First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada)

First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada)
Collection
Canadian Human Rights Tribunal
Date
2020-04-16
Neutral citation
2020 CHRT 7
File number(s)
T1340/7008
Decision-maker(s)
Marchildon, Sophie; Lustig, Edward P.
Decision type
Ruling
Grounds
National or Ethnic Origin
Race
Notes
Decision Content
Canadian Human
Tribunal canadien
Citation: 2020 CHRT
7
Date:
April 16, 2020
File No.:
T1340/7008
Between:
First Nations Child and Family Caring Society of Canada
- and
-Assembly of First Nations
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Attorney General of Canada
(Representing the Minister of Indigenous and Northern Affairs Canada)
Respondent
- and -
Chiefs of Ontario
- and -
Amnesty International
- and -
Nishnawbe Aski Nation
Interested parties
Ruling
Members:
Sophie Marchildon
Edward P. Lustig
Table of Contents
Reasons on Three Questions Regarding Eligibility for Compensation 1
I. Context 1
II. Question 1) At what age should beneficiaries gain unrestricted access to the compensation? 3
A. The First Nations Child and Family Caring Society of Canada’s Position 3
B. The Assembly of First Nations’ Position 5
C. The Canadian Human Rights Commission’s Position 6
D. The Chiefs of Ontario’s Position 6
E. The Nishnawbe Aski Nation’s Position 6
F. Canada’s Position 6
G. Analysis 7
H. Order 9
III. Question 2) Should compensation be available to children who entered care prior to January 1, 2006 but remained in care as of that date? 9
A. The First Nations Child and Family Caring Society of Canada’s Position 10
B. The Assembly of First Nations’ Position 10
C. The Canadian Human Rights Commission’s Position 11
D. The Chiefs of Ontario’s Position 11
E. The Nishnawbe Aski Nation’s Position 11
F. Canada’s Position 11
G. Analysis 12
H. Orders 23
IV. Question 3) Should compensation be paid to the estates of deceased individuals who otherwise would have been eligible? 23
A. The First Nations Child and Family Caring Society of Canada’s Position 24
B. The Assembly of First Nations’ Position 25
C. The Canadian Human Rights Commission’s Position 27
D. The Chiefs of Ontario’s Position 29
E. The Nishnawbe Aski Nation’s Position 29
F. Canada’s Position 29
G. Analysis 30
H. Order 40
I. Other Important Considerations 40
V. Retention of Jurisdiction 42
Reasons on Three Questions Regarding Eligibility for Compensation I. Context [1] On September 6, 2019, the Tribunal rendered its decision on the issue of compensation remedies (First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2019 CHRT 39 [Compensation Decision]) and found Canada liable to pay compensation under the Canadian Human Rights Act, RSC 1985, c H-6 (CHRA) to victims/survivors of its discriminatory practices, namely First Nations children and their parents or grandparents (caregivers).
