A-779-80
VIA Rail Canada Inc. (Applicant)
v.
Marilyn Butterill, David J. Foreman and I. Cyril
Wolfman (Respondents)
and
Canadian Human Rights Commission (Intervenant
in First Instance)
Court of Appeal, Thurlow C.J., Ryan J. and
MacKay D.J.—Toronto, October 14 and Decem-
ber 14, 1981.
Judicial review — Applications to review — Human rights
— Human Rights Tribunal found that VIA Rail had engaged
in discriminatory practice by refusing to hire respondents
because of eyesight deficiencies — Tribunal ordered VIA Rail
to offer respondents positions, provided that they met visual
standards — No order for compensation made — No finding
of loss of wages or suffering in respect of feelings or self-
respect — S. 41(2)(c) of Act provides for compensation for lost
wages and expenses incurred as result of discriminatory prac
tice — S. 41(3)(b) provides for compensation for suffering in
respect of feelings or self-respect — Commission appealed on
ground that respondents should have been awarded compensa
tion — S. 42.1(5) permits Review Tribunal to hear additional
evidence if in interests of justice to do so — Review Tribunal
admitted evidence of what had transpired after decision of
Human Rights Tribunal given with respect to pecuniary losses,
holding that it was essential in interests of justice given
unsatisfactory nature of evidence before initial Tribunal
Further evidence in support of claim for compensation admit
ted, subject to VIA's right of objection and right to lead
rebuttal evidence — VIA did not exercise right of objection —
Respondent Wolfman did not give evidence before Review
Tribunal — Tribunal held respondents entitled to compensa
tion for financial losses, and for suffering under s. 41(3)(b)
No amount fixed — Whether Review Tribunal erred in law in
permitting Commission to lead evidence concerning suffering
and loss of self-respect — Whether awarding damages to
respondents Butterill and Foreman prior to leading of rebuttal
evidence by VIA Rail constituted denial of natural justice
Whether Tribunal erred in awarding damages to Wolfman for
suffering and loss of self-respect when Wolfman did not give
evidence before Tribunal upon which to found such award —
Whether Tribunal erred in awarding damages when no evi
dence before Tribunal that respondents able to satisfy less
stringent eyesight requirement, a condition precedent to com
pensation — Decision set aside in so far as it concludes that
respondents entitled to compensation under s. 41(3)(b)
Failure to give VIA opportunity to adduce rebuttal evidence
prior to pronouncing judgment on issue of liability — Denial
of natural justice — Admission of new evidence essential in
interests of justice — Record supports finding of liability for
compensation under s. 41(3)(b) for Wolfman — Proof of
ability to pass eyesight examination not necessary to support
compensation claim — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 — Canadian Human Rights Act, S.C.
1976-77, c. 33, ss. 14(a), 41(2)(c),(3)(b), 42.1.
Application to review and set aside an interim decision of a
Review Tribunal on an appeal brought by the Canadian
Human Rights Commission from the decision of a Human
Rights Tribunal. The Human Rights Tribunal found that VIA
Rail had engaged in a discriminatory practice in refusing to
hire the respondents because of physical handicaps—eyesight
deficiencies—and that the standards set by VIA Rail for new
employees were not based on a bona fide occupational require
ment within the meaning of paragraph 14(a) of the Canadian
Human Rights Act. The Tribunal ordered VIA Rail to review
the visual standards and to offer the respondents positions,
provided that they met the visual standards in force for promo
tion and re-examination. Paragraph 41(2)(c) of the Act pro
vides that a Tribunal may order that a victim be compensated
for wages lost and expenses incurred as a result of the dis
criminatory practice. Paragraph 41(3)(b) provides that a Tri
bunal may order payment of compensation not exceeding five
thousand dollars to a victim of a discriminatory practice who
has suffered in respect of feelings or self-respect as a result of
the practice. The Tribunal made no order for compensation nor
was any finding expressed that any of the respondents had been
deprived of wages or incurred expenses or had suffered in
respect of feelings or self-respect. The Commission appealed
the Tribunal's decision on the ground that the respondents
should have been awarded compensation for lost wages and
suffering in respect of feelings and self-respect as a result of the
discriminatory practices. Subsection 42.1(5) provides that a
Review Tribunal may hear additional evidence if it is in the
interests of justice to do so. Accordingly, the Review Tribunal
held that, in light of the unsatisfactory nature of the evidence
submitted before the initial Tribunal, and in view of procedural
uncertainties in dealing with relatively new legislation, it was
essential in the interests of justice to admit evidence of what
had transpired after the decision of the Human Rights Tribunal
was given with respect to pecuniary losses. It also permitted the
introduction of further evidence in support of the claim for
compensation, subject to VIA's right of objection and right to
lead rebuttal evidence at a subsequent hearing of the Review
Tribunal. Counsel for VIA did not object to the questions put
to the witnesses, and cross-examined one of the two witnesses.
