the remedy was ultra vires the Review Tribunal as being outside of the ambit of s. 53 of the CHRA. Furthermore the Applicant alleged that, even if the CAF had eliminated the Respondent on the basis of his marital status, they eliminated him from the competition for the position of Base Commander and had not denied him that position per se.

     The relevant portion of the Review Tribunal decision reads as follows [C.H.R.R.T., supra at 19-20]:

Lt. Colonel Lambie, now retired from the Canadian Armed Forces, cannot be appointed to a Base Command position, as he probably would have been had he not been discriminated against; indeed, there cannot be further opportunities for advancement which would possibly have come with that appointment.

The Review Tribunal does have jurisdiction, however, to attempt to place Lt. Col. Lambie today in a position which, if he had not been discriminated against, he would have found himself. Therefore the Review Tribunal makes the following Order:

1.      The Respondent shall amend its record of the career of Lt. Colonel Lambie to indicate his promotion to the rank of Colonel, effective July 1, 1987.

2.      The Parties shall appoint, within 30 days of the date of this decision, a mutually agreeable arbitrator to determine and calculate the following:

A.      retroactive payment of salary differential by the Respondent to the Complainant, based upon his promotion to the rank of Colonel

B.      any pension benefit differential and/or change to be given to the Complainant by the Respondent because of his promotion to the rank of Colonel

C.      all other benefits accruing to the Complainant as an officer with the rank of Colonel, including but not limited to SISIP and GOIP benefits

3.      The Respondent shall pay to the Complainant compensation for leave and time spent to develop and prepare his complaint to the Canadian Human Rights Commission, as well as to attend the hearings of his case. The arbitrator chosen to determine and calculate payments and benefits noted in Order Number 2 shall facilitate this calculation.

The relevant portion of the CHRA reads as follows:

...

53(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:

     . . .

(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 costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice.

     The first issue to be addressed is the burden of proof on the Claimant with respect to whether the discriminatory practice led to the loss of a possibility of employment or the probability of employment. This issue was discussed in Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401 (F.C.A.). In Morgan the court was split as to whether the appropriate standard of proof was a "possibility" or a "probability". Although MacGuigan J.A. dissented in the result, there was no majority opinion on the appropriate test in such cases because Mahoney J.A. held that it was unnecessary to decide the issue. I agree with the following statement of the appropriate test given by MacGuigan J.A:

[A tribunal] is entitled to look at the probable result of the whole process in the light of the evidence before it. The result does not have to be certain, but rather to be based on the best inference the tribunal can make from the facts.

[at 425, emphasis in original]

     In my view the Claimant's burden on this issue is the same as with any other issue. The Claimant bears the civil burden. This means that a claimant must establish, on a balance of probabilities, that he or she lost either a job or the possibility of a job. Of course, whether the claimant can establish the definitive loss or the loss of only the opportunity to compete will affect the quantum of damages to which he or she is entitled, but not the entitlement itself.

     In the case before me, if the conclusion reached by the Review Tribunal were held to be correct then it is clear that the Respondent was deprived of the job. If one could accept on the evidence that the Respondent "came to the brink of an appointment and then abruptly stopped" then one must necessarily conclude that the Respondent was deprived of a job and not merely the possibility of competing for one. Furthermore, even on the Applicant's evidence of the procedure followed within the CAF for promotions, if the Review Tribunal's version were accepted the Respondent would have been next in line for the appointment and the accompanying promotion. If General Ashley pursued Colonel Kirkwood only because of the Respondent's marital status as the Review Tribunal found, then the Respondent would clearly have been denied an actual posting and promotion and not merely the opportunity to compete.

     The other issue which the Applicant raises is whether a Human Rights Tribunal has the power to award the Claimant a sum for "leave and time spent to develop and prepare his complaint". 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 lawyer⁶ 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.

     For these reasons this judicial review application is allowed. The matter shall be returned to a newly constituted Review Tribunal. The new Tribunal shall determine the issues on the record as it stood before the Review Tribunal. However, it will be open to the new Tribunal to allow the parties to adduce evidence from witnesses who have not previously testified before the First Tribunal or the Review Tribunal.

    

     Judge

Ottawa, Ontario

December 23, 1996

     T-2250-95

OTTAWA, Ontario, this 23rd day of December 1996

BEFORE:      The Honourable Mr. Justice Nadon

BETWEEN:

     ATTORNEY GENERAL OF CANADA,

     Applicant,

- and -

     JAMES RUSSELL LAMBIE and

     CANADIAN HUMAN RIGHTS COMMISSION,

     Respondents.

     ORDER

     UPON application on behalf of the applicant for:

(a)      an Order pursuant to ss. 18 and 18.1 of the Federal Court Act setting aside the Decision dated September 15, 1995, of a Canadian Human Rights Review Tribunal (the "Review Tribunal") apointed under the Canadian Human Rights Act

(b)      an Order remitting the matter back to the Review Tribunal with a direction that the appeal of the Respondent James Russell Lambie be dismissed; and

(c)      for such other Order as may be just in the circumstances.

     THE COURT HEREBY ORDERS:

     The Applicant's judicial review is allowed. The matter shall be returned to a newly constituted Review tribunal which shall determine the issues on the record as it stood before the Review Tribunal. However, the new Review Tribunal shall be at liberty to hear evidence from witnesses who have not testified before either the First Tribunal or the Review Tribunal.

                             "MARC NADON"

                                 JUDGE

__________________

¹      The bases in 1987 were: CFB Edmonton; CFB Ottawa; CFB Trenton; CFB Bagotville; CFB Cold Lake; CFB Goose Bay; CFB North Bay; CFB Comox; CFB Greenwood; CFB Sheerwater; CFB Moose Jaw; CFB Winnipeg; CFB Chatham; CFB Toronto; CFB Summerside; CFB Portage la Prairie.

²      In 1967 the armed forces were unified and the Army was re-named as Mobile Command, the Navy was referred to as Maritime Command and the Air Force was named Air Command.

³      Maritime Air Group (MAG), although a group which reported to Air Command, responded to the needs of Maritime Command in that it provided land and sea based air support to the navy. MAG included the following bases: CFB Comox; CFB Greenwood and CFB Sheerwater.

⁴      In fact the decision of Mr. Justice Rothstein [[1995] 1 F.C. 680] upheld the Review Tribunal decision to permit the Applicant Lambie to call two additional witnesses and ordered that the Respondent Crown be permitted to call evidence in rebuttal. However, the Applicant called only one witness.

⁵      General Chisholm testified that in 1987 there were only six bases in Air Command which could be commanded by a navigator. These bases were: CFB Greenwood; CFB Sheerwater; CFB Summerside; CFB Comox; CFB Trenton and CFB Edmonton. [Chisholm at 377 Applicant's Application Record]. Furthermore, General Ashley testified that he was mindful of the limited opportunities for navigators and wanted to provide them with a fair opportunity in command positions. [Ashley at 618 Applicant's Application Record]

⁶      A Commission lawyer represented the Respondent's interests before the First Tribunal. The Respondent however had his own lawyer for the proceedings before the Review Tribunal and the proceedings before me.