A-827-88
Attorney General of Canada (Applicant)
v.
Marlene McAlpine, Canadian Human Rights
Commission (Respondents)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. MCALPINE
(CA.)
Court of Appeal, Heald, Urie and Marceau
JJ.A.—Ottawa, April 20 and May 18, 1989.
Human rights — Human Rights Tribunal ordering employ
er to pay compensation for unemployment insurance benefits
lost as result of discriminatory practice — No jurisdiction
under Canadian Human Rights Act, s. 41(2) to make such
award — Tribunal erred in assessing damages when applied
principle of restitutio in integrum without considering remote
ness or reasonable foreseeability.
Unemployment insurance — Human Rights Tribunal order
ing employer to compensate employee for unemployment in
surance benefits lost as result of discriminatory practice — No
jurisdiction under Canadian Human Rights Act, s. 41(2) to
make such award — Cases where evidence leading to clear
inference entitled to benefits distinguished.
This was an application to set aside a decision of the Canadi-
an Human Rights Tribunal ordering an employer, who had
admitted engaging in a discriminatory practice, to pay an
employee damages for loss of unemployment insurance ben
efits. An offer of employment was withdrawn in accordance
with then-existing policy when the employer learned that the
employee was pregnant. As a result of the discrimination, the
employee did not work, and therefore did not qualify for
unemployment insurance benefits. In awarding damages, the
Tribunal applied the principle of restitutio in integrum. The
applicant argued that subsection 41(2) of the Canadian Human
Rights Act did not authorize compensation for lost unemploy
ment insurance benefits, and that even if it did, the Tribunal
applied wrong principles in its assessment of damages.
Held, the application should be allowed.
The plain, ordinary and grammatical meaning of subsection
41(2) does not permit the relief given by the Tribunal. Para
graph 41(2)(b) is restricted to relief in the nature of specific
performance. The Druken case, wherein the Unemployment
Insurance Commission was ordered to pay unemployment in
surance benefits lost as a result of a discriminatory practice,
was distinguished. There, the benefits had been paid and
entitlement could be reasonably inferred from the evidence.
The Commission was ordered to do what it was required to do
under the Act. Here, the respondent had not acquired any
rights in respect of which she was entitled to an order for
specific performance. The Tribunal did not have the power to
award the compensation under paragraph 41(2)(c). Even if
unemployment insurance benefits could be said to be a conse
quence of the employment contract, they were not wages.
Paragraph 41(2)(d) is restricted to reimbursement for the cost
of necessary alternative goods, services, facilities or accommo
dation. The discretion conferred upon the Tribunal by Parlia
ment is operative only within the confines of the jurisdiction
given to it under paragraphs 41(2)(b),(c) and (d).
The Tribunal erred in failing to address the issue of reason
able foreseeability in assessing damages. Only such part of the
actual loss as is reasonably foreseeable is recoverable.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss.
7(a), 41 (as am. by S.C. 1980-81-82-83, c. 143, s. 20).
Canadian Human Rights Act, R.S.C., 1985, c. H-6, s.
53(2).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Ontario Human Rights Code, R.S.O. 1980, c. 340.
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c.
48.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian National Railway Co. v. Canada (Canadian
Human Rights Commission), [1987] 1 S.C.R. 1114;
Rosanna Torres v. Royalty Kitchenware Limited and
Francesco Guercio (1982), 3 C.H.R.R. D/858 (Ont. Bd.
of Inquiry); DeJager v. Canada (Department of National
Defence) (1987), 8 C.H.R.R. D/3963.
DISTINGUISHED:
Canada (Attorney General) v. Druken, [1989] 2 F.C. 24;
(1988), 9 C.H.R.R. D/5359 (C.A.).
REFERRED TO:
Asamera Oil Corporation Ltd. v. Sea Oil & General
Corporation et al., [1979] 1 S.C.R. 633; B.D.C. Ltd. v.