The third respondent, Wolfman, did not give evidence before
the Review Tribunal. The Tribunal held that the respondents
were entitled to compensation for financial losses, and to
additional compensation under paragraph 41(3)(b). However,
it did not fix an amount for any of the three respondents. The
applicant argues that (1) the Review Tribunal erred in law in
permitting the Commission to lead evidence concerning suffer
ing and loss of self-respect which was available to it prior to the
Board of Inquiry; (2) the awarding of damages to the respond
ents Butterill and Foreman, prior to the leading of rebuttal
evidence by VIA Rail constituted a denial of natural justice;
(3) there was no evidence before the Review Tribunal upon
which to found an award to respondent Wolfman for damages
for suffering and loss of self-respect; and (4) there was no
evidence before the Review Tribunal upon which to conclude
that the respondents, Butterill and Wolfman, were able to
satisfy the less stringent eyesight requirement, which was a
condition precedent to compensation.
Held, the decision is set aside in so far as it concludes that
the respondents Butterill and Foreman are entitled to compen
sation under paragraph 41(3)(b) of the Act. In all other
respects, the application is dismissed. With respect to the
applicant's first submission, the Review Tribunal was of the
opinion, for reasons that are not assailable, that it was essential
in the interests of justice to admit evidence of what had
transpired after the decision of the Human Rights Tribunal was
given. Having raised no objections to the questions put by
counsel for the Commission, the applicant should not now be
heard to object, more particularly since counsel stated that he
decided to let the witness have his say and to then deal with the
matter. Any right the applicant had to object to reception of
the evidence was waived and the present objection that the
Review Tribunal erred in admitting the evidence should not be
sustained. Concerning the second submission, in pronouncing
judgment on the issue of liability before affording VIA the
opportunity to adduce evidence to rebut the evidence given by
the witnesses Butterill and Foreman, the Review Tribunal acted
prematurely and failed to observe a principle of natural justice.
The decision that the respondents were entitled to compensa
tion should be set aside and the matter referred back to the
Review Tribunal both on the issue of its liability and on any
issues of quantum. As to the third submission, there is ample
evidence in the record from which it could be inferred that
Wolfman had suffered in his feelings and self-respect as a
result of his having been refused because of his eyesight,
employment of the kind he had sought. Finally, as to the fourth
submission, proof of the ability of the respondents to pass the
eyesight examination was not an element of the case which it
was incumbent on them to prove in support of their claim for
compensation. Their case was made out when they proved that
they were refused employment as a result of the application to
them of an unlawful discriminatory practice. On such evidence
and the other facts in evidence relating to each of the respond
ents, it could be inferred by the Tribunal that they had lost
wages that they otherwise would have earned. If VIA could
resist such an inference by establishing facts showing that the
respondents could not meet any "bona fide occupational
requirement" as to their eyesight, it was for VIA to put the
evidence of such facts before the Tribunal. Not having done so,
its objection cannot succeed.