[2] The Panel finds it important to reiterate the significant context and findings in which the compensation order was decided and has reproduced a summary of its decision in the Compensation Decision below:
[13] This ruling is dedicated to all the First Nations children, their families and communities who were harmed by the unnecessary removal of children from your homes and your communities. The Panel desires to acknowledge the great suffering that you have endured as victims/survivors of Canada’s discriminatory practices. The Panel highlights that our legislation places a cap on the remedies under sections 53 (2) (e) and 53 (3) of the CHRA for victims the maximum being $40,000 and that this amount is reserved for the worst cases. The Panel believes that the unnecessary removal of children from your homes, families and communities qualifies as a worst-case scenario which […] and, a breach of your fundamental human rights. The Panel stresses the fact that this amount can never be considered as proportional to the pain suffered and accepting the amount for remedies is not an acknowledgment on your part that this is its value. No amount of compensation can ever recover what you have lost, the scars that are left on your souls or the suffering that you have gone through as a result of racism, colonial practices and discrimination. This is the truth. In awarding the maximum amount allowed under our Statute, the Panel recognizes, to the best of its ability and with the tools that it currently has under the CHRA, that this case of racial discrimination is one of the worst possible cases warranting the maximum awards. The proposition that a systemic case can only warrant systemic remedies is not supported by the law and jurisprudence. The CHRA regime allows for both individual and systemic remedies if supported by the evidence in a particular case. In this case, the evidence supports both individual and systemic remedies. The Tribunal was clear from the beginning of its Decision that the Federal First Nations child welfare program is negatively impacting First Nations children and families it undertook to serve and protect. The gaps and adverse effects are a result of a colonial system that elected to base its model on a financial funding model and authorities dividing services into separate programs without proper coordination or funding and was not based on First Nations children and families’ real needs and substantive equality. Systemic orders such as reform and a broad definition of Jordan’s Principle are means to address those flaws
[14] Individual remedies are meant to deter the reoccurrence of the discriminatory practice or of similar ones, and more importantly to validate the victims/survivors’ hurtful experience resulting from the discrimination
[15] When the discriminatory practice was known or ought to have been known, the damages under the wilful and reckless head send a strong message that tolerating such a practice of breaching protected human rights is unacceptable in Canada.
(Compensation Decision at paras. 13-15)
[3] Furthermore, in its decision, the Panel also directed the First Nations Child and Family Caring Society of Canada (Caring Society), the Assembly of First Nations (AFN) and Canada to discuss possible options, to consult with the Commission, Chiefs of Ontario (COO) and Nishnawbe Aski Nation (NAN) on a process for identifying specific victims or distributing the compensation and to return to the Tribunal on February 21, 2020 with their proposals.
[4] After discussions, the Caring Society, the AFN and Canada have created a draft “Framework for the Payment of Compensation under 2019 CHRT 39” (the “Draft Framework”) that sets out proposals on implementation that they have agreed to as of February 21, 2020. This Draft Framework has not yet been finalized and the parties have now requested the Tribunal to rule on three questions where they did not reach a consensus and required further guidance from this Panel.
[5] On February 28, 2020, the Attorney General of Canada (AGC) wrote a letter to the Tribunal indicating that no party wished to file a reply on those three questions and confirmed that the three questions could now be taken under reserve by the Panel.
[6] On March 3, 2020, the Panel sought the parties’ views on a specific case related to one of the three questions and the parties’ submissions were received on March 11, 2020.
[7] Finally, on March 16, 2020, the Panel reached a decision on the three questions, and in the interests of expediency and to facilitate resolution, its determinations were provided in a short form with full reasons to follow shortly. That format is consistent with an oral ruling issued from the bench. The full reasons are outlined in this ruling.
II. Question 1) At what age should beneficiaries gain unrestricted access to the compensation?
[8] Decision: The provincial/territorial age of majority
A. The First Nations Child and Family Caring Society of Canada’s Position [9] The Caring Society argues that compensation should only be paid to victims/survivors who are 25 years of age and older, rather than by relying on the provincial/territorial ages of majority, with an exception for those aged 18-25 who wish to access funds for education or for “compelling compassionate reasons”. The Caring Society argues that children are a highly vulnerable group, and society recognizes this, building structures to protect them from making decisions they are not adequately prepared to make is appropriate.
[10] The Caring Society contends that current age of majority presumptions, are premised on a societal belief that the once they transition to adulthood, people are less impulsive and susceptible to peer pressure, better able to understand complex concepts and appreciate risks and consequences. However, the Caring Society’s position is that such growth should not be presumed to occur at an age which was somewhat arbitrarily chosen by legislatures.
[11] The Caring Society cites Lord Scarman from his concurring 1985 reasons in Gillick v. West Norfolk and Wisbech Area Health Authority, which were quoted by the Supreme Court of Canada in A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at para. 51:
… The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose on the process of “growing up” fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change ….
