HUMAN RIGHTS |
Canada (Human Rights Commission) v. Canada (Attorney General)
T-590-00
2001 FCT 1399, Nadon J.
18/12/01
34 pp.
Application for judicial review of CHRT decision awarding respondent compensation for lost wages in sum of $15,770--Commission raising issue of whether CHRT correctly held proper compensation period May 27, 1992 to September 2, 1992--Attorney General challenging CHRT's calculation of compensation, as well as award of interest-- Respondent joined Canadian Armed Forces in 1960--In 1968, signed certificate of election in which elected to have retirement age determined in accordance with Queen's Regulations and Order for the Canadian Forces (QR&O), s. 15.31 (age of 50)--Respondent released from CAF on May 27, 1992, having reached compulsory retirement age-- Received severance pay, began receiving pension under Canadian Forces Superannuation Act--In August 1992, CHRT ruled QR&O, s. 15.31 discriminatory (Martin et al. v. Canadian Armed Forces (1992), 17 C.H.R.R. D/435 (C.H.R.T.), decision affirmed in F.C.T.D ([1994] 2 F.C. 524) and F.C.A. ((1997), 146 D.L.R. (4th) 380)--Respondent thereupon filed complaint against CAF alleging discrimination on ground of age--Commission's application dismissed; Attorney General's application allowed--(1) Compensation period--Clear from Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401 (C.A.) compensation period would vary depending on circumstances of case and determination of appropriate compensation period required careful analysis of circumstances--Causal connection necessary between discriminatory act and compensation--Compensation period established by CHRT did not constitute retroactive application of QR&O; issue herein not respondent's right to obtain compensation but extent of compensation respondent entitled to for lost wages in view of all circumstances of case--After amendment to QR&O on September 3, 1992, no longer causal link between discriminatory practice and respondent's lost wages since discriminatory practice had ended--Therefore, no compensation required after September 2, 1992--CHRT entitled, in assessment of respondent's lost wages, to consider fact amendment allowed CAF to release respondent as of September 3, 1992, as had reached compulsory retirement age--Purpose of compensation to put victim of discrimination in position would have been in had discriminatory practice not occurred--No reason for compensation for wages after September 2, 1992--(2) Pension income and severance pay--Pension payments do not fall within "insurance exception" and, as result, should be taken into account in calculation of loss of earnings--Tribunal's failure to deduct pension income leaves respondent in better position than would have been in had he remained in CAF until September 2, 1992, since he has received wages and pension income for same period of time, i.e. May 27 to September 2, 1992--Pension payments received by respondent cannot be assimilated to benefits in nature of proceeds of insurance-- CHRT erred in concluding pension income received by respondent not to be considered in calculation of lost wages--(3) Interest--CHRT erred in holding interest on compensation award should be paid as of May 27, 1992--Interest should run as of September 2, 1992.