[2000] 4 F.C. 629
T-1529-98
The Attorney General of Canada (Applicant)
v.
Nancy Green and Canadian Human Rights Commission (Respondents)
Indexed as: Canada (Attorney General) v. Green (T.D.)
Trial Division, Lemieux J.—Toronto, June 28, 1999; Ottawa, June 2, 2000.
Human Rights — Respondent denied PM-6 bilingual non-imperative position on basis could not meet language qualifications — Denial of entry into PSC’s full-time French language training program, on basis of negative prognosis following testing and evaluation by PSC, discrimination on ground of disability (dyslexia in auditory processing) — Burden of proof — Adverse effect discrimination — Obligation to accommodate — Systemic remedies — Personal awards to respondent.
Public Service — Selection process — Merit principle — Discrimination on prohibited ground — Respondent denied PM-6 bilingual non-imperative position on basis could not meet language qualifications — Denial of entry into PSC’s full-time French language training program, on basis of negative prognosis following testing and evaluation by PSC, discrimination on ground of disability (dyslexia in auditory processing) — Adverse effect discrimination — Obligation to accommodate — Systemic remedies — Personal awards to respondent.
Official Languages — Public service — Respondent denied PM-6 bilingual non-imperative position on basis could not meet language qualifications — Denial of entry into PSC’s full-time French language training program, on basis of negative prognosis following testing and evaluation by PSC, discrimination on ground of disability (dyslexia in auditory processing) — Burden of proof — Adverse effect discrimination — Obligation to accommodate — Systemic remedies — Personal awards to respondent.
In August 1987 the respondent, Nancy Green, “won” a Public Service closed competition for a PM-6 bilingual non-imperative position but was not appointed because tests revealed that she lacked an aptitude of learning French through full-time training within the time specified by Treasury Board.
She was denied entry into the program on the basis of a negative prognosis following testing and evaluation (screening) by the PSC, by means, inter alia, of a language aptitude test consisting of Modern Language Aptitude Test (MLAT) and two Pimsleur subtests to establish a person’s second language learning abilities. These tests assess a person’s learning abilities within a cost effective time frame. These tests are based on predictors of the ability to learn a second language including sound/symbol discrimination, rote memory for speech sounds, and grammatical structure. The respondent’s scores on the auditory section of the screening tests ranked her well below the area of acceptance into the second language program set by the Language Training Program (LTP).
Later testing determined that the respondent was a highly intelligent and presentable woman with high average intellectual potential, but that she was having problems achieving her full potential because of a learning disability or dyslexia affecting auditory processing functioning. This meant that she could not learn French in the usual way and explained her results on the screening test.
The respondent then filed two complaints with the Canadian Human Rights Commission (CHRC), one against the Treasury Board and one against the Public Service Commission, for discrimination on the basis of a disability (dyslexia in auditory processing).
The Human Rights Tribunal found adverse effect discrimination based on disability, no accommodation. The Tribunal ordered wide-ranging systemic discrimination remedies directed at Treasury Board and the PSC to effect the accommodation of persons with learning disabilities in employment, access to language training. The Tribunal also ordered that the respondent be appointed immediately to a position at the PM-6 level, or that, at least, she receive a salary at the PM-6 level; a lump sum for wages lost due to the discriminatory practice to December 31, 1997 in the amount of $69,895,25; an amount calculated as the total sum of payments, paid monthly, in the amount of $825.66 each, from January 1, 1998 to the date of the judgment; a “gross up” to compensate her for adverse income tax implications; pension adjustment; admission to the full-time government-sponsored French language training program; removal of the “negative prognosis” with respect to the language aptitude tests from all files held by the employer; appropriate management training followed by appointment to a position at the EX-1 level; special compensation in the amount of $5,000 pursuant to subsection 53(3) of the Canadian Human Rights Act; compound interest at the Canada Savings Bond rate from the date of the discriminatory practice, January 5, 1987, on all amounts owing to the respondent; $4,057,22 for the costs of legal advice.
This was an application for judicial review of that decision.
Held, the application should be allowed in part, for the purpose of varying certain of the personal awards to the respondent.
The major issues involved the Tribunal’s fact-finding function or questions of mixed fact and law. And in this respect, in view of the Tribunal’s expertise in this area, it was appropriate to exercise a relative degree of deference to the finding of discrimination.
The Tribunal’s approach in arriving at its conclusions was consistent with proper legal principles governing the issue. The Tribunal applied the correct definition of discrimination; correctly applied a purposive approach to the interpretation of human rights legislation; correctly analyzed the case as one of adverse effect discrimination where the relevant rule is not struck down but where what is important is the accommodation to the discriminatory effects; properly took into account the special context in which disability should be considered: Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.
The Tribunal did not decide that the tests used by the PSC as a predictor of success in the LTP were directed to or against persons with learning disabilities particularly in the form of an auditory memory sequencing deficiency. What the Tribunal did find was that these non-discriminatory tests applied to the general Public Service population did have adverse consequences on people suffering from that deficiency. In terms of the tests, the Tribunal expressed those adverse consequences as their focus on the respondent’s weakness in auditory memory sequencing skills and in a context where those tests did not evaluate a person’s compensatory strength which she could use to learn French within the allotted time provided that the language training was adapted to account for her strengths rather than her disability weaknesses. There was evidence from all experts upon which the Tribunal could make the finding of discrimination.
The Attorney General argued that persons with auditory disabilities were not denied a chance to demonstrate their aptitude and were treated no differently from other individuals who have difficulty learning a second language. Even assuming that the Attorney General was correct in his argument that the MLAT was not discriminatory because it truly measured a person’s foreign language abilities, the Attorney General could not succeed because discrimination can still arise when the disability is ignored and forces the individual to sink or swim in the mainstream; and it is not necessary for a finding of adverse effects suffered by a person to arise from the imposition of a burden not faced by the mainstream population but rather to insure they benefit equally from a service: Eldridge and Eaton. When the respondent’s learning disability was identified, there arose an obligation to accommodate because it was inappropriate to treat her as if she was in the mainstream LTP.
The recommendations of the PSC Orientation Counsellor and the program put in place by the respondent’s Department to allow her to develop her capacity in French, including private tutoring during working hours did not meet the duty to accommodate to the point of undue hardship. There was evidence upon which the Tribunal could find that there had been a total lack of accommodation on the part of the Treasury Board and the PSC.
The systemic remedies ordered by the Tribunal were not inappropriate. The applicant’s arguments to the contrary were a challenge to the fact-finding function of the Tribunal and should fail for the same reasons as the arguments made on whether the MLAT test was discriminatory. Furthermore, the Tribunal’s bottom line was that the Treasury Board and the PSC must learn how to effectively implement their own policies of non-discriminatory practice. The Tribunal’s order requiring the PSC to create an alternative method to test the aptitude of persons with learning disabilities to complete the language training program in the allotted time frame did not throw out the MLAT and Pimsleur tests as the main identifier of language learning aptitude; it required that in the case of a person with a learning disability, the PSC fine-tune the process in order to eliminate what it found the MLAT did not address, i.e. the nature of the disability and the nature of the compensatory strategies used by the person with learning disabilities. That order flowed out of the evidentiary findings made by the Tribunal, was a reasonably connected remedy and was consistent with the approach laid out by the S.C.C. in Eaton and Eldridge in disability cases and Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84.
