Canadian Human Rights Commission v. Canada (Attorney General)

Canadian Human Rights Commission v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2010-11-12
Neutral citation
2010 FC 1135
File numbers
T-1016-09
Notes
Digest
Decision Content
Federal Court
Cour fédérale
Date: 20101112
Dockets: T-1016-09, T-1025-09
Citation: 2010 FC 1135
Ottawa, Ontario, November 12, 2010
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
T-1016-09
CANADIAN HUMAN RIGHTS COMMISSION
Applicant
and
ATTORNEY GENERAL OF CANADA
(REPRESENTING SOCIAL DEVELOPMENT CANADA,
TREASURY BOARD OF CANADA, AND PUBLIC SERVICE
HUMAN RESOURCES MANAGEMENT AGENCY OF CANADA),
AND RUTH WALDEN ET AL.
Respondents
AND BETWEEN:
T-1025-09
RUTH WALDEN et al.
Applicants
and
ATTORNEY GENERAL OF CANADA,
CANADIAN HUMAN RIGHTS COMMISSION,
ANN BOYLAN CURRIE LOUISE DUNCAN,
CHARLENE DYKSTRA, DZIDRA GOOR (Deceased), CARRIE GRONAU,
JEAN HALPENNY, MARLENE HARRISON, MARY LOU KIGHTLEY, SUZANNE MATAIS, MARGARET MEESTER, ANNE NOLET, SUSAN PETTERSONE, JAMES (JIM) ROBERTS, ANDREA TAYLOR, MICHELLE WATSON, ANNETTE WETHERLY
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] These two applications for judicial review are of a decision dated May 25, 2009, of the Canadian Human Rights Tribunal (the Tribunal) regarding the appropriate remedies under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act) payable to a group of approximately 413[1] medical adjudicators in the Canada Pension Plan (CPP) Disability Benefits Program. The medical adjudicators are a group of predominantly female nurses who work with medical advisors, a group of predominantly male doctors, to determine eligibility for CPP disability benefits.
[2] The Tribunal had concluded in an earlier decision dated December 13, 2007, which was upheld by the Federal Court on judicial review per Justice Mactavish on May 4, 2010, that the 413 medical adjudicators (the Complainants) had been discriminated against with respect to their job classification on the basis of their gender, contrary to sections 7 and 10 of the Act.
[3] In the decision under review, the Tribunal concluded that despite the discrimination suffered by the 413 medical adjudicators, the Complainants had failed to prove lost wages on the balance of probabilities or to provide evidence of pain and suffering among the majority of the complainants.
Accordingly, the Tribunal denied compensation for lost wages as a result of the discrimination and awarded pain and suffering to only two of the 413 complainants.
[4] The Tribunal also made an award of legal costs which is the subject of a separate application for judicial review by the Attorney General of Canada. That application has been stayed by Prothonotary Aronovitch on the consent of the parties pending the outcome of a relevant case at the Supreme Court of Canada, an appeal from Canada (Attorney General) v. Mowat, 2009 FCA 309 (leave to appeal to SCC granted, April 22, 2010).
[5] The applications forming the basis of this judicial review are an application by the Complainants and a separate application by the Canadian Human Rights Commission (the Commission), which were consolidated (together with the third application by the Government that has since been stayed) by an order dated December 17, 2009, rendered by Prothonotary Aronovitch. Before this Court, both the Commission and the Complainants have advocated essentially the same position.
FACTS
Prior Proceedings
[6] The Tribunal’s decision on the remedies at issue here follows a previous relevant decision on liability, an interim ruling by the Tribunal, and a Judgment by this Court.
1) On December 13, 2007, in Walden v. Canada (Social Development), 2007 CHRT 56 (the Tribunal’s Liability Decision), the Tribunal found that Social Development Canada, the Treasury Board of Canada, and the Public Service
Human Resources Management Agency (together, the Government) had discriminated against the Complainants on the basis of their gender, contrary to sections 7 and 10 of the Act. The Tribunal reserved the issue of remedies to be determined at another date.
2) On June 6, 2008, in Walden v. Canada (Social Development), 2008 CHRT 21 (the Tribunal’s Interim Ruling), the Tribunal issued an interim ruling on a motion by the Attorney General of Canada, which permitted the parties to adduce evidence with regard to proposals for redressing the discriminatory practice and with regard to the quanta of wage loss and of pain and suffering suffered by the Complainants.
