Digests

Canada (Attorney General) v. Stevenson

T-9-02

2003 FCT 341, Rouleau J.

24/3/03

20 pp.

Remedies--Judicial review of decision of Canadian Human Rights Tribunal (Tribunal) finding respondent's rights under Canadian Human Rights Act (Act) contravened by applicant and ordering applicant to take various remedial measures-- Respondent submitted complaint to Canadian Human Rights Commission (Commission) alleging discrimination by former employer, Canadian Security Intelligence Service (CSIS), for terminating employment because of mental disability-- Commission upheld respondent's complaint and matter referred to Tribunal--Tribunal rejected position taken by CSIS and found CSIS had contravened respondent's rights under Act--Tribunal ordering CSIS to pay respondent $2000 for out-of-pocket expenses incurred for legal costs and ordering Director of CSIS to provide respondent with letter of apology--Whether Tribunal exceeded jurisdiction in ordering these remedies--(1) S. 53(2) and (3) of Act establish several broad remedies available to Tribunal if concluding complaint substantiated, including ordering payment of compensation "for any expenses incurred by the victim as a result of the discriminatory practice"--Inconsistency in case law on issue of whether Act empowering Tribunal to order compensation for legal expenses noted--In Canada (Attorney General) v. Thwaites, [1994] 3 F.C. 38 (T.D.), Gibson J. confronted with issue of whether Tribunal erred in law in awarding reasonable costs for counsel and costs for actuarial services retained by complainant--Gibson J. examined s. 53(2)(c) and found no reason to restrict ordinary meaning of expression "any expenses incurred"--Reasoning in Thwaites applied-- Language of s. 53(2)(c) broad enough to encompass power to make award of legal costs--Interpretation supported by s. 50(1) of Act stating complainant, as party before Tribunal, must be given "full and ample opportunity, in person or through counsel to appear at the inquiry, present evidence and make representations"--Thus, Parliament clearly intended complainant be given opportunity to retain services of counsel in order to obtain some direction and advice--No reason to restrict ordinary meaning of expression "any expenses incurred by the victim as a result of the discriminatory practice" such as to exclude "expenses of litigation, prosecution, or other legal transaction"--That words "legal costs" or "costs of counsel" not expressly mentioned in either paragraphs 53(2)(c) or (d) not supporting argument "expenses incurred as a result of the discriminatory practice" excludes "legal expenses" incurred by complainant in bringing complaint for discrimination--In case such as this where complainant consults lawyer as to well-foundedness of complaint, expense of that nature justifiable--Accordingly, Tribunal not exceeding jurisdiction in awarding compensation for legal costs incurred--(2) No legislative provision in Act bestowing jurisdiction on Tribunal to extract coerced apology from individuals or institutions--By attempting to coerce Director of CSIS to write letter of apology in form approved by Commission, Tribunal effectively forcing Director to utter misleading, untrue opinion--Neither s. 53(2), s. 53(3) nor Act as whole can be interpreted in such manner as to empower Tribunal to make such orders--That Tribunal must necessarily have power to impose remedies similar to ones listed in s. 53(2) to rectify and remedy effects of systemic discrimination not meaning Tribunal empowered to punish employer by purporting to provide "meaningful remedy" to victims of discrimination--Tribunal creature of statute and not superior court of inherent jurisdiction--Consequently, authority to order letters of apology be provided to successful complainant must be expressly provided for in Act or must be derived by necessary implication--Rather astonishing if such inherent jurisdiction, which may possibly be lacking in Federal Court or superior court, were to exist in other instances subject to supervisory powers of court--Tribunal had no jurisdiction to order Director of CSIS to issue letter of apology to respondent --Application allowed in part--Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 50 (as am. by S.C. 1998, c. 9, s. 27), 53 (as am. idem).