A former Coast Guard employee (“Brooks”) brought a complaint of racial discrimination under the Canadian Human Rights Act (the “Act”) against the Department of Fisheries and Oceans (the “DFO”). The Human Rights Tribunal determined that DFO had discriminated against Brooks based on his race. The Tribunal then declined to consider the remedies of reinstatement and back pay which Brooks sought. The Attorney General of Canada brought an application for judicial review to set aside the decision that the DFO had discriminated against Brooks and Brooks applied for judicial review of the decision to decline to consider the remedies.

Administrative law – Human rights complaints – Discrimination – Race – Decisions of administrative tribunals – Human Rights Tribunal – Employment – Appointment – Remedies – Hearings – Judicial review – Procedural requirements and fairness – Evidence – Standard of review – Correctness – Reasonableness simpliciter

Brooks v. Canada (Department of Fisheries and Oceans), [2006] F.C.J. No. 1569, Federal Court, October 18, 2006, Kelen J.

Brooks, a black man, gained temporary employment with the Coast Guard in 1988. He worked for the Coast Guard on and off until 1997.

In 1997, Brooks filed his Human Rights complaint on the basis of race. Brooks alleged that he was treated unfairly during employment by the Coast Guard, and that the Coast Guard appointed two white stewards off an eligibility list ahead of him. Brooks also alleged that during a job competition in 1992 where he ranked 13th, there were improper practices involved in appointing only the top three candidates to permanent positions where those three candidates were white.

The Human Rights Tribunal held a Hearing of the matter and dismissed the allegations with respect to unfair treatment and the issue of the eligibility list but found that Brooks had raised a prima facie case of discrimination with respect to the allegation about the granting of permanent positions to the three white stewards in 1992. The Tribunal concluded that the complaint of discrimination was not rebutted by the DFO and that although race may not have been a primary factor in the employment process, it was operating in the background.

Before hearing the remedy aspect of the Brooks complaint, the Tribunal determined that the evidence established that he would not have received a permanent position in 1992 in the absence of discrimination. The Tribunal held that reinstatement and back pay remedies were precluded by the liability decision.

Thereafter, the Tribunal conducted a telephone conference with respect to setting dates for the remedy aspect of the Hearing and also made a ruling on the scope of issues that should be considered on the remedy Hearing. The Federal Court therefore reviewed the main decision from the Tribunal as well as its comments in the telephone conference and the interim ruling.

One issue on the judicial review was whether the Tribunal had violated the rules of procedural fairness by failing to provide Brooks with a fair hearing on the remedy issue.

The Court held that on a review of a procedural fairness issue, the pragmatic and functional analysis does not apply. Procedural fairness is a question of law where no deference is due and is therefore reviewed on a standard of correctness.

There were three substantive issues on the judicial review. First, whether the Tribunal erred in holding that Brooks had established a prima facie case of discrimination. Second, whether the Tribunal erred in holding that DFO had failed to rebut that prima facie case, and third, whether the Tribunal erred in concluding that Brooks would not have obtained a permanent position in the absence of discrimination.

The Court proceeded through the pragmatic and functional analysis to determine the standard of review on the substantive issues. The Canadian Human Rights Act does not contain a privative clause or a statutory right of appeal. This factor weighs against deference to the Tribunal. The Human Rights Tribunal is considered to have significant relative expertise which favours a deference on findings of discrimination but no deference on questions of law.

The Act and the specific provisions at issue were held to suggest a less deferential standard of review in respect of findings of discrimination but greater deference with respect to the Tribunal’s choice of remedies. The nature of the particular question was distinct with respect to each of the substantive issues.

On the question of whether the Tribunal had erred in finding a prima facie case of discrimination, the Court held that this was a question of mixed fact and law and that in that light, the first issue should be reviewed on the standard of reasonableness.

The question of whether the Tribunal erred in holding that there was a failure to rebut the prima facie case was similarly analyzed as a question of mixed fact and law to which a standard of reasonableness ought to apply.

The issue of whether the Tribunal erred in holding that its liability ruling precluded the availability of the reinstatement and back pay remedies was considered to be a legally intensive mixed question of fact and law and therefore, the Tribunal’s decision about the available scope of remedies was also to be reviewed on a reasonableness standard.

The Court held that the legal test for establishing a prima facie case of discrimination is that it must be a case that covers the allegations made and that if these allegations are believed, is complete and sufficient to justify a verdict in favour of the Complainant in the absence of an answer from the Respondent employer. The Court noted that this proof of discrimination must often be accomplished by reliance on circumstantial evidence.

The Tribunal’s records disclosed that Brooks had demonstrated that the competition for permanent positions closed in June of 1992 but despite this, the first and second ranked candidates submitted their applications after the deadline and both candidates did not meet the advertised prerequisites for the position. Brooks had established a prima facie case for discrimination on that basis and through respect to the evidence of a black woman who had ranked 5th in the competition who also testified that there was discrimination against minority employees.

The DFO’s rebuttal submission was that the permanent employee competition was corrupted by favoritism and not by racial discrimination. The Court held that there was circumstantial evidence on the Tribunal’s record which, if believed, proved the allegation of racial discrimination in the competition process. The Court held that it was reasonably open to the Tribunal to hold that Brooks had established a prima facie case of discrimination.

The Court then moved on to consider whether the Tribunal erred in holding that the DFO had failed to rebut the prima facie case of discrimination. Although the Attorney General argued that the Tribunal had made an unreasonable finding by imposing too high a burden on the DFO with respect to rebuttal and by ignoring material evidence and failing to consider the DFO’s explanations, the Court held that the evidence was open to the Tribunal to weigh and that the ultimate decision that the DFO had discriminated against Mr. Brooks was reasonable. The Attorney General also argued that the Tribunal’s admission of evidence which constituted nothing more than an impression of discrimination was improper. The Court held that the Act provided for the Tribunal to receive and accept any evidence or other information that the Member or Panel saw fit, whether or not it would be admissible in a court of law.

The Court then turned to the issue of whether the Tribunal erred in concluding that Brooks would not have obtained a permanent position, even in the absence of discrimination. Brooks argued that the Tribunal had applied the wrong legal test in determining whether he could have obtained an indeterminate position in the absence of discrimination. The Federal Court of Appeal decision in Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401, articulated the test as one where it was not required to prove that without a discriminatory practice, the position would have been obtained. The Court’s view in that case was that if the Complainant could establish a serious possibility that the position would have been obtained, that would be sufficient to create a right to compensation. It would then be up to the Tribunal to determine the extent of damage and evaluate the parameters of that compensation.

The Court held that the Tribunal applied the wrong legal test and that the result and factual finding was unreasonable and should be set aside.

The Court then turned to the procedural fairness issue, namely whether the Tribunal had breached its duty to provide Brooks with a fair hearing regarding the remedy issue. Because the Court had concluded that the Tribunal erred in determining that its conclusion on liability precluded the availability of the reinstatement and back pay remedies, the Court did not consider the issue of whether the Tribunal had improperly denied him the opportunity to present evidence and speak to the issue of remedy. The Court held that Brooks did not have a fair Hearing on the remedy issue.

The Court concluded that the issue of whether Brooks would have obtained a permanent position in the absence of discrimination should be sent back to a different Member of the Tribunal for redetermination with the provision that the parties should have an opportunity to make representations on the remedy issue prior to that redetermination.

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