3) On May 4, 2010, in Canada (Attorney General) v. Walden, 2010 FC 490, the Tribunal’s Liability Decision was upheld on judicial review by a Judgment of this Court per Justice Mactavish.
[7] Before discussing the merits of this application, the Court will describe the Tribunal’s Liability Decision and the Judgment of Justice Mactavish on judicial review of that decision.
The Tribunal’s Liability Decision
[8] The Tribunal’s Liability Decision found that the Complainants had been discriminated against on the basis of their gender contrary to sections 7 and 10 of the Act. Section 7 of the Act states:
7. It is a discriminatory practice, directly or indirectly,
. . .
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
7. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens
directs ou indirects :
. . .
b) de le défavoriser en cours d’emploi.
[9] Section 10 of the Act provides:
10. It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
10. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite et s’il est susceptible d’annihiler les chances d’emploi ou d’avancement d’un individu ou d’une catégorie d’individus, le fait, pour l’employeur, l’association patronale ou l’organisation syndicale :
a) de fixer ou d’appliquer des lignes de conduite;
b) de conclure des ententes touchant le recrutement, les mises en rapport, l’engagement, les promotions, la formation, l’apprentissage, les mutations ou tout autre aspect d’un emploi présent ou éventuel.
[10] The Complainants are a group of registered nurses who work as “medical adjudicators” in the Canada Pension Plan Disability Benefits Program. “Medical adjudicators” are classified in the Public Service of Canada’s classification system as “program administrators” within the Program and Administrative Services Group.
[11] The Complainants submitted that their work was the same as the work performed by “medical advisors” in the Canada Pension Plan Disability Benefits Program. The Tribunal was
satisfied that, although there are some differences in responsibilities, the work of the two groups is substantially similar. The Tribunal held at para. 11 of the Tribunal’s Liability Decision as follows:
¶ 11. However, the differences are not significant enough to explain the wide disparity in treatment and, more particularly, they do not explain why the advisors are recognized as health professionals and the adjudicators are not. The core function of both positions is applying professional knowledge to determine eligibility for CPP disability benefits. . . .
[12] “Medical advisors,” however, are classified as “health professionals” within the Health Services Group of the Public Service of Canada’s classification scheme. Whereas medical adjudicators are registered nurses, medical advisors are medical doctors. The evidence established that 95% of medical adjudicators are women, while 80% of medical advisors are men.
[13] Because the core of the work performed by the two groups is substantially the same – the application of their medical knowledge to determinations of eligibility for CPP disability benefits – the Tribunal found that the difference in classification between the two positions results in discrimination contrary to sections 7 and 10 of the Act. Under both sections, the relevant comparison was between medical adjudicators and medical advisors. The Tribunal found discriminatory treatment with regard to (1) the lack of professional recognition given to medical adjudicators as health professionals; (2) the lower salary and benefits paid to medical adjudicators; (3) the failure to pay for professional fees and educational training opportunities for medical adjudicators; and (4) the denial to medical adjudicators of career advancement opportunities that require health services experience.
[14] Having made the finding of discriminatory treatment contrary to the Act, the Tribunal ordered, pursuant to section 53(2)(a) of the Act, that the discriminatory practice cease. The Tribunal refrained, however, from specifying the measures that should be taken to redress the discriminatory practice, in order to allow the parties to negotiate on that matter. The Tribunal retained jurisdiction over that question and determined that if the parties failed to reach a resolution they could return to the Tribunal to present evidence and argument, if necessary, on it.
[15] In particular, the Tribunal reserved jurisdiction in three areas:
1) the measures to be taken pursuant to section 53(2)(a) to redress the discriminatory practice;
2) relief under section 53(2)(c) of the Act for compensation to victims for past wages lost as a result of the discriminatory practice; and
3) the determination of the quantum of compensation for pain and suffering under section 53(2)(e) of the Act.
[16] The Tribunal found that the discrimination was unintended and refused to award damages against the Government under section 53(3) of the Act, which provides for damages where the Government has engaged wilfully or recklessly in the discriminatory practice.
The Court’s Judgment on Judicial Review of the Tribunal’s Liability Decision
[17] On May 4, 2010, this Court dismissed the Government’s application for judicial review of the Tribunal’s Liability Decision. Justice Mactavish upheld the Tribunal’s choice of medical
advisors as the appropriate comparator group vis-à-vis the medical adjudicators. In her Judgment at paras. 83-85, Justice Mactavish held as follows:
¶83. I do not agree with the Government that the fact that there may be differences in some of the day-to-day duties and responsibilities of Medical Advisors and Medical Adjudicators necessarily means that Medical Advisors cannot be the appropriate comparator group for the purposes of the Tribunal’s discrimination analysis.
