Canada ( Department of National Health and Welfare ) v. Chander
T-58-96 / T-957-96
Muldoon J.
21/5/97
24 pp.
Application for judicial review of majority decisions of CHRC finding respondents Chander and Joshi had been discriminated against by Department of National Health and Welfare and awarding remedies and damages-Respondents reviewed and evaluated new drug submissions in Department's Infection and Immunology Division-Division chief extremely pleased with contribution of both complainants-After applicants involved in disagreement with peers over AIDS-related drug evaluation policy (fluconazole incident) and after one of those peers became Division chief, Joshi's performance review and employee appraisal (PREA) downgraded from fully satisfactory to satisfactory-Neither succeeded in competition for evaluator positions within Department-CHRC found each complainant had heard prior to job interview would not succeed in job competition-Joshi's term of employment ended with two days' notice and Chander's secondment terminated-Standard of review of human rights tribunal on questions of law: correctness-Reviewing courts will defer on fact finding-Government arguing reasons Chander and Joshi not promoted result of conflict of personalities during incident and not racism-Finding thereon (CHRT did not believe conflict of personalities explanation) matter of fact and reviewing court will defer to factual determination made by tribunal-Majority did not err in law in finding evidence adduced through cross-examination not enough to rebut prima facie case of discrimination-Tribunal correctly applied correct test to determine whether prima facie case of discrimination made out: Israeli v. Canada (Canadian Human Rights Commission) (1983), 4 C.H.R.R.D/1616 -No reason to intervene in finding concerning fluconazole incident as matter of fact-Reliance on particular witness' evidence entirely within purview of Tribunal-Finding respondents qualified also finding of fact-Majority's appreciation of evidence not unreasonable-Application for judicial review of finding of discrimination in T-58-96, dismissed-As to T-957-96, dealing with remedy and award, main approach not to punish discrimination but to provide relief for victims of discrimination-CHRT ordered Joshi re-instated to appropriate position on indeterminate basis and awarded $63,588 in compensation for lost wages, and $5,000 damages for hurt feelings; ordered Chander be appointed from BI-03 to BI-04 on indeterminate basis, $40,601 for lost wages and $1,000 for hurt feelings-Tribunal correct in law in ordering reinstatement on first reasonable occasion-Decision with respect to remedy and damages not unreasonable-Appplications dismissed.