APPLICATION for judicial review.
COUNSEL:
I. Scott, Q.C. and R. Anand for applicant.
I. J. Collins for respondent I. Cyril Wolfman.
R. G. Juriansz for respondents Marilyn But-
terill and David J. Foreman and for interve-
nant Canadian Human Rights Commission.
SOLICITORS:
Cameron, Brewin & Scott, Toronto, for
applicant.
Kerekes, Collins, Toronto, for respondent I.
Cyril Wolfman.
Russell G. Juriansz, Legal Counsel, Canadi-
an Human Rights Commission, Ottawa, for
respondents Marilyn Butterill and David J.
Foreman and for intervenant Canadian
Human Rights Commission.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an application under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to review and set aside an
interim decision of a Review Tribunal designated
under the Canadian Human Rights Act, S.C.
1976-77, c. 33, to hear and determine an appeal
brought by the Canadian Human Rights Commis
sion from the decision of a Human Rights Tri
bunal established under that Act to hear and
determine complaints which had been lodged by
the respondents. The subject of the attack under
section 28 is referred to in the originating notice of
motion as:
... the interim decision ... concerning the power of the Review
Tribunal to substitute its decision concerning damages for that
of the initial Tribunal and the award of a compensation under
Sections 41(2)(c) and 41(3)(b) of the Canadian Human Rights
Act.'
' A motion brought by the Commission for an order quashing
the section 28 application on the ground that the "interim
decision" of the Review Tribunal was not a "decision or order"
within the meaning of section 28 of the Federal Court Act was
dismissed on May 13, 1981 [not reported], the Court holding
that the interim decision "clearly disposed of some of the issues
that the Tribunal was empowered to determine" and was not a
mere expression of opinion that would not be reviewable under
section 28.
In his decision the Chairman of the Human
Rights Tribunal had found that the present appli
cant, VIA, had contravened the Canadian Human
Rights Act by refusing to hire the respondents
because of physical handicaps—eyesight deficien-
cies—and that the standards set by VIA Rail for
new employees were not based on a bona fide
occupational requirement within the meaning of
paragraph 14(a) of the Act. These findings were
not in issue on the appeal to the Review Tribunal.
Having made them, the Tribunal made an order
(a) requiring VIA to review the visual standards
in question,
(b) establishing VIA's visual standards for pro
motion and re-examination as the standards to
be applied in the meantime for new applicants
for employment, and providing as follows with
respect to the three complainants (respondents):
(c) In relation to Marylin [sic] Butterill, VIA Rail be
ordered to offer her a job as a waitress upon the next
position becoming available in Winnipeg, provided that
she is able to pass the visual standards currently in force
in relation to promotion and re-examination.
(d) With respect to Mr. Cyril Wolfman, that VIA Rail
offer him a position as porter for the summer months
provided that he is able to pass the visual standards
currently in force in relation to promotion and
re-examination.
(e) In relation to Mr. David Foreman, that VIA Rail offer
him a job as pantryman/waiter provided that he is able to
pass the visual standards currently in force as they relate
to re-examination and promotion.
No order for the payment of compensation 2 under
paragraph 41(2)(c) or 41(3)(b) was made. Nor
was any finding expressed either that any of the
respondents had been deprived of wages or
incurred expenses, within the meaning of para
graph 41(2)(c), or that he or she had suffered in
respect of feelings or self-respect, within the mean
ing of paragraph 41(3)(b).
z 41....
(2) If, at the conclusion of its inquiry, a Tribunal finds that
the complaint to which the inquiry relates is substantiated,
subject to subsection (4) and section 42, it may make an order
against the person found to be engaging or to have engaged in
the discriminatory practice and include in such order any of the
following terms that it considers appropriate:
The omission to make such an order was not
inadvertent. The Chairman of the Tribunal in the
course of his reasons, said:
Considering all circumstances of this case I do not think it
appropriate to award general damages. The essential remedy is
for VIA Rail to comply generally with The Canadian Human
Rights Act and to comply specifically with respect to the
complainants.
