Canada ( Attorney General ) v. Lambie
T-2250-95
Nadon J.
23/12/96
20 pp.
Application to set aside Canadian Human Rights Review Tribunal decision allowing respondents' appeal from decision of CHRT dismissing respondents' complaint of discrimination-Complaint alleged Canadian Armed Forces refused to appoint respondent, by reason of marital status, as Commander of CFB Greenwood in Nova Scotia-Application allowed-Respondent then in process of divorce and intended to marry then common law wife-First Tribunal concluded respondent's marital status had not been factor in appointment-Review Tribunal concluded, on facts of case, First Tribunal erred in holding respondent not rejected on basis of marital status-Review Tribunal heard four additional witnesses, in effect conducting de novo hearing-Review Tribunal wrong in concluding First Tribunal had committed error by addressing wrong question (whether deliberate plan to cover up improper consideration of marital status on part of superior instead of whether reasonable inference from facts led one to conclusion respondent eliminated from process by reason of marital status)-First Tribunal did in fact consider question posed by Review Tribunal-More importantly, in effect, Review Tribunal has stated conclusion, in face of contradictory evidence and inconsistencies, without giving any substantial reasons for reaching particular conclusion and not another-Review Tribunal's decision set aside as disregarded any evidence which did not support its conclusion respondent had been discriminated against-As to remedy given by Review Tribunal: amending record to indicate respondent's promotion to rank of Colonel and financial compensation (retroactive payment of salary differential, pension benefit differential and all other benefits), leave and time spent to develop and prepare complaint-For calculation of damages, claimant must establish, on balance of probabilities, lost either job or possibility of job-On basis of Review Tribunal's conclusions, onus met-"Expense" in Act, s. 53(2)(d) not broad enough to cover time spent in preparation except in exceptional circumstances-Matter returned to newly constituted Review Tribunal to determine issues on record as stood before Review Tribunal-Will be open to new Tribunal to allow parties to adduce evidence from witnesses not previously called upon to testify before First Tribunal or Review Tribunal-Canadian Human Rights Act, R.S.C, 1985, c. H-6, s. 53(2)(d).