¶84. The evidence before the Tribunal was that positions are allocated to an Occupational Group having regard to the primary function of the position in question. According to Ms. Power, positions within the Health Services Group involve the application of a comprehensive knowledge of professional specialties in the fields of medicine or nursing to the safety and physical and mental well-being of people. As a result, an examination of the fundamental nature or primary or “core” function of the work performed by Medical Adjudicators and Medical Advisors was appropriate.
¶85. It was open to the Government to adduce evidence before the Tribunal as to the differences between the work performed by Medical Adjudicators and that carried out by Medical Advisors, as it in fact did. Evidence of this nature could, if accepted by the Tribunal, potentially provide a reasonable and non-discriminatory explanation for the differences in treatment between the two groups. It does not, however, mean that Medical Advisors could not be the appropriate comparator group for the purposes of the Tribunal’s discrimination analysis.
[18] Although Justice Mactavish recognized that statistical evidence of professional occupational segregation (as, for example, in this case, where the evidence demonstrated that the vast majority of registered nurses are women) is not sufficient to establish a prima facie case of discrimination under either sections 7 or 10 of the Act, Justice Mactavish affirmed the value of statistical evidence in uncovering adverse discrimination. In this case, Justice Mactavish found that there was considerable additional evidence relied upon by the Tribunal in finding the employment classification practice discriminatory, including “considerable evidence put before the Tribunal by
the complainants with respect to the similarities in the nature of the work performed by Medical Adjudicators and Medical Advisors”: Judicial Review at para. 118.
[19] The Court also recognized that the Government had not challenged the Tribunal’s finding that the “core function” performed by both groups was the same, that one group was recognized as health professionals while the other was not, that the benefits and remuneration received by one are far superior to the other, and that all of this evidence was used by the Tribunal in finding that the classification practice was discriminatory. The Court provided a useful description of the discriminatory practice at paras. 146-147:
¶146. Medical Adjudicators are classified as Program Managers/Program Administrators, a classification that does not recognize their status as registered nurses. This results in Medical Adjudicators receiving less in the way of pay and benefits than that received by other nurses working for the federal government, and also gives them less in the way of professional development opportunities. Indeed, the evidence before the Tribunal indicated that Medical Adjudicators earn between $10,000 and $13,000 less than clinical nurses employed by the Government, and approximately half of what Medical Advisors are paid. The classification of Medical Adjudicators as Program Managers/Program Administrators also means that they are denied employment benefits that are available to Medical Advisors.
¶147. According to the evidence before the Tribunal positions are categorized within Occupational Groups having regard to the primary function of the position, rather than the professional qualifications of the incumbents. The Health Services Group is comprised of positions that are primarily involved in the application of a comprehensive knowledge of professional specialties in the fields of medicine and nursing (among others) to the safety and physical and mental well-being of people. Neither Medical Advisors nor Medical Adjudicators provide care directly to patients. Nevertheless, Medical Advisors are included within the Health
Services Group and Medical Adjudicators are not.
[20] Justice Mactavish held that the discriminatory classification of the medical adjudicators as program managers, rather than as nurses, resulted in the medical adjudicators receiving less pay and benefits than they would otherwise have received. Justice Mactavish held at paragraph 146 of her Judgment that:
1. Medical Adjudicators earn between $10,000 and $13,000 less than clinical nurses employed by the Government, and approximately half of what Medical Advisors are paid; and
2. The classification of Medical Adjudicators as Program Managers …. also means that they are denied employment benefits that are available to Medical Advisors.
[21] In my view, Justice Mactavish implicitly found that the Medical Adjudicators had suffered loss of income and benefits as a result of the discriminatory practice.