The provisions for an appeal from the decision
of a Human Rights Tribunal are found in section
42.1 of the Canadian Human Rights Act. It reads
as follows:
42.1 (1) Where a Tribunal that made a decision or order was
composed of fewer than three members, the Commission, the
complainant before the Tribunal or the person against whom
the complaint was made may appeal against the decision or
order by serving a notice in a manner and form prescribed by
order of the Governor in Council, within thirty days after the
decision or order appealed from was pronounced, on all persons
who received notice from the Tribunal under subsection 40(1).
(2) The Commission shall, forthwith after serving a notice of
appeal where it is the appellant or after receipt of a notice of
appeal, select three members from the panel of prospective
members referred to in subsection 39(5) other than the member
or members of the Tribunal whose decision or order is being
appealed from to constitute a Review Tribunal to hear the
appeal.
(3) Subject to this section, a Review Tribunal shall be
constituted in the same manner as, and shall have all the
powers of, a Tribunal appointed pursuant to section 39, and
subsection 39(4) applies in respect of members of a Review
Tribunal.
(4) An appeal lies to a Review Tribunal from a decision or
order of a Tribunal on any question of law or fact or mixed law
and fact.
(5) A Review Tribunal shall hear an appeal on the basis of
the record of the Tribunal whose decision or order is appealed
from and of submissions of interested parties but the Review
Tribunal may, if in its opinion it is essential in the interests of
justice to do so, receive additional evidence or testimony.
(c) that such person compensate the victim, as the Tribunal
may consider proper, for any or all of the wages that the
victim was deprived of and any expenses incurred by the
victim as a result of the discriminatory practice; and
(3) In addition to any order that the Tribunal may make
pursuant to subsection (2), if the Tribunal finds that
(a) a person is engaging or has engaged in a discriminatory
practice wilfully or recklessly, or
(b) the victim of the discriminatory practice has suffered in
respect of feelings or self-respect as a result of the practice,
the Tribunal may order the person to pay such compensation to
the victim, not exceeding five thousand dollars, as the Tribunal
may determine.
(6) A Review Tribunal may dispose of an appeal under this
section by
(a) dismissing it; or
(b) allowing it and rendering the decision or making the
order that, in its opinion, the Tribunal appealed from should
have rendered or made.
Exercising its right under this provision, the
Commission appealed the Tribunal's decision on
the ground, as set out in its notice of appeal, that:
The Tribunal ought to have ordered that the Respondent
compensate the Complainants for lost wages and suffering in
respect of feelings and self-respect, as a result of the dis
criminatory practices.
At the commencement of the hearing of the
appeal before the Review Tribunal, counsel for the
Commission and for the three complainants sought
and obtained leave to adduce evidence of events
which had transpired following the making of the
Tribunal's order and was also permitted to lead,
subject to any objection that might be taken by
counsel for VIA and to the right of VIA to call
evidence in rebuttal, further evidence in support of
the claim of the complainants for compensation.
Evidence was then given by the complainants,
Butterill and Foreman. This was followed by a
discussion at the conclusion of which the Chair
man said:
Well, shall we proceed in this fashion to hear argument on all
issues that you gentlemen wish to raise without closing any
doors to Mr. Allen's right to supplement the evidence if he feels
the need. It may be that our ruling may obviate that necessity,
or it may be that we will make such a ruling that you won't
want to proceed. At least we can proceed to the arguments this
morning and leave to a later point the question as to whether
we will have to hear further evidence. Is that satisfactory?
Counsel for the Commission and complainants
agreed and the argument of the appeal proceeded.
When it concluded the Chairman announced:
THE CHAIRPERSON: Gentlemen, we will adjourn now. There
are a number of things that we have to discuss among our
selves. Apart from decisions on the substantive issues, there is
also a question of whether there ought to be some further
hearing. Subject to your advice, what we suggest is that we
adjourn now, and we will notify you as to our further thoughts
on the matter.