Whereas the applicant argued all of the remedies ordered by the Tribunal pursuant to section 53 of the Act must be rationally connected to the use of auditory discrimination testing of language learning aptitude, the Tribunal’s approach on Nancy Green’s award reflected the fact she was not able to gain access to the French language training program because of the adverse effects of the tests and what the Tribunal sought to remedy were the consequences — her non-promotion. There was an overall rational connection between the remedies ordered in favour of the respondent and the effects of the discrimination on her denied PM-6 position.
On the questions of remoteness and mitigation, the legal issues involved the principles established in Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401(C.A.) and in Canada (Attorney General) v. Uzoaba, [1995] 2 F.C. 569(C.A.). The applicant argued that the respondent failed to mitigate the damages by failing to undertake a vigorous job search at the earliest opportunity; to continue a job search; to continue remedial French language training; to take full-time French language training when offered. With respect to the promotion to the PM-6 level, guided by the serious possibility test in Morgan, the primacy principle, enshrined in section 82 of the Official Languages Act, the reasonably foreseeable promotion test and its application to the evidence formulated in Uzoaba, there is no question of remoteness. There was ample evidence to support this award by the Tribunal. Furthermore, on a balance of probabilities, what the respondent did or did not do after she was appointed to the PM-5 position in February 1989, does not disentitle her to a remedy under the Act.
The Tribunal’s order for lost wages in the amount of $69,895.25 was supported on the evidence and since Nancy Green returned to receiving a PM-5 salary in February 1989, this was the appropriate beginning point for wage loss compensation.
The applicant argued that subsection 62(1) of the Canadian Human Rights Act barred the Tribunal from dealing with any matter or question relating to a pension plan established before March 1, 1978. However, nothing in the Tribunal’s order touched, modified or affected the structural elements of the superannuation plan which the respondent was part of. The Tribunal clearly had the jurisdiction, on the principles of restitutio in integrum, to make the pension adjustment award (that the pension be adjusted to reflect her employment salary at the PM-6 level from February 21, 1989 to date).
The applicant argued that the Tribunal erred in concluding that the respondent be appointed to the bilingual position for which she competed and that she did not apply later for bilingual non-imperative positions. The applicant argued that this expenditure is normally only triggered by an operational requirement. The order that the respondent be admitted to French language training should not be disturbed. The evidence clearly supported the fact that she was denied access to LTP because of her learning disability and this closed the door to any further application for bilingual positions.
The applicant argued that the order to destroy records containing the respondent’s negative prognosis contravened subsection 5(1) of the National Archives of Canada Act. Effectively, the Tribunal did not have jurisdiction to order the destruction of the negative prognosis. The order is varied to impose an obligation upon the PSC to take whatever steps are necessary to ensure the confidentiality of the original prognosis and the retrieval of any copies of it which may have been made and are in circulation.
The applicant argued that the Tribunal erred in concluding that the respondent was denied management training due to the discriminatory practice of her employer. However, the Tribunal’s order that the respondent receive management training was ancillary to the Tribunal’s main finding, which is upheld, that she should be appointed to a PM-6 position. If she had been promoted to the PM-6 position, she would have had management training.
There was ample evidence before the Tribunal to enable it to reach the conclusion that, but for the discriminatory practice of the respondent’s employer, there was a reasonable likelihood that she would have bloomed further and promotions well beyond the PM-6 level would have moved the respondent along her career path. The Tribunal was justified in ordering her appointment at the EX-1 level at the first reasonable opportunity, after appropriate management training.
There was no reason to disturb the award of special compensation of $5,000 in view of the frustration and loss of respect which the evidence clearly indicated the past 10 years of dealing with systemic discrimination had caused the respondent.
The applicant challenged the award of compound interests on all amounts owing to the respondent on the ground that the award of compound rather than simple interest on lost wages was contrary to Morgan, and the interest on the special compensation was not permitted at law because the maximum amount of compensation could not exceed $5,000 under the statute. There was no evidence or circumstance that compound interest was required or justified herein. The award was varied to provide for simple interest on the amounts owing to Nancy Green, excluding interest on the special compensation awarded (the $5,000 award was the maximum allowable, therefore no interest could be provided for).
The Tribunal’s award of legal costs was struck. The applicant correctly argued that since there was no mention of legal costs in the Act, it was an indication that Parliament did not intend the Tribunal have the power to order the payment of legal costs.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 15, 16(1), 20(1)(a),(b).
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2 (as am. by S.C. 1998, c. 9, s. 9), 3 (as am. by S.C. 1996, c. 14, s. 2), 7, 10 (as am. by S.C. 1998, c. 9, s. 13), 15(1) (as am. idem, s. 10), (2) (as am. idem), 25, 53(1) (as am. idem, s. 27), (2) (as am. idem), (3) (as am. idem), (4) (as am. idem), 62(1).
Canadian Human Rights Act, S.C. 1976-77, c. 33.
National Archives of Canada Act, R.S.C., 1985 (3rd Supp.), c. 1, s. 5(1).
Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 21, 22, 32, 34, 35(1),(2), 46(1),(2), 82(1),(2), 91.
Official Languages (Communications with and Services to the Public) Regulations, SOR/92-48.
Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 10(1) (as am. by S.C. 1992, c. 54, s. 10), (2) (as am. idem), 12 (as am. by S.C. 1999, c. 31, s. 182).
Public Service Official Languages Exclusion Approval Order, SOR/81-787.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R.1; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 11 Admin. L.R. (3d) 1; 43 Imm. L.R. (2d) 117; 226 N.R. 201; amended reasons [1998] 1 S.C.R. 1222; (1998), 11 Admin. L.R. (3d) 130; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; (1996), 133 D.L.R. (4th) 1; 37 Admin. L.R. (2d) 131; Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793; (1997), 144 D.L.R. (4th) 577; 8 Admin. L.R. (3d) 89; 210 N.R. 101; Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 64 N.R. 161; 12 O.A.C. 241; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; (1997), 142 D.L.R. (4th) 385; 41 C.R.R. (2d) 240; 207 N.R. 171; 97 O.A.C. 161; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; (1997), 151 D.L.R. (4th) 577; [1998] 1 W.W.R. 50; 38 B.C.L.R. (3d) 1; 96 B.C.A.C. 81; 218 N.R. 161; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; (1987), 40 D.L.R. (4th) 577; 8 C.H.R.R. D/4326; 87 CLLC 17,025; 75 N.R. 303; Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401 (1991), 85 D.L.R. (4th) 473; 92 CLLC 17,002; 135 N.R. 27 (C.A.); Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391 (1990), 34 C.C.E.L. 179; 91 CLLC 17,011 (C.A.); Canada (Attorney General) v. Lambie (1996), 124 F.T.R. 303 (F.C.T.D.); Canada (Attorney General) v. Uzoaba, [1995] 2 F.C. 569 (1995), 94 F.T.R. 192 (T.D.); Foreman v. Via Rail Canada Inc. (1980), 1 C.H.R.R. D/233; Canada (Attorney General) v. McAlpine, [1989] 3 F.C. 530 (1989), 99 N.R. 221 (C.A.); Kelso v. The Queen, [1981] 1 S.C.R. 199; (1981), 120 D.L.R. (3d) 1; 35 N.R. 19; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255.