[12] The Caring Society argues that research in the areas of child development and neuroscience provide the same conclusion as Lord Scarman: effectively, the process of maturation is a continuous one, and that the “age of transition” is closer to 25 years. The Caring Society provided the Tribunal with an expert report prepared by Dr. Sidney Segalowitz, a professor of psychology and neuroscience, to support its position. Dr. Segalowitz’s evidence advances that brain development continues past age 18 and levels off at approximately 25 years old for healthy individuals.
[13] Dr. Segalowitz’s research is summarized at page 4 of his report as follows:
There is growing consensus that, for many important functions, the average age at which brain development in healthy individuals’ asymptotes is about 25 years. However, there will be a sizable group whose trajectory is behind this schedule as well as some ahead of it. This can be for a number of reasons. […] The research […] has led us to this average figure of 25 years for some developmental process and the various factors that can interfere with this normative trajectory.
[14] In arriving at this finding, Dr. Segalowitz reviews the current research on brain development and suggests that the mental functions most associated with adult maturity involve emotional self-regulation and complex cognitive functions involving attention, memory and inhibitory control. Risk-taking is a key concern among young people, especially when in the presence of peers. Impulsivity and sensation-seeking behaviours decrease gradually through adolescence, according to Dr. Segalowitz, and there is a major reduction in such behaviour in the 26-30 years range.
[15] Importantly, Dr. Segalowitz notes that negative early life experiences (such as chronic stress, poverty, poor nutrition, exposure to air and water pollution, pre- and post-natal drug exposure, traumatic brain injury and PTSD) can put an individual’s mental health trajectory at risk by compromising brain growth in regions related to emotional self-regulation and cognitive processing.
[16] Dr. Segalowitz’s evidence, the Caring Society argues, is illustrative of the fact that scientific knowledge on brain development has made significant advances since the time when provincial ages of majority were set in the 1970’s. The scientific evidence provided by Dr. Segalowitz, coupled with the ‘egregious nature of the harm and adverse impacts experienced by the child victims in this case’ points to payment at age 25 as the only appropriate result, according to the Caring Society.
B. The Assembly of First Nations’ Position [17] The AFN disagrees with the Caring Society’s proposal on this issue, pointing instead to provincial legislation on age of majority as well as laws which lay out duties of property guardians upon a minor attaining the age of majority. Section 53 of Ontario’s Children’s Law Reform Act, RSO 1990, c C.12, for example, provides that guardians of property must transfer to the child all property in the care of the guardian when the child attains the age of eighteen years. Similarly, the Indian Act, RSC 1985, c I-5 provides at s. 52 that the Minister can appoint guardians of property for infant children under the Act’s jurisdiction, but at s. 52.3(1) specifies that any property held for them must be conveyed to the child in lump sum upon attaining the age of majority.
[18] The AFN points to trust law in support of its argument that distribution at an age higher than the provincial/territorial age of majority would be problematic. They cite the rule in Saunders v. Vautier, summarized by the Supreme Court of Canada in Buschau v. Rogers Communications Inc., 2006 SCC 28 as follows at para 21:
The common law rule in Saunders v. Vautier can be concisely stated as allowing beneficiaries of a trust to depart from the settlor’s original intentions provided that they are of full legal capacity and are together entitled to all the rights of beneficial ownership in the trust property. More formally, the rule is stated as follows in Underhill and Hayton: Law of Trusts and Trustees (14th ed. 1987), at p. 628:
If there is only one beneficiary, or if there are several (whether entitled concurrently or successively) and they are all of one mind, and he or they are not under any disability, the specific performance of the trust may be arrested, and the trust modified or extinguished by him or them without reference to the wishes of the settlor or trustees.
[19] The AFN also cites two cases where structured settlements (arrangements through which claimants can receive all or part of a settlement by way of periodic payments rather than via lump sum) established by court order were modified or extinguished where trust beneficiaries were capable of managing their own affairs. (See Hubbard v Hubbard, 140 ACWS (3d) 216, 2005 CanLII 20811 (ONSC) and Grieg v National Trust Co, 47 BCLR (3d) 42, 1998 CanLII 4239 (BCSC)).