Is that satisfactory, without setting any specific time or
future proceeding?
MR. JURIANSZ: Yes, that is satisfactory.
MR. ALLEN: That is fine with me.
Some two months later, and without any further
hearing, the Review Tribunal issued the interim
decision which is attacked in this proceeding. In it
the Review Tribunal held that it was clear from
the evidence presented to the Human Rights Tri
bunal that all three complainants suffered finan
cial loss by way of reduced income as a result of
the discriminatory practice and that the applicant
VIA should be required to compensate them for
such losses. The Review Tribunal also discussed
paragraph 41(3)(b), concluded that an additional
award under that provision is appropriate in a case
of this type and said that it was prepared to make
an award under that provision. It went on to
discuss the compensation period and the principles
for ascertaining the quantum but did not fix an
amount for any of the three complainants. The
Review Tribunal appears to have been under the
impression that such compensation had not been
asked for before the Human Rights Tribunal but
the transcript of the proceedings before that Tri
bunal shows that requests were made for such
compensation in the amount of $1,000 for the
complainant Butterill and $500 for each of the
other two complainants.
The interim decision concluded with the
paragraph:
This Review Tribunal will stand adjourned sine die, but will
be reconvened if a request to do so is transmitted to the
Chairperson by any of the parties.
The first ground of review set out in the origi
nating notice of motion, though raised in the appli
cant's memorandum, was not argued. I understood
it to be abandoned but, in any event, having regard
to paragraph 42.1(6)(b) of the Act, I do not think
it is fairly arguable that the Review Tribunal is not
empowered to substitute its judgment for that of
the Human Rights Tribunal.
With respect to the second ground, four points
were raised viz:
(i) That the Review Tribunal erred in law in permitting the
Commission to lead evidence concerning suffering and loss of
self-respect which was available to it prior to the Board of
Inquiry;
(ii) the awarding of damages to the complainants, Butterill
and Foreman, prior to the leading of rebuttal evidence by Via
Rail constituted a denial of natural justice;
(iii) there was no evidence before the Review Tribunal upon
which to found an award to the complainant, Wolfman, for
damages for suffering and loss of self-respect;
(iv) there was no evidence before the Review Tribunal upon
which to conclude that the complainants, Butterill and Wolf-
man, were able to satisfy the less stringent eyesight require
ment, which was a condition precedent to compensation.
The events giving rise to the first of these points
are outlined in the reasons of the Review Tribunal
as follows:
At the beginning of the hearing before this Review Tribunal,
Counsel for the Complainants and the Commission sought to
introduce further evidence on the subject of compensation, and
Counsel for the Respondent objected to this on the ground,
among others, that he had received no prior notice that such
evidence would be introduced, and was therefore not prepared
to meet it with rebuttal evidence.
We ruled, under Section 42 (5) [sic] of the Act, that it was
`essential in the interests of justice' to receive such additional
evidence, at least to the extent that it related to pecuniary
losses sustained between the date of the decision of the original
Tribunal and the date of reinstatement. With respect to other
evidence that might be introduced concerning compensation,
we indicated that we would rule on its admissibility in response
to any objection that might be raised by Counsel for the
Respondent as the examination of the witnesses progressed. We
then heard testimony from two of the Complainants, Marilyn
Kube (née Butterill), and David Foreman. Counsel for the
Respondent raised only one objection - to a statement by Mr.
Foreman that went well beyond his personal situation - and we
sustained the objection. Other evidence given by Mrs. Kube
and Mr. Foreman was not objected to, though some of it
related to matters other than pecuniary losses sustained be
tween the date of decision and the date of reinstatement. We
assured Counsel for the Respondent that he would have an
opportunity to produce rebuttal evidence, should he wish to do
so, at a subsequent hearing of the Review Tribunal.