Hofstrand Farms Ltd., [1986] 1 S.C.R. 228; 26 D.L.R.
(4th) 1.
AUTHORS CITED
Driedger, Elmer A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
Living Webster Encyclopedic Dictionary of the English
Language, "Wage". Chicago: English—Language Insti
tute of America, Inc., 1971.
Shorter Oxford English Dictionary, 3rd ed., "Wage".
Oxford: Clarendon Press, 1978.
COUNSEL:
Bruce S. Russell for applicant.
James R. Hendry for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Canadian Human Rights Commission,
Ottawa, for respondents.
The following are the reasons for judgment
rendered in English by
HEALD J.A.: This is a section 28 [Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10] application
to review and set aside a decision rendered pursu
ant to section 41 of the Canadian Human Rights
Act, S.C. 1976-77, c. 33 (the Act), by a Tribunal
appointed to inquire into a complaint lodged by
the respondent McAlpine against the Department
of National Defence (DND). The complaint
alleged that DND was guilty of a discriminatory
practice by refusing to employ her on a prohibited
ground of discrimination pursuant to paragraph
7(a) of the Act.'
The facts as agreed by counsel before the Tri
bunal established that the respondent McAlpine
was a member of the Canadian Forces Reserve.
She had received training as a clerk. On May 22,
1985, an offer was made to her for employment as
an administrative clerk. The offer was subject to a
policy of the Canadian Forces at that time which
prohibited a person while pregnant, from being
engaged in such employment with the Canadian
Forces. That policy is no longer in effect. When it
was discovered that the respondent was pregnant,
the offer of employment was withdrawn. At the
hearing before the Tribunal, counsel further stipu
lated: that Marlene McAlpine would have worked
from July 3, 1985 to October 11, 1985 inclusive
(14 weeks); that she did not work any of those
weeks because of the Forces policy referred to
7. It is discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual,
or
on a prohibited ground of discrimination.
supra; that only ten weeks were necessary to quali
fy her for unemployment insurance benefits; that
but for the fact that she did not have any insurable
weeks, she would have paid the necessary unem
ployment insurance premiums, filed her claim for
benefits on January 27, 1986 and would have
received unemployment insurance for the week
beginning on Sunday, January 26, 1986, to the
week ending and including June 7, 1986. The
Tribunal noted, (Case, Vol. 1, pages 6-7):
All aspects of this case have been settled by a Consent Order,
except whether or not there is an entitlement to damages as a
result of her failure to receive her unemployment insurance
benefits.
The quantum of those damages, if payable, were
agreed on at $4,692. After a review of what it
considered to be the relevant statutory provisions
as well as the applicable jurisprudence, the Tri
bunal concluded (Case, Vol. 1, pages 11-12):
Marlene McAlpine would have been paid her wages, had she
worked, and she would have been entitled to unemployment
insurance benefits as her employer would have made the appro
priate deductions. But for the discrimination, Marlene McAl-
pine would have had unemployment insurance benefits
.... Marlene McAlpine has a claim for compensation. Here,
compensation must be payment of damages. The appropriate
remedy is to award unemployment insurance benefits that
would have been available to the complainant had she not been
a victim of discrimination. The loss to Marlene McAlpine flows
directly from the discriminatory employment practice. As this
loss is direct and the Act is essentially remedial, it follows that
to be consonant with the latest cases from the Supreme Court
of Canada, this tribunal must direct the Respondent to com
pensate McAlpine for her losses suffered as a result of the
discriminatory practices by the Respondent.
In the result, the Tribunal's order provided, inter
alia, that the Canadian Forces pay to Marlene
McAlpine the sum of $4,692 in compensation for
loss of unemployment insurance benefits.
The applicant attacks the decision of the Tri
bunal on two grounds, firstly that subsection 41(2)
[as am. by S.C. 1980-81-82-83, c. 143, s. 20] of
the Act does not authorize or permit an award of
compensation for foregone unemployment insur
ance benefits, and, secondly, even assuming such
authority, the Tribunal applied erroneous princi
ples in its assessment of damages in the circum
stances of this case.
