The Court of Appeal allowed the appeal by the Coquitlam School District from a decision of a chambers judge on application for judicial review. The Appeal Court found that the chambers judge erred in applying a correctness standard to a decision of the BC Human Rights Tribunal where the tribunal considered the complainant’s mitigation of damages in its award of compensation for wage loss. The Tribunal was under no obligation to apply the common law test for mitigation in determining what amount of compensation to award. The issue of assessing compensation was a discretionary one which attracted a standard of review of patent unreasonableness as prescribed by s.59 of the Administrative Tribunals Act, SBC 2004, c.45.

23. April 2013 0

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Discretion of tribunal – Human rights complaints – Discrimination – Gender – Remedies – Damages – Duty to mitigate – Judicial review – Standard of review – Correctness – Patent unreasonableness

J.J. v. Coquitlam School District No. 43, [2013] B.C.J. No. 542, 2013 BCCA 67, British Columbia Court of Appeal, February 6, 2013, M.E. Saunders, H. Groberman and A.W. MacKenzie JJ.A.

This was an appeal by the Coquitlam School District from a chambers judge’s decision on judicial review that the BC Human Rights Tribunal (the “Tribunal”) misapplied the doctrine of mitigation of damages and, in the result made too small an award to the complainant, JJ. The judge remitted JJ’s claim to the Tribunal for a re-assessment of damages.

Between 1996 and 2006, JJ was employed as a casual painter by the Coquitlam School District. JJ alleged that beginning in approximately 2003, she suffered sex discrimination in her employment. Her major complaint was that her supervisory authority over other casual painters was removed as a result of sex discrimination and the District failed to place her on the list of “continuing casual painters”, a class of workers that worked in the winter as well as the summer months. Following a hearing, the Tribunal found that JJ’s gender was a factor in her treatment in the workplace and in the District’s decision not to rehire her and awarded her compensation for wage loss, but limited the compensation because JJ had failed to mitigate her damages by accepting the rehire offer of the District and/or finding other employment thereafter.

JJ applied to the Supreme Court to review certain aspects of the Tribunal’s ruling, including the ruling on mitigation. On judicial review, the chambers judge stated that the question of whether a reasonable person world have mitigated damages by returning to work was a question of mixed fact and law and that the catch-all standard of correctness applied to questions of mixed fact and law. Accordingly, the judge considered that he owed no deference to the Tribunal on the question of mitigation. The judge determined that the District had the onus of proving that the work environment would not have been “hostile, embarrassing or humiliating” for JJ had she returned and the District failed to meet that onus. The chambers judge remitted the matter back to the Tribunal to reconsider the issue of reinstatement as well as mitigation. The District appealed the judge’s ruling and argued that the Tribunal had the discretion to determine the appropriate remedy and the trial judge wrongly failed to defer to the discretion of the Tribunal.

The appeal was allowed. The standard of review is that of patent unreasonableness as set out in section 59 of the Administrative Tribunals Act. The judge ought to have recognized that the question of assessing compensation under section 37(2)(d)(ii) of the Human Rights Code is discretionary in nature. Unless there was an inextricable issue of fact or law underlying the exercise of discretion, the standard of review is that of “patent unreasonableness” as that concept is defined in sections 59(3) and 59(4) of the Administrative Tribunals Act. The chambers judge erred in proceeding on the basis that the Tribunal was required to apply the doctrine of mitigation in exercising its discretion when that was not the case.

The Tribunal is however permitted to apply the doctrine of mitigation in the exercise of its discretion to determine the amounts payable to a complainant, which is what it did in this particular case. While the Appeal Court could not say with certainty that the Tribunal intended to apply the common law test, it noted that the Tribunal did cite the correct test and applied it to its findings of fact. It was not open to the chambers judge to substitute findings of fact for those found by the Tribunal. In particular, it was not open to the trial judge to find that JJ would have faced a “hostile, embarrassing and humiliating” environment upon her return to work when the Tribunal made no such finding and appears to have come to an opposite conclusion. Finally, even if the Court was persuaded that the Tribunal had intended to adopt the common law test and misapplied it, there would remain the question of whether such an error would undermine the discretionary decision of the Tribunal. It is not at all clear that a misapprehension of the legal test for mitigation would have rendered the Tribunal’s decision “arbitrary” since it had no obligation to apply that test in the first place, and could properly apply different tests for mitigation.

In summary, the Tribunal did not err in coming to the conclusion as to the appropriate amount to award the complainant in compensation for loss of wages. Accordingly, the appeal was allowed and the decision of the BC Human Rights Tribunal was restored.

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