[22] The Court upheld the Tribunal’s finding that despite certain differences in their jobs the work performed by medical advisors and medical adjudicators was similar enough that the differences could not explain the wide disparity in treatment between them, and that this properly fell under the ambit of sections 7 and 10, as opposed to section 11, of the Act. The crux of the issue was not disproportionate salaries between the two groups but, rather, discriminatory treatment more broadly that resulted from the medical adjudicators not receiving recognition for their work as health professionals. At paras. 153-155 Justice Mactavish explained that it was reasonable for the Tribunal to find that the positions of medical adjudicators and medical advisors are different, while still finding that the classification practice was discriminatory:
¶ 153. Nor is there any inconsistency between the Tribunal’s finding that the essential nature and character of the work performed by both groups was the same, and its finding that the differences in the responsibilities and duties of the two groups could nonetheless justify some of the differences in salary and benefits, and could also explain why Medical Advisor and Medical Adjudicator positions
might occupy different levels within a classification standard within the Health Services Group.
¶ 154 That is, the Tribunal found that the fact that Medical Advisors may fulfill an oversight and advisory role could potentially justify a higher level of pay and benefits than that accorded to Medical Adjudicators. This does not, however, take away from the Tribunal’s finding that the essential nature and character of the work performed by both groups was the same.
¶ 155. Nor do the differences in the day-to-day responsibilities and duties of each group explain why it is that, to quote Ms. Walden’s human rights complaint, “… when a CPP doctor makes a determination of disability, he is practicing medicine, but when a CPP nurse makes a determination of disability, she is delivering a program”.
[23] Thus, the Court noted at para. 163 that the Tribunal was not imposing an obligation to pay proportionate compensation for proportionate work, but rather was concerned with the “denial of professional recognition through the classification process for positions performing the same “core function” (and many of the same duties). . . .” The Court recognized, however, that the issue of classification would necessarily be closely related to the issue of compensation:
¶ 164. It is true that pay levels within the Federal Public Service are largely determined by the classification of positions within an Occupational Group and sub-group, and by the level of positions within the relevant sub-group. As the Government conceded in the hearing before me, the issues of compensation and classification are closely intertwined and it is difficult to disengage one from the other.
[24] Finally, the Court upheld the Tribunal’s decision to consider the Government’s potential liability for the discriminatory practice beginning from the coming into force of the Act in March of 1978. The Court recognized that the one-year limitation period in section 41(1)(e) of the Act is not absolute, and that in this case the Commission used its discretionary power to accept allegations of
discriminatory practices occurring more than one year prior to the filing of the complaint. That being said, the Court recognized that the Tribunal had retained jurisdiction to consider the Government’s arguments regarding why it should not be liable for paying lost wages back to 1978, including its lack of knowledge regarding the discrimination, in determining the appropriate remedy.
The Tribunal’s Remedies Decision under review
[25] On May 25, 2009, the Tribunal issued its decision on the remedies for the discriminatory practice found in the Tribunal’s Liability Decision. It is this Remedies Decision that is the subject of these judicial review applications.
[26] In the Remedies Decision, the Tribunal looked at four issues:
(1) the appropriate manner to redress the discriminatory practice through a proper classification;
(2) an award of compensation for lost wages;
(3) an award of compensation for pain and suffering; and
(4) legal expenses.
The second and third issues have been raised by the parties before this Court. As noted above, judicial review of the question of an award of legal costs has been stayed pending the outcome of an appeal before the Supreme Court of Canada of the Federal Court of Appeal’s decision, Mowat, supra. The Tribunal’s determination of the first issue, the appropriate manner to redress the discriminatory practice through a proper classification, was not challenged by the parties.
[27] With regard to the first issue, the appropriate manner to redress the discriminatory practice, the Tribunal conducted a detailed review of possible classification schemes suggested by the
parties. The Tribunal noted that the Complainants ultimately were ambivalent with regard to the means of redressing the discriminatory practice. Historically medical adjudicators had sought to be classified in the same Occupational Group as medical advisors - namely, in the Health Services Group - but under a different Classification – namely, in the Nursing Classification as opposed to the Medicine Classification. Before the Tribunal, however, the Complainants originally advocated the creation of a new Classification to encompass both medical advisors and medical adjudicators. By the time of the Remedies Decision, the Complainants had returned to advocating for classification in an existing subgroup within the Nursing Classification within the Health Services Group, because they felt that it would avoid delays and administrative inefficiencies that would likely arise should an entirely new Classification need to be developed. In contrast to the Complainants, the Commission consistently submitted that the only appropriate redress would be the creation of a new Classification or Occupational Group for both medical advisors and medical adjudicators. The Commission maintained that because the public service classifies positions on the basis of the primary function of the position as opposed to based on the qualifications of the person holding the job, once it is accepted that the primary function of medical adjudicators and medical advisors is the same they should be classified the same, regardless of their different qualifications as nurses and doctors.