CONSIDERED:
Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; (1989), 59 D.L.R. (4th) 321; [1989] 4 W.W.R. 193; 58 Man. R. (2d) 161; 26 C.C.E.L. 1; 10 C.H.R.R. D/6183; 89 CLLC 17,012; 45 C.R.R. 115; 94 N.R. 373; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; (1990), 111 A.R. 241; 72 D.L.R. (4th) 417; [1990] 6 W.W.R. 193; 76 Alta. L.R. (2d) 97; 12 C.H.R.R. D/417; 90 CLLC 17,025; 113 N.R. 161; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; [1992] 6 W.W.R. 193; (1992), 71 B.C.L.R. (2d) 145; 13 B.C.A.C. 245; 16 C.H.R.R. D/425; 141 N.R. 185; 24 W.A.C. 245; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; (1999), 176 D.L.R. (4th) 1; [1999] 10 W.W.R. 1; 66 B.C.L.R. (3d) 253; 127 B.C.A.C. 161; 46 C.C.E.L. (2d) 206; 244 N.R. 145.
REFERRED TO:
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665; (2000), 185 D.L.R. (4th) 385; 50 C.C.E.L. (2d) 247; 253 N.R. 107; Department of National Health & Welfare v. Chandler et al. (1997), 29 C.H.R.R. D/300; Canada (Attorney General) v. Magee, [1998] 4 F.C. 546 (1998), 159 F.T.R. 198 (T.D.).
APPLICATION for judicial review of a decision of a Canadian Human Rights Tribunal ([1998] C.H.R.D. No. 5 (QL)) that the Treasury Board and the Public Service Commission discriminated on the ground of disability (form of dyslexia) against Nancy Green when she was denied entry into its full-time French language training program on the basis of a negative prognosis following testing and evaluation by the Commission. Application allowed in part.
APPEARANCES:
S. Ronald Stevenson and Lysanne K. Lafond for applicant.
Nancy Green on her own behalf.
Margaret Rose Jamieson for respondent C.H.R.C.
SOLICITORS OF RECORD:
Deputy Attorney General of Canada for applicant.
Canadian Human Rights Commission for respondent C.H.R.C.
The following are the reasons for order rendered in English by
Lemieux J.:
A. INTRODUCTION
[1] The central issue in this judicial review proceeding launched by the Attorney General of Canada (AG) from a decision of a Canadian Human Rights Tribunal [[1998] C.H.R.D. No. 5 (QL)] (the Tribunal) is whether Treasury Board (TB) or Treasury Board Secretariat (TBS) and the Public Service Commission (PSC) discriminated on the prohibited ground of disability against Nancy Green, a member of the Public Service of Canada, contrary to the provisions of the Canadian Human Rights Act [R.S.C., 1985, c. H-6] (the Act) when she was denied entry into its full-time French language training program (LTP), on the basis of a negative prognosis following testing and evaluation by the PSC.
[2] As a result of not gaining entry into the LTP, Nancy Green was not appointed to the PM-6 bilingual non-imperative position of Manager, Employment Equity Consulting Services for the Ontario Region, a position classified by her Department, Employment and Immigration Commission (EIC) (now Human Resources Development Canada) (HRDC) requiring a language proficiency profile of BB/C (B for reading and writing and a level C, the highest, for oral communication). Nancy Green had placed first for this position in a closed competition.
[3] A position classified as bilingual non-imperative means that a successful candidate need not initially meet this occupational requirement but must reach the required linguistic proficiency level within a specified period of time as set out in Treasury Board’s Official Language Training Policy (OLTP) through full-time language training during working hours provided at public expense.
[4] Access to full-time language training by the Government of Canada is not guaranteed to every candidate successful in competition. Only those candidates who receive a positive prognosis will gain access. A positive prognosis is a determination by the PSC that a candidate will likely be successful in reaching the required second language proficiency level through full-time language training within the time allowed in Treasury Board’s OLTP.
[5] A positive or negative prognosis is arrived at by the PSC through its orientation process which consists of:
(a) a language proficiency test to establish how well a candidate reads, writes and speaks at the time the test is administered;
(b) a language aptitude test consisting of the Modern Language Aptitude Test (MLAT) and two Pimsleur subtests (Pimsleur) to establish a person’s second language learning abilities and;
(c) an interview with a counsellor which explores the test results and the factors which might have affected the results. It is the PSC counsellor who, after the interview, makes the positive or negative prognosis which, before it is communicated, is reviewed internally.
[6] More particularly, the MLAT and Pimsleur tests assess a person’s learning abilities (capacity or potential to learn a second language) within a cost effective time frame (Tribunal decision, page 4 [paragraphs 14-17]) and its purpose is to create a measure of a check in training expenses because that training is at government cost with the candidate learning full-time. These tests are based on predictors of the ability to learn second language including sound/symbol discrimination, rote memory for speech sounds, and grammatical structure.
[7] The MLAT was created in the United States by Dr. John B. Carrol who used seven factors to evaluate a person’s potential to learn a foreign language:
(1) verbal knowledge
(2) linguistic interest
(3) associative memory
(4) sound symbol association
(5) inductive learning ability
(6) grammatical sensitivity
(7) speed of association
B. THE CENTRAL FACTS
[8] Many of the essential facts in this judicial review application are not in dispute.
[9] Nancy Green joined the federal Public Service in 1975 as a manpower counsellor at the PM-2 level after obtaining her honours bachelor of science degree in Kinesiology from the University of Waterloo in 1973. She progressed very well in her career and, by February 1987, she was the Acting Director of Job Entry, a PM-5 level position with the EIC.
[10] In August 1987, she participated in the closed competition for the PM-6 bilingual non-imperative position noted above with the BB/C linguistic profile. She was rated first by the Selection Board in knowledge, ability and personal suitability and went through the PSC’s orientation process in late December 1987/January/88 in order to enable the PSC to formulate a prognosis of her likely success in learning French through full-time training at the required proficiency level and within the specified time by Treasury Board in the OLTP. At the time, 1560 hours was the allotted time.
[11] On December 31, 1987, Nancy Green took the MLAT and Pimsleur tests requiring oral and written responses in a language lab using earphones. She did not do well on some of those tests; her scores on the auditory section ranked her in the bottom five percentage of candidates, well below the area of acceptance into the second language program set by the LTP (Tribunal decision, page 15 [paragraph 56(5)]).