C. The Canadian Human Rights Commission’s Position [20] The Commission ultimately takes no position on the question of the appropriate age for receiving compensation. That said, in light of the evidence provided by the Caring Society in support of its position, the Commission does share a concern that young persons in the period of ‘emerging adulthood’, may face unique challenges or pressures if substantial sums of money are suddenly made available to them. The Commission points out that potential beneficiaries will have faced discrimination and may have been impacted by other forms of marginalization and disadvantage which could add to their vulnerability. For these reasons, regardless of what minimum age may eventually be selected for paying out compensation awards, it will be critically important for Canada to follow through on the laudable commitments made in the Draft Framework to adequately fund the delivery of culturally-appropriate financial and other supports to beneficiaries.
D. The Chiefs of Ontario’s Position [21] The COO did not take any position on this question.
E. The Nishnawbe Aski Nation’s Position [22] The NAN did not take any position on this question.
F. Canada’s Position [23] The AGC advances that a child’s unrestricted access to the compensation should coincide with attaining the age of majority set by their home province or territory. Even Indigenous Services Canada’s own Social Programs National Manual 2017-2018 refers back to the provincial or territorial legislation to determine age of majority. Such an approach, according to the AGC, would ensure that First Nations children who may receive a benefit are treated equally to their same-age peers in the place where they reside. No other approach, the AGC argues (including the one proposed by the Caring Society) is justifiable. The AGC suggests that approaches encouraging deviation from well-established norms around age of majority would be best directed at the legislatures who set the approach to age of majority.
G. Analysis [24] Throughout all of its decisions and rulings, the Panel has consistently stressed the importance of responding to the specific needs of First Nations children and families and avoiding a one-size-fits-all approach. This reasoning was applied in crafting its orders and remains the backdrop for all its considerations. While the Panel also discussed the need to respond to the specific needs of First Nations Child and Family Services Agencies, it emphasized that the decision was about children and their families and meeting their specific needs. The Panel believes that this reasoning respects substantive equality and upholds each child’s fundamental human rights in recognizing that each child is unique and may have different needs, culture, teachings, values, aspirations and circumstances.
[25] This being said, the Panel does share the Caring Society and the Commission’s concerns, outlined above, that young adults in the period of ‘emerging adulthood’, may face unique challenges or pressures if substantial sums of money are suddenly made available to them. Some of them will have faced discrimination and may have been impacted by other forms of marginalization and disadvantage which could add to their vulnerability. The Panel also shares the same concerns for other vulnerable adults above the age of 25.
[26] While the expert evidence is compelling it remains untested in these proceedings and also is insufficient to outweigh the legislators’ intent expressed in legislation in each Province/Territory that has already determined the age of majority. The Panel is not convinced by the case law cited by the Caring Society in support of its position and finds it does not trump Provincial/Territorial legislation in that regard.
[27] Of note, some of those same young adults may be parents of young children themselves which is arguably a more significant responsibility than that of administrating large sums of money. The Panel has difficulty reconciling the Caring Society’s position with the place that young adults aged 18-24 legally and practically occupy in society, which includes many legislated rights and the parenting role that some may hold.
[28] In addition, none of the other parties share the Caring Society’s position on this question.
[29] Moreover, siding with the Caring Society on this point may result in engendering liabilities for the trust fund where young adults could potentially allege discrimination on the basis of age. While the Panel concedes that some young adults may experience difficulty handling large sums of money awarded as compensation, the Panel believes that barring all 18-24-year-old victims/survivors across Canada from receiving compensation is unreasonable. The Panel would prefer that vulnerable young adults who need and desire counsel and assistance be able to access it as part of the compensation process.
[30] That said, as part of the Caring Society’s significant work on the compensation process, it entered into an agreement with Youth in Care Canada (YICC), a national charitable organization for youth in care and formerly in care, to organize a national consultation with First Nations youth in care and formerly in care regarding the compensation process. Following the consultations, YICC worked independently to produce a report with two main objectives:
Provide recommendations to the Caring Society on the process for distributing the funds, with consideration to children in vulnerable circumstances; and Provide recommendations to alleviate risks that providing additional funds to certain primary caregivers may increase the family risk level.