The parameters of relief available pursuant to
subsection 41(2) of the Act
Subsection 41(2) of the Act (now cited as sub
section 53(2); R.S.C., 1985, c. H-6) provides:
4I....
(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:
(a) that such person cease such discriminatory practice and,
in order to prevent the same or a similar practice from
occurring in the future, take measures, including
(i) adoption of a special program, plan or arrangement
referred to in subsection 15(1), or
(ii) the making of an application for approval and the
implementing of a plan pursuant to section 15.1,
in consultation with the Commission on the general purposes
of those measures;
(b) that such person make available to the victim of the
discriminatory practice on the first reasonable occasion such
rights, opportunities or privileges as, in the opinion of the
Tribunal, are being or were denied the victim as a result of
the practice;
(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
(d) that such person compensate the victim, as the Tribunal
may consider proper, for any or all additional cost of obtain
ing alternative goods, services, facilities or accommodation
and any expenses incurred by the victim as a result of the
discriminatory practice.
The compensatory paragraphs in subsection (2)
of section 41 are paragraphs (b), (e) and (d). In
the applicant's submission, none of these para
graphs entitled the Tribunal to award compensa
tion for foregone unemployment insurance ben
efits. In so far as paragraph (b) is concerned, the
applicant submits that the plain, ordinary and
grammatical sense of the wording employed indi
cates that paragraph 41(2)(b) is intended as a
non-monetary remedy. Turning to paragraphs
41(2)(c) and (d), the applicant agrees that these
paragraphs provide for monetary remedies but
argues that they provide for specific heads of
compensation rather than for compensation gener
ally.
I agree with these submissions. Turning firstly
to paragraph 41(2) (b), and examining the words
used therein in their context and in their gram-
matical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act and the
intention of Parliament, 2 I interpret this provision
as affording to the victim of a discriminatory
practice, a remedy in specific performance. A
perusal of the French version supports such an
interpretation. In my view, both the English ver
sion "make available to the victim of the dis
criminatory practice" and the French version
"d'accorder à la victime" do not make provision
for monetary compensation. It would have been a
simple matter for Parliament to provide for com
pensatory relief in this paragraph had it so intend
ed. The language employed herein is foreign to the
traditional language used in conferring power to
grant monetary relief. Moreover, the fact that
Parliament has expressly provided for monetary
relief in paragraphs 41(2)(c) and (d), fortifies my
view that paragraph 41(2)(b) must be restricted to
relief in the nature of specific performance.
Counsel for the respondents, however, relies on
the recent decision of this Court in the case of
Canada (Attorney General) v. Druken. 3 In that
case, the Tribunal had found that certain provi
sions of the Unemployment Insurance Act, 1971
[S.C. 1970-71-72, c. 48] contravened the Canadi-
an Human Rights Act. The impugned provisions
prohibited the complainant from eligibility for
benefits on the ground of marital status (the com
plainant had been employed by her husband). The
Tribunal ordered, inter alia, the Unemployment
Insurance Commission to pay the unemployment
insurance benefits that would have been received
by the complainant but for the discriminatory
practice. However, Druken is distinguishable from
the case at bar because, in Druken, "each of the
respondents had, in fact, been paid benefits and it
was, therefore proper to infer that each was other
wise entitled to benefits".'
Mr. Justice Mahoney was careful to narrow the
limits of entitlement to those cases where entitle
ment could reasonably be inferred from the
2 This is the test propounded by Dr. Driedger in Construction
of Statutes, 2nd ed. Toronto: Butterworths, 1983, at p. 87.
3 [1989] 2 F.C. 24, at p. 36; (1988), 9 C.H.R.R. D/5359
(C.A.), at p. D/5368.
