Sample Accommodation E-Lert
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January 23, 2020
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The Federal Court of Canada granted, in part, the employee’s appeal of an award issued by the Canadian Human Rights Tribunal on an accommodation issue. The tribunal held that Transport Canada had discriminated against the complainant by rejecting his job application for the position of Intelligence Marine Analyst on the basis that he suffered a mental disability. The tribunal also held that the complainant was only entitled to five years of compensation for lost wages and benefits, largely based on experience of other candidates who were appointed as analysts at the time Mr. Hughes should have been appointed. The Federal Court disagreed with the tribunal’s reasoning because it was based on the personal circumstances of other individuals, not those of the individual complainant.
Hughes v. Canada (Attorney General), 2019 FC 1026 (CanLII) (Federal Court, 31 July 2019) (LeBlanc J).
Mr. Chris Hughes is a former federal public service employee who suffered from anxiety and depression.
In 2006, he participated in several job competitions for an Intelligence Marine Analyst position with Transport Canada (TC).
Each of his applications was rejected by TC.
Furthermore, the evidence indicated Mr. Hughes’ application was rejected only after the selection panel was made aware of Mr. Hughes’ disability.
In 2008, Mr. Hughes filed a human rights complaint against TC, arguing that it had rejected his job applications because of his mental disability.
On July 9, 2014, the Canadian Human Rights Tribunal held that TC had discriminated against Mr. Hughes on the basis of his disability when it rejected his job application.¹
The tribunal’s decision (Liability Decision) was set aside by the Federal Court,² but was ultimately restored by the Federal Court of Appeal.³
In a subsequent hearing, the tribunal determined the remedy for TC’s discriminatory conduct against Mr. Hughes (Remedial Decision).4
At the hearing, TC conceded that, but for the discrimination, Mr. Hughes would have been appointed to an Intelligence Marine Analyst position in May 2006. Accordingly, the tribunal ordered TC to instate Mr. Hughes to the position of Intelligence Marine Analyst.
It also ordered TC to pay him compensation for lost wages and benefits (back pay) from the time he should have been appointed to the position to the point when, according to the tribunal, the causal link between TC’s discrimination and Mr. Hughes’ loss of wages was severed – from May 2006 to May 2011.
It also ordered TC to pay Mr. Hughes damages for pain and suffering and for its reckless conduct in the events that led to the discrimination.
Both parties were dissatisfied with the Remedial Decision. Each side challenged the tribunal’s finding regarding the end point (May 2011) at which time Mr. Hughes was, according to the tribunal, no longer entitled to back pay.
The Attorney General further claimed that it was unreasonable for the tribunal to order Mr. Hughes’ instatement in light of its own finding that the causal link between TC’s discrimination and Mr. Hughes’ loss of wages and benefits was severed in May 2011.
The Attorney General also contended that it was not open to the tribunal to find that TC recklessly engaged in discriminatory conduct towards Mr. Hughes since it had previously held, in the Liability Decision, that such conduct was indirect and unintentional.
Before examining the reasonableness of the remedies ordered by the tribunal, Justice LeBlanc of the Federal Court of Canada noted that the purpose of ordering remedies in the context of human rights:
 … is to make whole the victim of the discrimination…This may mean reinstating an employee in the position they would have been in had the discrimination not occurred and/or compensating for losses arising out of the discriminatory conduct
Justice LeBlanc then assessed whether it reasonable for the tribunal to order that Mr. Hughes to be instated in a position at TC. The Attorney General argued that instatement was unreasonable, as instatement and an award for lost wages and benefits amounted to double recovery. Justice LeBlanc disagreed, stating that:
 Instatement is inherently forward-looking and seeks to remedy the opportunity lost, which, by admission of the Attorney General, was an indeterminate position as an Intelligence Marine Analyst. A lost wages and benefits award, commonly referred to in employment law as “back pay”, seeks to compensate past loss, which would not have occurred but for the discrimination. [Emphasis added.]
Therefore, Justice LeBlanc did not interfere with tribunal’s order of instatement.
Second, Justice LeBlanc considered whether the tribunal committed a reviewable error in ordering TC to compensate Mr. Hughes for lost wages and benefits in the manner that it did. Justice LeBlanc first noted that:
 … there are two limits to compensation for lost wages: (i) causation must exist between the discriminatory practice and the loss claimed; and (ii) the discretion to award “any or all wages” must be exercised on a principled basis
The tribunal reasoned that the breaking point in causation was five years after Mr. Hughes should have been appointed (May 2006 to May 2011). This 5-year period was based on, among other factors, the experience of the candidates who were appointed as Intelligence Marine Analysts at the time Mr. Hughes should have been appointed. On this point, Justice LeBlanc found that:
 The fundamental error arising from this finding is that it relies on the presumption that Mr. Hughes would have, on a balance of probabilities, left the Intelligence Marine Analyst position with TC after 5 years. The premise … is … based on the personal circumstances of other individuals … [N]othing supports the finding that Mr. Hughes would have left the position after 5 years [Emphasis added.]
Justice LeBlanc concluded that the ultimate cut-off date of May 2011 hinged on the defective presumption that Mr. Hughes would have left the Intelligence Marine Analyst position after five years. Since there was no rational connection between this finding and the factual record before the tribunal, Justice LeBlanc concluded that this finding was unreasonable. Accordingly, the tribunal’s determination regarding the cut-off date for back pay was set aside.
Third, Justice Leblanc assessed whether it was reasonable for the tribunal to award special damages on the basis that it recklessly discriminated against Mr. Hughes. The Attorney General argued that the tribunal erred in awarding damages for reckless discrimination because the tribunal found in the Liability Decision that the discrimination was indirect and unintentional. However, Justice Leblanc held that:
 … a finding of recklessness does not require proof of intention to discriminate …
 Given this, I see no reason to interfere with the Tribunal’s decision in this regard.
In summary, the Attorney General’s challenge to the Remedial Decision of the Canadian Human Rights Tribunal was dismissed and Mr. Hughes’ challenge was granted in part, insofar as it relates to the determination of the ultimate cut-off date for back pay.
The determination of the financial portion of this issue was remitted to the tribunal for reconsideration.
Implications for Employers
For employers, the Hughes decision demonstrates that the ultimate cut-off date for the back-pay period is determined by reference to the personal circumstances of the complainant, not those of other individuals. In this case, the tribunal had largely reasoned that that a five-year back-pay period was justified because a significant number of Intelligence Marine Analysts hired in 2006 at TC had left by 2011. It therefore relied on the personal circumstances of other individuals. This portion of the tribunal’s decision was set aside because it was unclear whether the tribunal considered Mr. Hughes’ personal circumstances when determining the back-pay period.
Implications for Unions
For unions, this case demonstrates that awarding instatement (or reinstatement) and back pay does not constitute double recovery. Adjudicators have been somewhat inconsistent regarding whether both remedies should be granted to a complainant. However, as this case demonstrates, instatement and an award for lost wages and benefits remedy different components of the harm caused by discriminatory conduct. Instatement is forward-looking and seeks to remedy the opportunity lost, while a back-pay award seeks to compensate past loss, which would not have occurred but for the discrimination. Where possible, unions should seek both remedies.
1 Hughes v Transport Canada, 2014 CHRT 19.
2 Canada (Attorney General) v. Hughes, 2015 FC 1302.
3 Hughes v Canada (Attorney General), 2016 FCA 271.
4 Hughes v Transport Canada, 2018 CHRT 15.