[12] Nancy Green was also tested on how well she currently spoke, wrote and read French; her current knowledge was very low. She would have to start training as a beginner at lesson 1.
[13] Nancy Green was interviewed for over two hours on January 5, 1988, by PSC Orientation Counsellor Françoise Thexton who testified before the Tribunal and said the purpose of the interview was to interpret the test results, explore the learning strategies of the candidate and determine whether or not the candidate would be able to reach the level of language required in the time allowed and, if so, recommend the best approach.
[14] At the end of the interview, she informed Nancy Green she would be given a negative prognosis because she felt Nancy Green could not reach level BB/C in the maximum time allowed. She advised her, since Nancy Green had told her it was very important for her career to acquire French, to take evening courses and come back later in order to get a positive prognosis and try to get a lower target of BB/B instead of BB/C which is difficult to attain. She recommended a class that could be slow and structured and would have a lot of visual support.
[15] During the interview, Mrs. Thexton indicated to Nancy Green she believed, from the responses she had made on the tests, she might be a person with a learning disability.
[16] Mrs. Thexton’s negative prognosis was reviewed on January 13, 1988, by Noël Joyal, a Regional Manager of Language Training at the PSC. After looking at the whole file, he confirmed Mrs. Thexton’s negative prognosis. He was of the view Ms. Green had a serious problem decoding, i.e. going from sound to symbol or symbol to sound to meaning; that the total of the test results was low and did not reveal any compensatory factors. He said her rate of learning would be very slow because she had no present knowledge of French and would have to start at lesson 1.
[17] Notwithstanding the negative prognosis, Nancy Green was placed by EIC in the acting PM-6 Manager, Employment Equity Manager position on January 8, 1988.
[18] Nancy Green and EIC followed up on the notion that she might have a learning disability. Arrangements were made for her to be tested on March 7 and 10, 1988 by Dr. Berenice Mandelcorn, a registered psychologist in Toronto who provided a psycho-educational assessment on March 24, 1988. In her report, she indicated the reason for referral was that Nancy Green requested this assessment as a prerequisite for employment promotion and would like information regarding her potential for learning the French language.
[19] Dr. Mandelcorn found Nancy Green a highly intelligent and presentable woman with high average intellectual potential but was having problems achieving her full potential because of a learning disability or dyslexia affecting auditory processing functioning, i.e. auditory discrimination and rote auditory memory and sequencing skills. Dr. Mandelcorn found she has done remarkably well with this learning problem and had developed compensatory strategies through her strengths in language and visual processing skills. Dr. Mandelcorn commented that Nancy Green’s admirable perseverance and determination have also been great assets to her.
[20] Dr. Mandelcorn said Nancy Green, academically, was functioning very well and given her high intellectual potential, language skills and learning style, concluded there is every indication that she can successfully learn French. However, in order to achieve her potential, she needs certain considerations, i.e. one-on-one instruction, no time limits, a lot of context and the opportunity to make use of her strengths and well-developed strategies. Dr. Mandelcorn indicated she showed wonderful potential and determination and should be successful in almost any area she chooses.
[21] Dr. Mandelcorn’s recommendation was as follows:
As Ms. Green has dyslexia, she cannot learn the French language in the usual way. Consequently, she needs several considerations in order to reach the desired goal, i.e. 1-1 direction, a lot of context, no time limits and the opportunity to utilize her strengths in language and visual processing. [Respondents’ record, vol. II, pp. 266 and 267 emphasis mine.]
[22] On April 18, 1988, under a subject-matter heading “Request for Special Consideration” EIC’s Director of Personnel in Toronto sent Dr. Mandelcorn’s report to Ms. Vera McLay, Director, Official Languages Secretariat, Staffing Programs Branch, at the PSC in Ottawa. Norm Button wrote this:
I believe that this is a most unusual situation particularly given EIC’s demonstrated commitment to Employment Equity issues and the co-incidence of the position that Ms. Green has qualified for, with the exception of language. Clearly, an exclusion from meeting the language requirements of this position is inappropriate. Additionally, there does not appear to be any need to extend the exemption period for language training. Yet, these are the only options available to departments at least according to the Personnel Management Manual, volume 6, chapter 8-4.
It seems to me that what is required is some accommodation for Mrs. Green in the context of the language training that she requires. These accommodations may take the form of a different method of instruction and dependent upon the method, the period of instruction.
With the evidence that we now have of her abilities, I am certain that you will agree that this case is an excellent opportunity for both your Commission and ours to confirm our commitment to target group members. [Respondents’ record, vol. I, tab 2; emphasis mine.]
[23] Vera McLay’s letter back to Norm Button is in the respondents’ record, volume I, tab 3. She responded to Mr. Button on June 29, 1988, indicating the delay in responding was due to having explored every possible means available under the Public Service Official Languages Exclusion Approval Order [SOR/81-787] (the Exclusion Order) the legal instrument that permits the appointment of unilingual persons to bilingual positions. Noting that changes were made to the Exclusion Order in 1981, when the Government’s official languages policies were amended to limit access to language training, hence to bilingual positions staffed non-imperatively, to those candidates who demonstrate sufficient potential to learn their second official language within the maximum training time allowed by Treasury Board, Ms. McLay identified two exceptions allowing the appointment of certain candidates in spite of a negative prognosis, namely, an override to a negative prognosis or a pre-appointment (as opposed to post-appointment) exclusion on compassionate grounds adding this:
The possibility of granting unlimited language training time to a candidate with low aptitude was rejected since that would defeat the main purpose of the Government’s revised access policies—namely to make language training more cost effective. [Emphasis mine.]
[24] In that letter Ms. McLay went on to discuss the criteria for each of these two mechanisms and said that unfortunately, Nancy Green did not meet either of the criteria acknowledging the possibility of making a case for an exemption on compassionate grounds seemed at first more promising. In her letter, Ms. McLay said the purpose of pre-appointment compassionate exclusions was to ensure that the requirement to demonstrate aptitude should not create a systemic barrier to the appointment of physically (or less frequently, psychiatrically) disabled people. In this respect, she said the PSC’s role is to ascertain whether a candidate’s disability is indeed such that it would prevent that person from demonstrating sufficient aptitude (e.g. deafness, blindness, etc.).
[25] Ms. McLay emphasized to Mr. Button it was never the intent of the Government’s 1981 official languages policies nor the Commission’s Exclusion Order to grant exclusions because of a candidate’s low aptitude. She made a point of this because some people hold the opinion that, since low aptitude can be considered a type of learning disability, it should be added to the list of disabilities that are considered grounds for exclusion. She expressed the view that neither TBS nor the PSC shares that opinion adding whether one accepts the definition of low aptitude as a learning disability is irrelevant since the issue is the intent of Government policies. She said the PSC’s detailed examination of the case did not reveal any disability that would justify granting an exclusion adding that the psychologist’s report merely confirms the results of the orientation process, mainly that Ms. Green has a low aptitude for learning a second language (or as the psychologist prefers to phrase it, a language learning disability).