4 The above is a quotation from the judgment of the Court
written by Mahoney J.A. at pp. 36 F.C.; D/5368 C.H.R.R. at
paragraph 40154.
evidence.' In my view, the circumstances at bar do
not warrant the drawing of the same inference as
was drawn in Druken. In Druken, unemployment
insurance benefits had, in fact, been paid. In this
case, the respondent McAlpine was never, in fact,
employed by DND. Accordingly, we have here a
situation where entitlement cannot reasonably be
inferred from the evidence. In Druken, the
impugned order was directed to the Unemploy
ment Insurance Commission ordering it to do what
it was required to do pursuant to the provisions of
the Unemployment Insurance Act, 1971. In the
case at bar, as noted supra, the respondent could
not be said to have acquired any rights in respect
of which she was entitled to an order for specific
performance.
Turning now to paragraph 41(2)(c), it is the
submission of the respondents that since the provi
sion of unemployment insurance benefits can be
said to be a consequence of the employment con
tract, such benefits are encompassed by the provi
sions of paragraph 41(2)(c). I do not agree. Even
accepting the view that such benefits can be said to
be a consequence of the employment contract, I do
not think they can be considered to be wages. The
Shorter Oxford English Dictionary defines
"wage", inter alia, as: "A payment to a person for
service rendered." The Living Webster Encyclope
dic Dictionary of the English Language defines
"wage" inter alia, as "money paid for labor or
services, usu. according to specified intervals of
work, as by the hour, day, or week". Bearing these
definitions in mind, I do not think that unemploy
ment insurance benefits can be said to be included
in the category of wages. Unemployment insur
ance benefits are a species of insurance payable in
circumstances where wages are not being received.
Accordingly, I do not think the Tribunal had the
power to award the compensation herein in issue
pursuant to paragraph 41(2)(c) of the Act.
In so far as paragraph 41(2)(d) is concerned, I
think it obvious, based on the plain language of the
paragraph, that it is restricted to reimbursement
for the cost of necessary alternative goods, ser
vices, facilities or accommodation. By no stretch of
5 See the Druken case, at pp. 36 F.C.; D/5368 C.H.R.R. at
paragraph 40155.
the imagination could it be interpreted so as to
include compensation for foregone unemployment
insurance benefits.
Counsel for the respondent submits, however, by
a reference to the provisions of paragraphs
41(2)(b), (c) and (d) that Parliament has given
the Tribunal wide discretionary powers in respect
of its power to award compensation. He empha
sizes the words "in the opinion of the Tribunal" in
paragraph 41(2)(b), in paragraph 41(2)(c), the
words "as the Tribunal may consider proper" and
in paragraph 41(2)(d), the same words "as the
Tribunal may consider proper". Because of this
wide discretion, counsel suggests that this is a case
for the application of the doctrine of judicial defer
ence to the decision of the Tribunal since, on these
facts, there is nothing to suggest that the discretion
was not exercised in good faith or that it was based
upon irrelevant considerations.
My problem with that submission is that the
discretion conferred upon the Tribunal by Parlia
ment is only operative within the confines of the
jurisdiction given to it pursuant to paragraphs
41(2)(b), (c) and (d). For the reasons given supra,
I have concluded that the plain, ordinary and
grammatical sense of the wording utilized therein
does not permit or allow the relief given by the
Tribunal in this case. In arriving at this conclusion,
I have endeavoured to ascribe to the words of the
Act their plain meaning while at the same time
giving the rights enunciated in the legislation their
full recognition and effect. 6
The assessment of damages
Having decided that the statute does not confer
jurisdiction upon the Tribunal to award compensa
tion for foregone unemployment insurance ben
efits, such a conclusion is sufficient to dispose of
this section 28 application. However, since both
counsel made extensive submissions on the second
ground of attack on the Tribunal's decision, I
propose to deal with that issue as well. Applicant's
counsel submitted that the Tribunal erred in the
principles which it applied to the assessment of
damages under this Act. The tests asserted by the
6 This approach is the one set out by Chief Justice Dickson in
Canadian National Railway Co. v. Canada (Canadian Human
Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134.