The submission put forward by counsel for the
applicant, as I understood it, was that the Review
Tribunal was not entitled to hear the additional
evidence unless it was of the opinion that it was
essential in the interests of justice to do so and that
as there was nothing put before the Review Tri
bunal upon which it could reach such an opinion
and as the Tribunal apparently was not satisfied,
at least with respect to evidence of matters occur
ring prior to or at the time of the hearing before
the Human Rights Tribunal, the Review Tribunal
erred in admitting it.
Several points should be noted. First, the
Review Tribunal was of the opinion, for reasons
that are not assailable, that it was essential in the
interests of justice to admit evidence of what had
transpired after the decision of the Human Rights
Tribunal was given. Next, while it appears from
the record that questions were asked of the two
witnesses by counsel for the Commission relating
vaguely to their right to compensation under para
graph 41(3)(b) for suffering in respect of feelings
or self-respect as a result of their being refused
employment, no objection was taken when the
questions were asked, as the Review Tribunal had
suggested should be done if counsel for VIA
wished to object, and the second of these witnesses
was cross-examined at some length on the subject-
matter by counsel for VIA.
Further, it appears that in the course of argu
ment before the Review Tribunal the following
exchange occurred:
MR. LEDDY: Would it be fair to suggest the witness did perhaps
get from the first point on into the second, some point in part.
MR. ALLEN: He did wander into the second and I could have
objected but I decided to let him have his say and deal with the
matter.
Finally, in its reasons the Review Tribunal
appears to have come ultimately to the conclusion
on the basis of what was before it that it was
essential in the interests of justice to admit further
evidence. In a passage that follows immediately
after that cited above, the Board said:
The evidence as to compensation currently stands in this
incomplete and unsatisfactory state. If the parties are unable to
arrive at an agreement as to the appropriate quantum of
damages for each Complainant, it will be necessary to recon
vene the Review Tribunal in order to hear further evidence on
the subject. Although it is normally undesirable to permit
evidence to be introduced at the appeal level concerning mat
ters that could have been proven at the initial hearing, it is our
view, in light of the unsatisfactory nature of the evidence
submitted before the initial Tribunal, and in view of the
procedural uncertainty under which both Counsel seemed to
have been operating in attempting to apply this relatively new
legislation, that it is "essential in the interests of justice" to
permit the parties to introduce any additional evidence they
wish that is in any way relevant to the issue of quantum of
compensation.
I do not think it is necessary in the particular
circumstances to consider or discuss principles on
which Courts of Appeal act in dealing with
applications for leave to adduce further evidence
on appeal. The statute here prescribes the test.
Nor do I think it necessary to consider what sort of
material in support of such an application ought to
be before the Review Tribunal upon which it may
properly form the opinion. The Review Tribunal
has plainly reached the conclusion on what
appeared to it from the record. Nor, in my view, is
it necessary to consider whether the record would
sustain that opinion. Having raised no objection to
the particular questions put by counsel for the
Commission and the complainants when the ques
tions were put and having cross-examined one of
the two witnesses on the subject-matter, the appli
cant, in my opinion, should not now be heard to
object, more particularly in the light of the state
ment of counsel that he decided to let the witness
have his say and to deal with it.
In my opinion, any right the applicant had to
object to reception of the evidence was effectively
waived and the present objection that the Review
Tribunal erred in admitting the evidence should
not be sustained.
The second point raised was that the Review
Tribunal failed to observe principles of natural
justice by making a finding that the complainants,
Butterill and Foreman, were entitled to compensa
tion for suffering in respect of feelings or self-
respect before the applicant VIA had been afford
ed an opportunity to rebut the evidence given by
them before the Review Tribunal.