[28] At the hearing for the Remedies Decision, the Government proposed classifying medical adjudicators under a new subgroup within the Nursing Classification of the Health Services Group. The Government submitted that there were three advantages to this manner of redress. First, it would address the concerns regarding discriminatory classification that had been found in the Tribunal’s Liability Decision. In particular, it would
1) give medical adjudicators professional recognition as members of the Health Services Occupational Group, who apply their nursing knowledge to their work;
2) likely give them the same bargaining agent as used by all other specialties, including medical advisors, within the Health Services Group, and thereby put them in a position to bargain for compensation commensurate with their classification as nurses;
3) provide a separate line item in the budget for the payment of licensing fees, like medical advisors;
4) recognize training and career development in the same way as it is recognized in for other health professionals.
[29] Second, the Government submitted that the new subgroup would avoid creating a new classification standard, which takes considerable time and extensive consultation. In contrast, a new subgroup could be created “almost immediately.”
[30] Finally, the Government explained creating a new subgroup was preferable because it would not affect the medical advisors’ classification within the Medicine Classification.
[31] In contrast, the Government submitted that the Commission’s proposal of a new classification group would
1) not necessarily result in any different compensation, because there would remain the differences between the positions of medical advisors and medical adjudicators for which the classification would need to account;
2) delay the re-classification; and
3) interfere with the Government’s carefully-crafted classification practices with regard to recruitment and retention of medical doctors.
[32] The Tribunal reviewed each of these proposals and ultimately determined that the Government’s proposed method of reclassification would best redress the discriminatory practice. The Tribunal held as follows, at para. 60:
¶60. For these reasons and based on the evidence that was presented to me I find, on a balance of probabilities, that the most appropriate way to redress the discriminatory practice identified in the Tribunal's December 2007 decision is to create a new Nursing subgroup for the medical adjudication position(s). I order that such a subgroup be created and that the adjudicator work be placed in this subgroup. I further order that work on the creation of the new NU subgroup commence within 60 days of the date of this decision.
[33] With regard to the second issue, compensation for wage loss, the Tribunal built upon its finding that the appropriate manner of redress was to create a new subgroup within the Nursing Classification. Having found that a new subgroup would effectively redress the discriminatory practice, the Tribunal stated that it was difficult to determine the amount of lost wages because no such group had previously existed:
¶63 . . . The problem, of course, is that the Nursing subgroup did not exist in the past. Therefore, it is difficult to determine if there was any wage loss when there is no past salary line for that subgroup to compare with the adjudicators' past compensation. One way of dealing with this problem is to determine the value of the adjudicator position relative to the value of other positions performing similar work. A comparison would then be made between the adjudicators' past remuneration and the past remuneration of positions that are of comparable value.
The evidence for this comparison was submitted pursuant to the Interim Ruling, which allowed the parties to make submissions and call evidence regarding the value of work performed by the adjudicators relative to that performed by other subgroups within the Nursing Classification, or the medical advisors.
[34] The Tribunal found that the Complainants had the burden of satisfying the Tribunal regarding the amount of compensation owed for wage loss on the balance of probabilities. The Tribunal noted at para. 72 that “it is well settled law that once it is known that a plaintiff has suffered a loss, a court cannot refuse to make an award simply because the proof of the precise amount of the loss is difficult or impossible.”
[35] The Tribunal reviewed the evidence submitted by the parties. The Complainants had submitted a report by Mr. Scott MacCrimmon, a consultant with decades of experience in conducting job evaluation, classification and compensation system reviews. Mr. MacCrimmon’s report compared the positions of medical adjudicator and medical advisor based upon their job descriptions and the findings in the Tribunal’s Liability Decision and the Interim Ruling. Based on this information, Mr. MacCrimmon found that the only difference in value of the two positions arose from the additional decision-making role and educational requirements of the medical advisor position. He concluded that jobs that differed in these ways would typically be approximately one or two “pay grades” apart, which would translate into a salary differential of between 15 and 25 per cent.
[36] The Tribunal also heard the evidence of Ms. Mary Daly, a Government witness, who was accepted as an expert in classification, compensation and organizational design. Ms. Daly stated that the industry standard for conducting job evaluations requires interviewing managers and employees to understand their work, and comparing jobs within particular work classification groups. Based upon Ms. Daly’s critiques, the Tribunal concluded that Mr. MacCrimmon’s report was unreliable:
¶136 . . . Without additional job information than what was provided to Mr. MacCrimmon and with only two jobs being compared using a generic job evaluation tool, the Tribunal is simply not getting a reasonably reliable estimate of the relative value of the relevant positions.