Tribunal (Case, page 10), were that: "the princi
ples employed by courts when awarding compensa
tory damages in civil litigation" should be fol
lowed. The applicable criterion in this case was
then stated as follows:
The root principle of the civil law of damages is "restitution
integrum": 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.
The principle relied on is slightly misquoted but
the obvious intention was to rely on the doctrine of
"restitutio in integrum". However, the proper test
must also take into account remoteness or reason
able foreseeability whether the action is one of
contract or tort. Only such part of the actual loss
resulting as is reasonably foreseeable is
recoverable.'
The doctrine of reasonable foreseeability has
also been accepted by other Human Rights Tri
bunals as a necessary component in the assessment
of damages. I refer particularly to the Torres
case.' In that case, Professor Peter Cumming
stated:
... what is the durational extent to which general damages
should be ordered in effectuating compensation? There are
analogous issues in tort law and contract law, of course, where
damages are limited to those reasonably forseeable [sic] to the
wrongdoer. It seems to me, at first impression, that these
principles are appropriate to awarding general damages under
the Code. That is, there is a cut-off point in awarding general
damages by way of compensation. 1 would express this as
saying that a respondent is only liable for general damages for
a reasonable period of time, a "reasonable" period of time
being one that could be said to be reasonably forseeable [sic] in
the circumstances by a reasonable person if he had directed his
mind to it.
The Torres case was a decision under the
Ontario Human Rights Code [R.S.O. 1980, c.
Compare: Asamera Oil Corporation Ltd. v. Sea Oil &
General Corporation et al., [1979] 1 S.C.R. 633, at pp. 645,
646, 673.
To the same effect, see B.D.C. Ltd. v. Hofstrand Farms Ltd.,
[1986] 1 S.C.R. 228, at pp. 243-246; 26 D.L.R. (4th) 1 at
pp. 13-15.
8 Rosanna Torres v. Royalty Kitchenware Limited and
Francesco Guercio (1982), 3 C.H.R.R. D/858 (Ont. Bd. of
Inquiry), at p. D/872, par. 7748.
340]. The rationale quoted supra, in Torres was
followed by a Tribunal appointed under this Act in
the 1987 case of DeJager v. Canada (Department
of National Defence). 9 Applying the doctrine of
reasonable foreseeability, the Tribunal in DeJager
awarded compensation pursuant to paragraph
41(2)(c) until the end of the applicant's enrolment
period in the Armed Forces, which, in the view of
the Tribunal, was a "reasonably foreseeable time"
in the circumstances of that case.
Having regard to the abundance of jurispru
dence supra, I am persuaded that this Tribunal
committed further reviewable error in failing to
address itself to the issue of reasonable foreseeabil-
ity in the case at bar. This forms an additional
ground in my view for setting aside the decision of
the Tribunal.
Remedy
The remedy provided by the Tribunal reads as
follows (Case, Vol. 1, pages 12 and 13):
1. DECLARES that the Respondent engaged in discriminatory
practices against McAlpine and that the actions of the
Respondent deprived McAlpine of employment opportunities
on a prohibited ground of discrimination.
2. ORDERS that Marlene McAlpine be compensated for the
loss of her right to unemployment insurance benefits that she
would have been able to receive had she been able to work the
stipulated insurable weeks of employment.
3. ORDERS that the Respondent pay to Marlene McAlpine the
sum of $4,692.00 in compensation for loss of unemployment
insurance benefits.
For the reasons expressed supra, the section 28
application should be allowed, and paragraphs 2
and 3 of the decision of the Tribunal dated July
19, 1988 should be set aside.
URIE J.A.: I concur.
MARCEAU J.A.: I concur.
9 (1987), 8 C.H.R.R. D/3963, at pp. D/3966 and D/3967.
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.