In the course of a lengthy discussion of the
matter, the Review Tribunal ruled that an award
under paragraph 41(3)(b) is appropriate in a case
of this type, that the absence of bad faith on the
part of VIA was not relevant to such an award,
that compensation should be available as a matter
of course where the circumstances to which the
paragraph refers exist, unless there are good rea
sons for denying the relief, that notwithstanding
the failure of counsel for the complainants to ask
the Human Rights Tribunal for such an award the
remedy was still open to the complainants on the
appeal and that the compensation period extended
from the time of denial of employment to what
was referred to as the date of reinstatement, or the
date when the particular complainant ceased to be
available for reinstatement whichever should be
earlier. While the others are of a general nature,
the last-mentioned ruling appears to have been
made in reference to the particular case before the
Tribunal. The Tribunal went on to discuss the
quantum of compensation, ruled that the appli
cable principle was that "the injured party should
be put back into the position he or she would have
enjoyed had the wrong not occurred, to the extent
that money is capable of doing so, subject to the
injured party's obligation to take reasonable steps
to mitigate his or her losses" and then proceeded:
The appropriate level of compensation for each Complainant
will depend on the evidence tendered as to that Complainant's
situation and the inferences that can be reasonably drawn
therefrom. Unfortunately, the evidence introduced on these
questions before the original Tribunal is not as satisfactory as it
might have been. Indeed, much of the information concerning
compensation was introduced by Counsel for the Complainants
during the course of argument rather than in evidence. Counsel
for the Respondent disputed the accuracy of some of the
information produced by the Complainants and their Counsel,
but did not offer any contrary evidence.
In this the Review Tribunal appears to be referring
to what transpired before the Human Rights Tri
bunal. The passage is followed by those already
quoted describing what occurred at the Review
Tribunal hearing. In what followed the Review
Tribunal said:
It is our hope, however, that the parties will not find it
necessary to call upon the Review Tribunal to reconvene.
Although Counsel expressed doubt during the course of the
hearing before us that they would be able to reach agreement
as to quantum of damages, we urge them to make the effort.
The calculations involved are largely, though not wholly, arith
metic, and it should be possible for experienced lawyers to
arrive at a relatively accurate estimate of the compensation
that would be awarded by this Review Tribunal applying the
general principles we have enunciated to the facts of which
Counsel are aware concerning the situation of the Complain
ants. If it should be necessary to reconvene the Review Tri
bunal, the cost to the taxpayers of Canada, as well as to the
Respondent, the Commission, and perhaps also to the Com
plainants, will be substantial. In order that this expense be
avoided if at all possible we call upon both Counsel to make
every effort to arrive at an agreement as to the amount of
compensation to be awarded.
This Review Tribunal will stand adjourned sine die, but will
be reconvened if a request to do so is transmitted to the
Chairperson by any of the parties.
I think it is apparent from all of this that the
Review Tribunal has concluded that the com
plainants are entitled to awards of compensation
under paragraph 41(3)(b) but that the evidence is
so unsatisfactory that it will be necessary to take
further evidence and that for that reason the pro
ceeding is adjourned sine die in the hope that a
settlement can be agreed on by the parties. What
clearly emerges is that the parties are to be afford
ed an opportunity to lead evidence on the question
of the appropriate amount to be awarded if no
agreement is reached. But the finding that each of
the complainants is entitled to an award of dam
ages has been made. It is against that decision that
the objection is directed.
In considering the applicant's submission, it
must be remembered that whether or not there
was evidence before the Human Rights Tribunal
on which it might have made an award under
paragraph 41(3)(b), the Tribunal had made no
finding that any of the complainants had suffered
in respect of feelings or self-respect as a result of
VIA's discriminatory practice and had made no
award of compensation to any of them. The
request for such an award thus raised for the
Review Tribunal issues both as to whether the
complainants had suffered and were entitled to an
award at all and if entitled to an award then as to
the quantum of it. It was for the Review Tribunal
to deal with these issues on such evidence as there
was in the record of the Human Rights Tribunal
and such further evidence as they might admit.
As I view it, what the Review Tribunal has done
is to decide the issue of entitlement in favour of the
complainants and to leave the quantum to be
determined, if possible, by agreement between the
parties or, failing such an agreement, by the
Review Tribunal after a further hearing which
would include the taking of further evidence. The
position so reached appears to be analogous to the
entering of a judgment for damages to be assessed.