¶ 137 Moreover, Mr. MacCrimmon did not provide the Tribunal with sufficient information as to how he used the data from the Tribunal decisions and the job descriptions to arrive at his conclusions.
. . .
¶142 I am persuaded by the logic and detailed explanation provided by Ms. Daly as to why it is inappropriate to make a generalized assumption about the point banding structure and the corresponding salary structure. Each organization has its own approach to point banding. Therefore, it is inappropriate to use generalities on the job evaluation landscape to arrive at a relatively precise conclusion.
¶143 Mr. MacCrimmon was not able to provide any assurances that his conclusion was based on an understanding of the public service's point banding and salary structures.
. . .
¶ 146 On the basis of the evidence, I find that the Complainants have not established, on a balance of probabilities, that Mr. MacCrimmon's assessment of the wage differential was reasonably accurate. It was speculative and based on job evaluation results that were not reasonably accurate.
[37] The Government’s own report on wage comparisons was withdrawn as evidence. As a result, the only evidence that the Tribunal had on the wage differentials was that of Mr. MacCrimmon, which the Tribunal rejected. The Tribunal also rejected the Commission’s request to permit another job evaluation report to be concluded. The Tribunal concluded that the Complainants had failed to show any wage loss, and, therefore, received no compensation under this head.
[38] With regard to the third issue, compensation for pain and suffering, the Tribunal accepted the Government’s argument that based upon Public Service Alliance of Canada v. Canada (Treasury Board), [1998] C.H.R.D. No. 6, (aff'd: Canada (Attorney General) v. Public Service Alliance of Canada [2000] 1 F.C. 146, 180 D.L.R. (4th) 95 (F.C.), the Tribunal could not order compensation for any individuals who had not themselves provided evidence on the question to the Tribunal:
¶160 I agree with the Tribunal's reasoning in PSAC v. Treasury Board. The evidence that I heard from some of the Complainants convinced me that some, but not all of the Complainants, should be compensated for the pain and suffering they experienced. Ms. Walden testified generally that the adjudicators felt angry, demoralized and humiliated as a result of the discriminatory practice. However, I am not able to say, on the basis of these statements, that each and every adjudicator experienced the same degree of pain and suffering, or indeed any suffering at all. I cannot attribute Ms. Walden's statements to each and every complainant.
Four complainants provided evidence regarding their pain and suffering to the Tribunal. The Tribunal awarded compensation for pain and suffering to two individuals.
[39] As mentioned above, the Tribunal also made a cost award, which is the subject of a separate application for judicial review.
ISSUES
[40] In this application, the arguments made by the parties raise the following five legal issues:
1) Did the Tribunal err in its consideration of the question of compensation for lost wages because it made determinations over which it was functus officio?
2) Did the Tribunal err in its consideration of the question of compensation for lost wages because it imposed an incorrect standard of proof upon the Complainants?
3) Did the Tribunal err in its consideration of the evidence of lost wages and other compensation that was before it?
4) Did the Tribunal breach natural justice by dissuading the Complainants from adducing evidence regarding individual Claimant’s pain and suffering and then finding against the Complainants on that basis?
5) Did the Tribunal err by improperly assessing the evidence regarding the Complainants’ damages for pain and suffering?
[41] Upon considering the facts and the law in this case, the court only needs to consider issues Nos. 2 and 4 to resolve these applications.
RELEVANT LEGISLATION
[42] Section 53(2) of the Act establishes the remedies that a Tribunal may order if it finds a complaint to be substantiated:
53(2). If at the conclusion of the inquiry the member or panel
finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing a plan under section 17;
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim 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;
(d) that the person compensate the victim 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; and
(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.