[26] After expressing herself in this way, Vera McLay said Nancy Green’s low auditory discrimination skills had the potential to meet the Commission’s criteria for an excludable disability but concluded:
While poor auditory discrimination per se is not grounds for exclusion, it can sometimes indicate a more serious hearing impairment that can constitute sufficient grounds. When Ms. Green’s hearing was tested, however, the results showed that she does not have such an impairment.
[27] The upshot of Vera McLay’s letter was to say to Nancy Green’s Department it could not maintain her name to the eligibility list for appointment and in closing added a negative prognosis merely indicated a person needs more language training time than the maximum allowed at government expense for the target level and Nancy Green might obtain a positive prognosis for a lower target level or she could take, on her own time, sufficient language training to obtain a positive prognosis on the orientation process the next time she applies for a bilingual position.
[28] Notwithstanding this negative response, Nancy Green and her Department continued their efforts.
[29] EIC’s Ontario Regional Director wrote to its Executive Director on July 20, 1988, challenging the interpretation of “learning disability” expressed by Vera McLay because it fails to consider the implications that using the standard diagnostic test in such a case may not even assess the candidate’s aptitude as it sets out to do because just as an audio-taped test would not permit fair and adequate assessment of the qualifications of a person with a hearing disability, the standard diagnostic test format may not adequately assess the qualifications of a person with a learning disability. (Respondents’ record, vol. I, tab 4.)
[30] The Regional Director for Ontario added that in Nancy Green’s case there would appear to be a number of options for accommodating her disability including modifying the diagnostic test format to ensure it competently factors in her handicap; excluding her from the requirement to take the test; and/or modifying the language training methodologies and/or time frames to facilitate effective, adequate levels of learning adding that Dr. Mandelcorn suggested that modified training methodologies would likely permit her to learn her second language given her demonstrated ability in adapting her learning skills in other areas.
[31] The thrust of the Executive Director’s August 4, 1988 response was to say that the whole question of limits on access to language training fell under the exclusive authority of TB who, in October 1981, when it revised its access policies in the interest of cost effectiveness, said all appointees requiring language training must have demonstrated their potential to learn their second official language within the maximum training time allowed. He noted Nancy Green’s case was not unique and that each year, since 1981, has seen, on average, some 280 “otherwise-qualified” candidates whose appointments were denied for the same reason as in her case. He mentioned the efforts had been made over the years, both at Branch and Commission levels, to make TBS aware of the negative impacts and perceived inequities of these access policies. He indicated that complaints on the subject have diminished over the years as departments “have either accepted the policy or found practical means of coping with the access rules (some of which, I believe, Vera shared with you)”. He concluded by saying such means are too late in Nancy Green’s case.
[32] The respondents’ record reveals continued correspondence from EIC to seek a solution to Nancy Green’s situation including efforts in October 1988 to retain Dr. Ford.
[33] EIC funded Nancy Green’s outside of working hours language training; Nancy Green followed two separate programs of French learning instruction: a private tutorial from September 1988 through December 1988 and PSC evening courses for approximately four months in early 1989.
[34] In December 1988, Nancy Green received confirmation her position as Acting Manager, Employment Equity, would end and she would not be considered for the position as she could not meet the language qualifications. The position was filled by the appointment of a surplus employee notwithstanding a Public Service Appeal Board decision in February 1988 requiring a new competition for this position be held.
[35] In February 1989, Nancy Green was appointed as an Industrial Consultant, Adjustment Services, at HRDC, at the PM-5 level. She is at this level today.
[36] The matter does not end there. At the request of EIC, Dr. W. G. Ford tested Nancy Green in the summer of 1989. On September 18, 1989, Dr. Ford provided a dual-language assessment report (respondents’ record, vol. II, tab 48) whose purpose was “to obtain an independent evaluation of whether she possesses the learning abilities and potential to learn French as a second language. An opinion as to the degree and nature of French language training which Ms. Green would require was also requested”. (Emphasis mine.)
[37] Dr. Ford noted in his report she had taken private tutorials and had attended the PSC evening courses and that her tutors “found her to have a higher than average capacity to learn French, enhanced by her `high motivation and hard work’.” Dr. Ford noted Nancy Green had no formal French language training since her core French courses in high school, over twenty years ago.
[38] Dr. Ford had been provided with Dr. Mandelcorn’s March 1988 assessment. He assessed Nancy Green’s language learning skills; he conducted that assessment primarily in French and tested her skills in three areas, namely, oral communication, reading and written expression. Dr. Ford’s overall assessment in terms of Nancy Green’s French language level and ability was that she was currently functioning at an advance-beginner level noting strengths were evident in her “excellent oral and reading comprehension skills”.
[39] Dr. Ford found Nancy Green had a form of “dyslexia”, a “fairly classical expression of a memory based Learning Disability which affects the initial learning of rote auditory details, such as, sound-symbol, correspondence and sequencing”. (Emphasis mine.) He observed that auditory memory and sequencing skills facilitate the learning of phonetic decoding and pronunciation. He reported language and educational research on second language learning concludes learners with this form of learning disability experience difficulties with initial auditory components while learning literacy in both their mother tongue and second language. He added available research point out that the ability of an individual with a learning disability to master a second language, conversationally and grammatically, is not impaired and the selection of instrumentation to determine an individual’s potential for second language learning is a critical factor to take into account when testing a person with dyslexia because, since the individual will experience predictable struggle discriminating and remembering auditory elements and sequences presented in isolation and without meaningful contacts, an accurate account of their actual ability and potential to learn a second language in a meaningful way is not obtained. He concluded as follows:
… the testing materials currently used by the Training Programs Branch of the Public Service Commission to determine second language potential discriminate against individuals with learning disabilities (such as Ms. Green’s) and do not provide a valid indication of their actual second language potential. [Respondent’s record, vol. II, tab 48, p. 282.]
[40] In 1995, Dr. Ford retested and re-evaluated Nancy Green. Dr. Ford was asked by TBS to reassess Nancy Green in order to identify the most effective training method for Nancy Green and to give an opinion as to her chances of success with that method. Dr. Ford found that Nancy Green should be considered an exceptional learner whose cognitive profile is characterized by notable abstract reasoning and language strengths which are compromised by a rote and “working” auditory memory learning disability but that she had developed a natural array of effective, compensatory strategies to facilitate her comprehension and competent recall of information during new learning. Dr. Ford found that Nancy Green should be considered a candidate for French language training which utilizes a dynamic, conversational, whole-language approach because her disability is incompatible with a teaching approach that draws primarily from auditory rote learning. Dr. Ford made specific recommendations on the optimal teaching strategy for Nancy Green.