If, as I think, that is the effect of what the Review
Tribunal has done it seems to me that in pronounc
ing judgment on the issue of liability before afford
ing the applicant VIA the opportunity to adduce
evidence on that issue to rebut the evidence given
by the complainants Foreman and Butterill the
Review Tribunal acted prematurely and failed to
observe a principle of natural justice. The decision
that those two complainants are entitled to an
award of compensation should therefore be set
aside and the matter referred back to the Review
Tribunal for determination after the applicant
VIA has been afforded an opportunity to adduce
evidence to rebut that given by the complainants
Butterill and Foreman both on the issue of its
liability to those complainants for an award under
paragraph 41(3)(b) and on any issues that arise as
to the quantum of the compensation to be paid to
them.
The same objection was not taken to the finding
in so far as it related to the complainant, Wolf-
man. What was submitted in his case was that
there was no evidence before the Review Tribunal
on which it could reach a conclusion that he had
suffered in self-respect or feelings as a result of the
discriminatory practice. As Wolfman did not give
evidence before the Review Tribunal, the material
before it consisted solely of what was in the record
of proceedings before the Human Rights Tribunal.
I disagree with the applicant's submission.
While there is no direct evidence on the point,
there is, in my view, ample evidence in the record
of facts from which it could be inferred that
Wolfman had suffered in his feelings and self-
respect as a result of his having been refused,
because of his eyesight, employment of the kind he
had sought. In so far as the decision of the Review
Tribunal finds that Wolfman is entitled to com
pensation under paragraph 41(3)(b), it should
stand.
The remaining point raised by the applicant
VIA was that there was no evidence on the record
upon which the Review Tribunal could conclude
that the complainants Butterill and Wolfman were
able to satisfy the less stringent eyesight require
ments for promotion or re-examination referred to
in the Tribunal's order. There was no evidence that
either complainant had passed that test because on
being offered a job by VIA some months after the
Tribunal's order, each declined for reasons of her
or his own that had arisen in the meantime. The
submission, as I understood it, was that without
proof of ability to pass the examination it had not
been established that the complainants had suf
fered any loss of wages as a result of the dis
criminatory practice.
On the evidence before it the Review Tribunal
found:
Although the precise amounts involved are subject to some
differences of opinion, it is clear from the evidence presented to
the initial Tribunal that all three Complainants suffered some
financial loss by way of reduced income as a result of having
been victims of a discriminatory employment practice carried
on by the Respondent. Should the Respondent be required to
compensate them for these losses? We are of the opinion that it
should.
In my opinion, proof of the ability of the com
plainants to pass the eyesight examination referred
to in the order of the Human Rights Tribunal was
not an element of the case which it was incumbent
on them to prove in support of their claim for
compensation for wages lost by them as a result of
the discriminatory practice. Their case, as I see it,
was made out when they proved that they were
refused employment as a result of the application
to them of an unlawful discriminatory practice. On
such evidence, and the other facts in evidence
relating to each of the complainants, it could be
inferred by the Tribunal that they had lost wages
that they otherwise would have earned. If, in this
situation, the applicant VIA could resist such an
inference by establishing facts showing that the
complainants, or any of them, could not meet any
"bona fide occupational requirement" as to their
eyesight (see paragraph 14(a) of the Act) it was
for VIA to put the evidence of such facts before
the Tribunal. Not having done so, its objection
cannot succeed.
In the result I would set aside the decision in so
far as it concludes that the respondents, Butterill
and Foreman are entitled to compensation under
paragraph 41(3)(b) of the Act and refer the
matter back to the Review Tribunal for determina
tion after having afforded to VIA an opportunity
to lead evidence in rebuttal of evidence given by
those respondents. In all other respects I would
dismiss the application.
RYAN J.: I agree.
MACKAY D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.