53(2). À l’issue de l’instruction, le membre instructeur qui juge
la plainte fondée, peut, sous réserve de l’article 54, ordonner, selon les circonstances, à la personne trouvée coupable d’un acte discriminatoire :
a) de mettre fin à l’acte et de prendre, en consultation avec la Commission relativement à leurs objectifs généraux, des mesures de redressement ou des mesures destinées à prévenir des actes semblables, notamment :
(i) d’adopter un programme, un plan ou un arrangement visés au paragraphe 16(1),
(ii) de présenter une demande d’approbation et de mettre en oeuvre un programme prévus à l’article 17;
b) d’accorder à la victime, dès que les circonstances le permettent, les droits, chances ou avantages dont l’acte l’a privée;
c) d’indemniser la victime de la totalité, ou de la fraction des pertes de salaire et des dépenses entraînées par l’acte;
d) d’indemniser la victime de la totalité, ou de la fraction des frais supplémentaires occasionnés par le recours à d’autres biens, services, installations ou moyens d’hébergement, et des dépenses entraînées par l’acte;
e) d’indemniser jusqu’à concurrence de 20 000 $ la victime qui a souffert un
préjudice moral.
STANDARD OF REVIEW
[43] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], the Supreme Court held that there are now only two standards of review: correctness and reasonableness. At paragraph 62 of that decision, the Supreme Court stated there are two steps to determining the appropriate standard of review to apply:
First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper
standard of review.
[44] The standard to be applied when reviewing decisions of the Canadian Human Rights Tribunal will depend upon the nature of the question at issue. As the Federal Court of Appeal stated recently in Royal Canadian Mounted Police v. Tahmourpour, 2010 FCA 192, at para. 8, the standard will most often be reasonableness:
Most elements of a decision of the Tribunal are reviewed on the standard of reasonableness, including questions of law involving the Tribunal's interpretation of its own statute or questions of general law with respect to which the Tribunal has developed a particular expertise (see Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 (S.C.C.), Chopra v. Canada (Attorney General) (2007), [2008] 2 F.C.R. 393, 2007 FCA 268 (F.C.A.), and Brown v. Canada (National Capital Commission), 2009 FCA 273 (F.C.A.)).
[45] That being said, when the question at issue is a question of law that does not involve an interpretation of the Tribunal’s own statute or an area of law within which the Tribunal has developed a particular expertise, the proper standard of review is correctness. As the Federal Court of Appeal recognized in Mowat, supra, at para. 50, after conducting an extensive analysis of the case law applicable to the question of the appropriate standard of review to apply to decisions of the Tribunal:
¶ 50. There is binding authority to the effect that different standards of review can apply to different legal questions depending on the nature of the question and the relative expertise of the tribunal in those particular matters: Deputy Minister of National Revenue v. Mattel Canada Inc., [2001] 2 S.C.R. 100 (S.C.C.) (Mattel) (para. 27); VIA Rail Canada Inc. v. Canadian Transportation Agency, [2007] 1 S.C.R. 650 (S.C.C.) (VIA Rail) (para. 278).
[46] In Mowat itself, the Federal Court Appeal was dealing with the question of whether the Tribunal had the authority to award legal costs. At para. 51, the Court determined that the appropriate standard of review to apply to that question was one of correctness:
¶ 51. Having regard to the purpose of the Tribunal, the nature of the question and the expertise of the Tribunal, the applicable standard of review is correctness. It follows that the application judge erred in concluding that the standard of review is reasonableness.
[47] With respect to the second issue, the correct standard of review for the onus of proof for damages is a question of law and the standard of review is correctness.
[48] The fourth issue deals with an alleged breach of natural justice and this is a question of law subject to the correctness standard of review.
ANALYSIS
[49] Before dealing with the two issues the Court has two preliminary observations. The first observation is that the Tribunal’s Remedies Decision held that the most appropriate way to address the discriminary practice against the medical adjudicators is for the government to create a new Nursing subgroup in the Health Services Occupational Group for the medical adjudicators. This part of the Tribunal’s Remedies Decision was not challenged by any of the parties.
[50] The second observation is that the Tribunal’s Liability Decision, and the Federal Court Judgment of Justice Mactavish upholding the Tribunal’s Liability Decision, held that the discriminatory classification of the medical adjudicators as Program Managers resulted in the medical adjudicators receiving less pay fewer professional development opportunities and fewer employment benefits than available to nurses and doctors classified within the Health Services Occupational Group. Accordingly, there can be no dispute that the medical adjudicators did suffer a loss of income and benefits due to the discriminatory job classification. Accordingly, the issue for the Tribunal regarding appropriate remedies was the quantification of the loss of wages and benefits. (See also Justice Mactavish’s Judgment at paragraph 146 confirming loss of income due to the discriminatory practice.)
[51] The parties spent a considerable amount of time in their submissions to this Court disputing the nature of the Tribunal’s finding regarding the discriminatory