[41] On September 4, 1989, Nancy Green filed two complaints with the Canadian Human Rights Commission (CHRC). The first complaint is directed against the Treasury Board alleging it is engaging or has engaged in a discriminatory practice on or about “October 1981 and ongoing” on the ground of disability in contravention of the Act. Nancy Green gave the following particulars which are found in respondents’ record, vol. 1, tab 18:
Treasury Board has discriminated against me and people like me by establishing a policy that deprives or tends to deprive me or people like me of employment opportunities on the basis of a disability (dyslexia in auditory processing) in contravention of section 10 of the Canadian Human Rights Act.
The respondent has established a policy that places limits on access to language training. This policy states that all appointees requiring language training have had to demonstrate their potential to learn their second language within the maximum training time allowed.
Because of my learning disability, I failed to meet the requirements of the French language training.
This decision prevented me from assuming a bilingual non-imperative PM-6 position for which I was otherwise qualified.
The respondent did not consider the needs of the employees when this policy was devised. [Emphasis mine.]
[42] Nancy Green’s second complaint was directed to the PSC alleging it engaged or has engaged in a discriminatory practice on or about December 30, 1987 and January 5, 1988, on the ground of disability contrary to the Act. The following particulars were provided:
The Public Service Commission of Canada has discriminated against me in the provision of services by treating me differently on the basis of a disability (dyslexia in auditory process) in contravention of section 5 of the Canadian Human Rights Act.
[43] On November 30, 1989, this complaint against the PSC was amended in terms of its particulars.
The Public Service Commission of Canada has discriminated against me in my employment by treating me differently on the basis of a disability (dyslexia in auditory process) in contravention of section 7 of the CHRA.
I began work for the Government of Canada on November 2, 1975. I currently hold the position of PM-5 in Canada Employment and Immigration Commission.
In January 1987, I applied for a PM-6 position—Manager, Employment Equity Consulting Service, within the Federal Government. I was required to undertake a series of tests and interviews at the end of which I emerged one of the successful candidates. However, myself and two other candidates had to be either found to meet the basic requirements of language, i.e. knowledge of the English and French languages or to come within the terms of the Public Service Official Languages Exclusion Approval Order, since the position under competition was designated as bilingual non-imperative.
On January 5, 1988, I was informed by the respondent that I had negative prognosis in respect of my ability to learn the French language. Because of this negative prognosis, my name was not placed on the list of successful candidates for the PM-6 position.
This was due to my dyslexia which prohibits my ability to process language with which I am not familiar.
On February 10, 1989, I appealed to the Public Service Appeal Tribunal, and on February 21, 1989, the Tribunal allowed my appeal.
…
I allege that the results from the Aptitude Test is not a fair measure of my potential. In addition, the respondent does not consider the individual needs of its clients when providing language testing. [Respondent’s record, p. 206; emphasis mine.]
C. THE APPLICABLE LEGISLATION
(a) The Canadian Human Rights Act
[44] The relevant provisions of the Canadian Human Rights Act are its purpose (section 2 [as am. by S.C. 1998, c. 9, s. 9]); the prohibited grounds of discrimination (section 3 [as am. by S.C. 1996, c. 14, s. 2]); what constitutes a discriminatory practice or policy (sections 7 and 10 [as am. by S.C. 1998, c. 9, s. 13]); exceptions to discrimination (section 15 [as am. idem, s. 10]); the meaning of disability (section 25); the powers of the Tribunal (section 53 [as am. idem, s. 27]). Some of these provisions were amended subsequent to the Tribunal’s decision. These provisions today read:
2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
…
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
…
10. It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
…
15. (1) It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;
…
(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
…
25. In this Act,
“disability” means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.
…
53. (1) At the conclusion of an inquiry, the member or panel conducting the inquiry shall dismiss the complaint if the member or panel finds that the complaint is not substantiated.
(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing a plan under section 17;
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;
(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and
(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.
(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.
(4) Subject to the rules made under section 48.9, an order to pay compensation under this section may include an award of interest at a rate and for a period that the member or panel considers appropriate.
(b) The Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]
[45] Section 16 declares the official languages of Canada and section 20 deals with communication by the public with federal institutions as follows:
16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
…
20. (1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
(a) there is a significant demand for communications with and services from that office in such language; or
(b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.
(c) The Official Languages Act [R.S.C., 1985 (4th Supp.), c. 31] (OLA)
[46] Part IV of the OLA is entitled “Communications with and Services to the Public”; Part V concerns language of work; Part VIII confers upon Treasury Board responsibilities and duties in relation to the OLA and Part XI contains general provisions such as the primacy of the OLA over other statutes (section 82) and section 91 concerns staffing. The relevant sections of Part IV (sections 21 and 22); Part V (sections 34 and 35); Part VIII (section 46) and sections 82 and 91 of the OLA read:
21. Any member of the public in Canada has the right to communicate with and to receive available services from federal institutions in accordance with this Part.
22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities
(a) within the National Capital Region; or
(b) in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language.
…
34. English and French are the languages of work in all federal institutions, and officers and employees of all federal institutions have the right to use either official language in accordance with this Part.
35. (1) Every federal institution has the duty to ensure that
(a) within the National Capital Region and in any part or region of Canada, or in any place outside Canada, that is prescribed, work environments of the institution are conducive to the effective use of both official languages and accommodate the use of either official language by its officers and employees; and
(b) in all parts or regions of Canada not prescribed for the purpose of paragraph (a), the treatment of both official languages in the work environments of the institution in parts or regions of Canada where one official language predominates is reasonably comparable to the treatment of both official languages in the work environments of the institution in parts or regions of Canada where the other official language predominates.
(2) The regions of Canada set out in Annex B of the part of the Treasury Board and Public Service Commission Circular No. 1977-46 of September 30, 1977 that is entitled “Official Languages in the Public Service of Canada: A Statement of Policies” are prescribed for the purpose of paragraph (1)(a).
…
46. (1) The Treasury Board has responsibility for the general direction and coordination of the policies and programs of the Government of Canada relating to the implementation of Parts IV, V and VI in all federal institutions other than the Senate, the House of Commons and the Library of Parliament.
(2) In carrying out its responsibilities under subsection (1), the Treasury Board may
(a) establish policies, or recommend policies to the Governor in Council, to give effect to Parts IV, V and VI;
(b) recommend regulations to the Governor in Council to give effect to Parts IV, V and VI;
(c) issue directives to give effect to Parts IV, V and VI;
(d) monitor and audit federal institutions in respect of which it has responsibility for their compliance with policies, directives and regulations of Treasury Board or the Governor in Council relating to the official languages of Canada;
(e) evaluate the effectiveness and efficiency of policies and programs of federal institutions relating to the official languages of Canada;
(f) provide information to the public and to officers and employees of federal institutions relating to the policies and programs that give effect to Parts IV, V and VI; and
(g) delegate any of its powers under this section to the deputy heads or other administrative heads of other federal institutions.