[31] YICC issued a report including a series of recommendations for the compensation process and, while they desire to continue their reflection and work on the compensation process, they did not yet recommend to raise the age of unrestricted access to the compensation funds to 25 years old (See exhibit 11 to Dr. Blackstock’s affidavit dated December 2019).
[32] While the YICC did not recommend raising the age of unrestricted access to the compensation funds to 25 years old, it proposed a number of relevant recommendations such as healing circles; support for counselling or therapy; navigational support; mental health supports to help with youth’s experiences and challenges; continued support after compensation; mental health supports and navigational assistance to help youth apply for compensation; restitution for children and youth who have died while in care or due to their experiences in the child welfare system; youth’s compensation paid to parents, grandparents or to a trust fund; offering non mandatory financial training for youth receiving compensation; and awareness training offered to recipients about predatory banks and financial institutions like those that swindled compensation from residential school survivors.
[33] The Panel generally agrees with those recommendations.
[34] Furthermore, the Panel believes the Draft Framework should include the currently proposed supports for compensation beneficiaries and should consider including additional supports. In sum, adequate support for young adults and all persons receiving compensation, culturally appropriate services, access to financial advisers, mental health supports, guidance from Elders, etc., could alleviate some of the concerns raised by the Caring Society and the Commission. The Panel strongly encourages the parties to maintain or include such provisions in the Draft Framework to ensure the Draft Framework best supports reconciliation between First Nations and Canada.
[35] For the reasons above, the Panel prefers the AFN and the AGC’s positions on this question.
H. Order [36] The provincial/territorial age of majority is determined to be the age for victims/survivors/beneficiaries to gain unrestricted access to the compensation.
III. Question 2) Should compensation be available to children who entered care prior to January 1, 2006 but remained in care as of that date?
[37] Decision: Yes
[38] As part of the parties’ three questions, another sub-question was also included as part of question 2. It is a request from the Caring Society for compensation for the parents and caregiving grandparents of children who entered care prior to January 1, 2006 but remained in care as of that date. While the above question 2 wording does not reflect this request, it was considered by this Panel given that all parties had an ample opportunity to make full submissions on this question. The Panel believes that it is appropriate to also include its reasons and determination on this point as part of this present ruling.
A. The First Nations Child and Family Caring Society of Canada’s Position [39] The Caring Society argues that an interpretation of the Compensation Decision which includes children in care as of January 1, 2006 (but who were removed earlier) and their caregivers is supported by the Tribunal’s reasons in both First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 [Merit Decision] and the Compensation Decision.
[40] In doing so, the Caring Society points to the Tribunal’s repeated emphasis on the harms associated with apprehension, removals and family/community separation. Put plainly, the Caring Society suggests that the question to be answered is: As of January 1, 2006, “which children were being harmed by Canada’s discriminatory practices?” The answer put forward by the Caring Society is that it was children in care as of that date, as well as those taken into care thereafter. The Caring Society advances that discrimination experienced by those children, and their caregivers, is virtually identical and rooted in the very same set of facts which led the Tribunal to find discrimination.
B. The Assembly of First Nations’ Position [41] The AFN shares the Caring Society’s view that if a child was in care as of January 1, 2006, the date of removal should be immaterial. The AFN asserts that those children experienced the same harms and discrimination as children who came into care on or after January 1, 2006.
C. The Canadian Human Rights Commission’s Position [42] The Commission advances that while, as pointed out by Canada, the temporal scope of the order is relatively clear on its face, the underlying goals of the compensation order should be considered for cases of children who were removed from home before January 1, 2006 but remained in care as of that date.
[43] The Commission also points to para. 270 of the Compensation Decision, where the Panel explicitly retained jurisdiction over a number of issues, welcoming “any comment/suggestion and request for clarification from any party in regards to moving forward with the compensation process and/or the wording and/or content of the orders. For example, if categories of victims/survivors should be further detailed and new categories added.” This, the Commission argues, is indicative of a clear retention of jurisdiction and thereby the Panel is not functus officio on those matters.
D. The Chiefs of Ontario’s Position [44] The COO did not take any position on this question.
E. The Nishnawbe Aski Nation’s Position [45] The NAN adopts and relies on the Caring Society’s position on this question. The NAN submits that children in care prior to January 1, 2006 and as of January 1, 2006, who were removed from their homes for compensable reasons per the Tribunal’s compensation entitlement order should be entitled to compensation. According to the NAN, these children and their primary caregivers, were deprived of the opportunity to be reunited with their families in a timely manner during the eligibility period set out by the Tribunal.
F. Canada’s Position [46] The AGC argues that compensation should be payable only to those who entered care after the complaint was instituted. The AGC claims that the complaint itself, the Compensation Decision, and an analysis of the Tribunal’s statutory jurisdiction are supportive of this position.
[47] The AGC points out in particular the following excerpt, from para. 245 of the Compensation Decision, where the Panel ordered Canada to pay… “$20,000 to each First Nation child removed from its home, family and community between January 1, 2006 [and a date to be determined]” [Emphasis in original]. It points out two other instances in the decision where exact dates were listed and bolded as being further indicative of a clear intent by the Panel to provide exact dates in exercising its remedial powers under s. 53 of the CHRA (see paras 249 and 251). The Panel could not have been clearer, the AGC argues, that based on its assessment of the evidence, January 1, 2006 was that date on which the discrimination was found to have begun, and to extend the scope for compensation to any time period predating that date would be to re-write the judgment.
[48] With respect to compensation under Jordan’s Principle, the AGC submits that the Panel was also clear. At para. 251, compensation was also for a defined period, Dec. 12, 2007-November 2, 2017. These dates were also placed in bold in the judgment.
[49] The AGC further argues that it is apparent that the Panel carefully considered the matter of when discrimination occurred for the purposes of exercising its jurisdiction under s. 53 of the CHRA.
[50] The AGC further suggests that such potential beneficiaries would be able to access compensation via one of the two as-yet-uncertified class actions which have been filed in Federal Court seeking compensation for those who fall outside of the timelines established by the Tribunal’s Compensation Decision. The AGC says that it has announced that it would compensate children affected by the discrimination found in the Merit Decision even where they fall outside of the terms of the complaint. According to the AGC, a class action, would be an appropriate vehicle to do so.
G. Analysis [51] The Panel in its Compensation Decision, has clearly left the orders open to possible amendments in case any party, including Canada, wanted to add or clarify categories of victims/survivors or wording amendments to the ruling similar to the process related to the Tribunal’s ruling in 2018 CHRT 4 and also informed by the process surrounding the Tribunal’s rulings in 2017 CHRT 14 and 2017 CHRT 35. While this practice is rare, in this specific ground-breaking and complex case it is beneficial and also acknowledges the importance of the parties’ input and expertise in regards to the effectiveness of the Panel’s orders.
[52] The Panel explicitly retained jurisdiction over compensation (see Compensation Decision at para. 277), including on a number of issues as part of the compensation process consultation, welcoming any comments, suggestions and requests for clarification from any party in regards to moving forward with the compensation process and the wording or content of the orders. For example, whether the categories of victims/survivors should be further specified or new categories added (see Compensation Decision at para. 270).
[53] This is a clear indication that the Panel was open to suggestions for possible modifications of the Compensation Decision Order, welcoming comments and suggestions from any party. The Panel originally chose the January 1, 2006 and December 2007 cut-off dates following the Caring Society’s requests in its last compensation submissions with the understanding that the evidence before the Tribunal supported those dates and also supported earlier dates as well. Considering this, instead of making orders above what was requested, the Panel opted for an order including the possibility of making amendments or further compensation orders. The Panel was mindful that parties upon discussion of the compensation orders and process may wish to add or further specify categories of compensation beneficiaries. This process is complex and requires flexibility.