…
82. (1) In the event of any inconsistency between the following Parts and any other Act of Parliament or regulation thereunder, the following Parts prevail to the extent of the inconsistency:
(a) Part I (Proceedings of Parliament);
(b) Part II (Legislative and other Instruments);
(c) Part III (Administration of Justice);
(d) Part IV (Communications with and Services to the Public); and
(e) Part V (Language of Work).
(2) Subsection (1) does not apply to the Canadian Human Rights Act or any regulation made thereunder.
…
91. Nothing in Part IV or V authorizes the application of official language requirements to a particular staffing action unless those requirements are objectively required to perform the functions for which the staffing action is undertaken.
(d) The Official Languages (Communications with and Services to the Public) Regulations [SOR/92-48]
[47] These Regulations made by the Governor in Council under section 32 of the OLA were adopted in 1991. They define the concept of English and French linguistic minority population, significant demand and contain other provisions which need not be reproduced here.
(e) The Public Service Employment Act [R.S.C., 1985, c. P-33] (PSEA)
[48] Section 10 [as am. by S.C. 1992, c. 54, s. 10] of the PSEA provides that appointments to the Public Service of Canada shall be based on merit and section 12 [as am. by S.C. 1999, c. 31, s. 182] authorizes the Public Service Commission to establish non-discriminatory standards. These provisions read:
10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.
…
12. (1) For the purpose of determining the basis for selection according to merit under section 10, the Commission may establish standards for selection and assessment as to education, knowledge, experience, language, residence or any other matters that, in the opinion of the Commission, are necessary or desirable having regard to the nature of the duties to be performed and the present and future needs of the Public Service.
(2) No standard established under subsection (1) shall be inconsistent with any classification standard established under the Financial Administration Act.
(3) The Commission, in establishing or applying standards under subsection (1), shall not discriminate against any person by reason of race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
(4) Subsection (3) does not apply in respect of the establishment or application of standards that constitute bona fide occupational requirements having regard to the nature of the duties of any position.
(5) The Commission shall, on request or where, in the opinion of the Commission, consultation is necessary or desirable, consult with representatives of the Treasury Board or any employee organization certified as a bargaining agent under the Public Service Staff Relations Act with respect to the standards that may be established by the Commission under subsection (1) or the principles governing promotion, lay-off or priorities of entitlement to appointment.
D. THE TRIBUNAL’S DECISION
[49] The Tribunal found discrimination based on disability, no accommodation and ordered wide- ranging remedies. The Tribunal made the following factual findings and inferences.
[50] The Tribunal found that Françoise Thexton, the PSC Orientation Counsellor, had indicated to Nancy Green during the interview she suspected she might be a person with a learning disability and this was Ms. Green’s first indication she might have a problem.
[51] The Tribunal found Dr. Mandelcorn diagnosed Nancy Green “as an individual with a specific learning disability ‘dyslexia affecting auditory processing functioning, i.e. auditory discrimination and rote auditory memory and sequencing skills’”. (Tribunal decision, page 6 [paragraph 24].)
[52] The Tribunal found that almost immediately upon receipt of Dr. Mandelcorn’s report and the diagnosis of Nancy Green’s learning disability, her Department commenced its attempts to accommodate her entry into the second language training program in spite of her negative prognosis and these efforts were all based on her Department’s acceptance of Dr. Mandelcorn’s diagnosis of Nancy Green’s learning disability.
[53] The Tribunal found her Department was not able to communicate that acceptance to the PSC personnel who took the position that the result of the orientation process and the language aptitude test in particular simply indicated a low aptitude for second language training and this low aptitude was the reason for the negative prognosis. It found the Mandelcorn report and the diagnosis of the learning disability were discounted by the PSC being merely another way of saying that Nancy Green had a low aptitude for learning a second language. (Tribunal decision, pages 6-7 [paragraphs 22-29].)
[54] The Tribunal referred to Dr. Ford’s diagnosis in September 1989 drawing attention to his testimony before it that “in a short period of time, Nancy Green had learned competence in terms of reading, writing, and oral communication French to the equivalent of a grade 5 to 7 range”. The Tribunal found that Nancy Green’s ability to learn French had taken her from a position of no French to the level of a grade 5 to 7 student of French during her part-time French language instruction in 1988 and 1989. (Tribunal decision, page 7 [paragraph 28].)
[55] The Tribunal recognized becoming bilingual was one of the qualifications of the PM-6 position Nancy Green had successfully competed for but would not be eligible for the PM-6 position if the negative prognosis made her ineligible to participate in full-time training to become bilingual.
[56] The Tribunal then proceeded to discuss the law and to make its analysis. Relying upon Supreme Court of Canada jurisprudence, it determined the Act and its disability anti-discriminatory provisions should be interpreted in a purposeful way and be given such fair, large and liberal interpretation as will best ensure that its objects are attained because human rights legislation is of a special nature, not quite constitutional but certainly more than ordinary, quoting from Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536.
[57] The Tribunal adopted the following definition of discrimination taken from Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, at pages 1234-1235:
… discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society. [Emphasis mine.]
[58] The Tribunal, at page 12 [paragraph 47] of its decision, drew the distinction between direct discrimination and adverse effect discrimination. Citing Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at page 505, it said that direct discrimination occurs “where an employer adopts a practice or rule which on its face discriminates on a prohibited ground”. Adverse effect discrimination “arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristics of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force”.
[59] Referring to Wilson J.’s decision in Alberta Dairy Pool, supra, [at pages 506-507] the Tribunal noted she further elucidated that “an employment rule honestly made for sound economic and business reasons equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply” and that the working rule to which the duty of accommodation applies need not be “reasonably necessary”, i.e. it need not be a BFOR but need only be “a condition or rule rationally related to the performance of the job”.
[60] The Tribunal then discussed the standard and burden of proof. It said that the parties agreed that, in a case of this nature, the burden of proof is on the complainant to establish [at page 13, paragraph 51] “on a balance of probabilities, a prima facie case of discrimination”. In a case of adverse effect discrimination, once the complainant has established a prima facie case, the onus shifts to the respondent to show accommodation.
[61] The Tribunal accepted the following definition of a prima facie case from the O’Malley, supra, [at page 558] case as follows:
… one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer.
[62] In its analysis, the Tribunal noted that before full-time training can begin, candidates are assessed for language aptitude to assure potential success in the second language training program and said, in this context, it was important it look closely at the language aptitude tests used in the orientation process and quoting from the evidence of Mrs. Thexton, described those tests in detail (at pages 17-18 [paragraphs 62-63]) of its decision as follows:
MLAT
(i) Number learning
- heard in the Kurdish language
- tests short term memory of sounds heard
- moves very quickly
- demands an ability to sequence using auditory skills
(ii) Phonetic script
- heard in a phonetic language which has been designed especially for the test
- measures ability to associate sounds and symbols
- requires an ability to remember sounds with no known meaning
(iii) Spelling clues
- measures sound/symbol association where meaning is added
- very high speed testing
(iv) Words in sentences
- measures sensitivity to grammatical structure
- requires intuitive feel for grammar
(v) Paired associates
- heard in Kurdish language
- measures short term and random memory
- uses a visual foundation by associating Kurdish sounds with their English meanings.