[54] Furthermore, the Federal Court in Grover v. Canada (National Research Council) (1994), 80 FTR 256, 28 Admin LR (2d) 231 (F.C.) [Grover], a case that this Panel relied on in previous decisions in this case (see for example, 2017 CHRT 14, at para. 32, see also 2018 CHRT 4 at para. 39), an application for judicial review of a Tribunal decision had to decide whether the Tribunal had the power to reserve jurisdiction with regards to a remedial order. Grover is summarized as follows in Berberi v. Attorney General of Canada, 2011 CHRT 23 [Berberi]:
[13] …The Tribunal had ordered that the complainant be appointed to a specific job, but retained jurisdiction to hear further evidence with regards to the implementation of the order. The Federal Court held that although the Act does not contain an express provision that allows the Tribunal to reopen an inquiry, the wide remedial powers set out therein, coupled with the principle that human rights legislation should be interpreted liberally, in a manner that accords full recognition and effect to the rights protected under such legislation, enables the Tribunal to reserve jurisdiction on certain matters in order to ensure that the remedies ordered by the Tribunal are forthcoming to complainants (see Grover at paras. 29-36). The Federal Court added:
[14] It is clear that the Act compels the award of effective remedies and therefore, in certain circumstances the Tribunal must be given the ability to ensure that their remedial orders are effectively implemented. Therefore, the remedial powers in subsection 53(2) should be interpreted as including the power to reserve jurisdiction on certain matters in order to ensure that the remedies ordered by the Tribunal are forthcoming to complainants. The denial of such a power would be overly formalistic and would defeat the remedial purpose of the legislation. In the context of a rather complex remedial order, it makes sense for the Tribunal to remain seized of jurisdiction with respect to remedial issues in order to facilitate the implementation of the remedy. This is consistent with the overall purpose of the legislation and with the flexible approach advocated by Sopinka J. in Chandler, supra. It would frustrate the mandate of the legislation to require the complainant to seek the enforcement of an unambiguous order in the Federal Court or to file a new complaint in order to obtain the full remedy awarded by the Tribunal. (Grover at para. 33)
[15] Similarly, in Canada (Attorney General) v. Moore, [1998] 4 F.C. 585 [Moore], the Federal Court had to determine whether the Tribunal exceeded its jurisdiction by reconsidering and changing a cease and desist order. Having found the complaint to be substantiated, the Tribunal made a general direction in its order and gave the parties the opportunity to work out the details of the order while the Tribunal retained jurisdiction. After examining the reasoning in Grover and Chandler, the Federal Court stated:
[16] The reasoning in these cases supports the conclusion that the Tribunal has broad discretion to return to a matter and I find that it had discretion in the circumstances here. Whether that discretion is appropriately exercised by the Tribunal will depend on the circumstances of each case. That is consistent with the principle set out in Chandler v. Alberta Association of Architects, relied upon by the applicant, which dealt with the decision of a board other than the Canadian Human Rights Tribunal. (Moore at para. 49)
[17] The Federal Court determined that the Tribunal had reserved jurisdiction and there was no indication that the Tribunal viewed its decision as final and conclusive in a manner that would preclude it from returning to a matter included in the order. Therefore, on the authority of Grover, the Federal Court concluded that subsection 53(2) of the Act empowered the Tribunal to reopen the proceedings (see Moore at para. 50).
[18] The Tribunal jurisprudence that has considered the functus officio principle and interpreted Grover and Moore, has generally found that absent a reservation of jurisdiction from the Tribunal on an issue, the Tribunal’s decision is final unless an exception to the functus officio principle can be established (see Douglas v. SLH Transport Inc., 2010 CHRT 25; Walden v. Canada (Social Development), 2010 CHRT 19; Warman v. Beaumont, 2009 CHRT 32; and, Goyette v. Voyageur Colonial Ltée, (November 16, 2001), TD 14/01 (CHRT)). However, recent Federal Court jurisprudence, decided several years after Grover and Moore and which examined the authority of the Commission to reconsider its decisions, provides further guidance on the application of the functus officio principle to administrative tribunals and commissions.
(Berberi at paras. 13-18, emphasis ours)
[21] The application of the functus officio principle to administrative tribunals must be flexible and not overly formalistic (see Chandler at para. 21). In Grover, in determining whether the Tribunal could supervise the implementation of its remedial orders, the Federal Court recognized that the Tribunal has the power to retain jurisdiction over its remedial orders to ensure that they are effectively implemented. In Moore, in deciding whether the Tribunal could reconsider and change a remedial order, the Federal Court expanded on the reasoning in Grover and stated that “the Tribunal has broad discretion to return to a matter...” (Moore at para. 49). In Grover and Moore, while the retention of jurisdiction by the Tribunal was a factor considered by the Federal Court in determining whether the Tribunal appropriately exercised its discretion to return to a matter, ultimately, it was not the only factor considered by the Court. In addition to examining the context of each case, the Tribunal must also consider whether “there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation” (Chandler at para. 22). This method of analyzing the Tribunal’s discretion to return to a matter is consistent with the Federal Court’s reasoning in Kleysen and Merham. The question then becomes: considering the Act and the circumstances of the case, should the Tribunal return to the matter in order to discharge the function committed to it by the Canadian Human Rights Act?
[22] The primary focus of the Act is to “...identify and eliminate discrimination” (Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 at para. 13). In this regard, subsection 53(2) of the Act grants the Tribunal broad remedial discretion to eliminate discrimination when a complaint of discrimination is substantiated (see Grover at para. 31). Therefore, as the Federal Court has stated, “subsection 53(2) should be interpreted in a manner which best facilitates the compensation of those subject to discrimination” (Grover at para. 32). The Act does not provide a right of appeal of Tribunal decisions, and judicial review is not the appropriate forum to seek out the implementation of a Tribunal decision. As the Federal Court indicated to the Complainant: “The Applicant is at liberty to seek an order from the Tribunal with respect to implementation of the remedy” (Berberi v. Canadian Human Rights Tribunal and Attorney General of Canada (RCMP), 2011 FC 485 at para. 65). When the Tribunal makes a remedial order under subsection 53(2), that order can be made an order of the Federal Court for the purposes of enforcement under section 57 of the Act. Section 57 allows decisions of the Tribunal to “...be enforced on their own account through contempt proceedings because they, like decisions of the superior Courts, are considered by the legislator to be deserving of the respect which the contempt powers are intended to impose” (Canada (Human Rights Commission) v. Warman, 2011 FCA 297 at para. 44).
(Berberi, at paras. 21-22)
[55] The Panel agrees with the above reasoning outlined in Berberi on the retention of jurisdiction over remedial orders to ensure that they are effectively implemented and has adopted and followed this approach from the Merit Decision and onward.
[56] Additionally, the Tribunal used a similar approach to remedies in Grant v. Manitoba Telecom Services Inc., 2013 CHRT 35 [Grant] once the decision on the merits was rendered:
[3] The Tribunal retained jurisdiction on many of the remedies requested by the Complainant, including the missed pension contributions, in order to get further submissions and clarification from the parties.
[4] Both parties were given the opportunity to provide additional submissions on the Complainant’s outstanding remedial requests from Grant (decision) on a conference call on July 10, 2012.
(Grant at paras. 3-4, emphasis ours).
[7] In Grant (remedies), the Tribunal again retained jurisdiction in the event the parties were unable to reach an agreement on the pension remedy, among others.
[8] The parties have been unable to work out the details of the Complainant’s lost pension and disagree on what remedy the Tribunal ordered with respect thereof.
(Grant, 2013 CHRT 35 at paras 7-8, emphasis ours).
[57] The Tribunal in Grant provided further direction on the remedy in that subsequent ruling. Of interest, this case was challenged at the Federal Court after the dec