These subtests are weighted for the final scoring; parts (iii) and (iv) are given extra weight when scoring.
PIMSLEUR TEST (subtests 5 and 6, only)
(5) - tests sound (specifically tone) discrimination
- uses an African language
(6) - tests coding/association between sound and symbol
- uses “nonsense” words.
[63] After this description, the Tribunal concluded (at pages 18-19 [paragraphs 64-67]) the following:
As noted above, the tests appear to concentrate mostly upon auditory sequencing, and sound/symbol association. Dr. Ford, the psychologist who tested and in 1995 re-tested Ms. Green and who gave expert evidence regarding learning disabilities, and Ms. Green’s learning disability specifically, took “exception with the language testing process which defines ‘aptitude’ very narrowly within the domain of auditory memory sequencing. Their definition of `aptitude’, I feel, is very limited and hence restrictive and discriminatory to people with auditory processing disorders”. (Transcript, p. 686). His evidence indicated that persons with learning disabilities have often developed compensatory strategies. In testing situations or “situations of new learning, the use of [these] compensatory strategies requires more time”. (Transcript, p. 680). He also indicated that a person with a learning disability may not even be aware of using a compensatory strategy.
Dr. Ford’s assessments of Ms. Green had indicated that the compensatory strategies which she had created, unbeknownst to herself, included requesting clarification of knowledge being imparted to her, repeating knowledge, and working with great care and attention.
He indicated in his evidence that these strategies are “very effective in situations in which time is not a critical element … learning can be new learning or learning can be using your existing knowledge base to problem-solving (sic). In situations of new learning, the use of compensatory strategies requires more time. In situations where you’re co-ordinating and working with information that you have already, the amount of additional time is not necessarily excessive or beyond. In terms of learning something for the first time, if you have the opportunity to use a strategy, then you can cut down on the times as well”. (Transcript, p. 680-81).
Dr. Ford indicated in his evidence that, based upon his assessments of her, he concluded that Ms. Green had developed strategies which had allowed her to learn to such an extent that she had been unaware of her disability, and of the strategies which she used, until she was assessed in 1988. [Emphasis mine.]
[64] The Tribunal quoted from the evidence given by Mr. Denis Petit, a witness for the PSC, in which he described the language aptitude tests as follows: (at page 20 [paragraph 73]) [translation] “it is not a language test as such. It is an aptitude test that evaluates the clients’ abilities or aptitudes to reach”. The Tribunal said that Mr. Petit also noted the MLAT and the portions of the Pimsleur tests which were used [at page 20, paragraph 74]:
[translation] … “studies the sounds, the perception of sounds, the comprehension of sounds, distinction when languages are spoken in that way … distinguishing sounds … to verify the candidates’ auditory acuity, auditory discrimination we call it, the ability to recognize various sounds … the candidates’ coding and decoding abilities … the ability, the sensitivity to grammar … to identify the functions of a sentence … aims to assess rote memory, short-term memory.”
[65] The Tribunal then described the testimony of Dr. Georges Sarrazin, a psychologist registered in Ontario and Quebec and a full professor of psychology at the University of Ottawa who was the government’s expert witness in the area of test construction, measurement, assessment, evaluation and development giving extensive factual and opinion evidence about the tests used by the PSC in its selection of candidates for second language training. At page 21 [paragraph 78] of its decision it quoted Dr. Sarrazin saying the MLAT had been designed chiefly “`to provide an indication of an individual’s probable degree of success in learning a foreign language’ according to the introduction to its own Manual”. It also quoted Dr. Sarrazin to the effect its design was also useful “if you want to be able to identify the difficulties … you take each of the subtests individually… so that you can identify what are the deficiencies”. The Tribunal said Dr. Sarrazin concluded that not only is this test helpful in making a prognosis of success, but also that it can be used as a diagnostic tool to point out to teachers a particular student’s special needs, if any.
[66] The Tribunal referred to the compilation of articles he had gathered and had submitted in evidence to give an overview of the history of the MLAT, including its validity and evolving use. It found at page 21 [paragraph 79] of its decision:
Although his opinion is that the MLAT is the best predictor of success in second language training with a limited time-frame, a number of the articles which he cited in his evidence appear not to have shared that opinion.
[67] The Tribunal then quoted extensively from the various articles and said the creator of the MLAT had “identified phonetic coding ability, grammatical sensitivity, and inductive ability as among the predictors of success in learning a foreign language in an allotted time. These abilities are the abilities which are the basis for the MLAT”. (Tribunal decision at page 23 [paragraph 85].)
[68] After finding the orientation process was the child of the PSC who is charged with the implementation of the Treasury Board policy concerning second language training, it held at page 23 [paragraph 86] “[T]he language testing portion, however, appears to be the most relevant for potential candidates for the language training program. A candidate’s standing on the tests is crucial to the decision to allow one to proceed to training”.
[69] The Tribunal concluded (at page 23 [paragraph 87]) “[o]n their face, the language aptitude tests are constructed so that no one candidate has a better chance than another. The use of the Kurdish language and nonsense words is an attempt to create equality amongst candidates”. The Tribunal then framed the issue before it as being [at page 23, paragraph 88]:
The issue is whether the almost exclusive use of auditory discrimination testing as the basis for the test of an aptitude to learn another language has inadvertently created a discriminatory practice against persons who have a learning disability, especially in the auditory discrimination area. [Emphasis mine.]
[70] The Tribunal gave its answer at page 24 [paragraphs 90-93]:
The answer is clearly yes. The Complainant presented evidence which shows that the language aptitude tests chosen for use in the Orientation Process as the basis for selecting persons with an aptitude to learn a second language within an allotted time-frame (those with a “positive prognosis”) rather than those with a low aptitude for such learning (those with a “negative prognosis”) test the very skills which persons who have the specific learning disability known as dyslexia in auditory process do not have.
Has the Complainant, therefore, met the burden of establishing a prima facie case? Yes. Ms. Green, who has been diagnosed with the specific learning disability, dyslexia in auditory process, has been discriminated against in the course of employment because of the adverse differentiation based upon her learning disability.
The policy upon which this discriminatory treatment rests was established by her employer, Treasury Board, and has affected her chance for promotion because she was deprived of the opportunity to attend the full-time second language training programme. It was her learning disability which did not allow her to present her aptitude to learn a second language in a manner that is equivalent to other civil servants.
Therefore, the Tribunal finds that the evidence presented supports a prima facie case of adverse effect discrimination pursuant to both sections 7 and 10 of the Canadian Human Rights Act. [Underlining added.]
[71] After so concluding the Tribunal then embarked upon its discussion of the government’s duty to accommodate. The Tribunal asked the following question [at page 24, paragraph 94]: “Having found that there was a prima facie case of adverse effect discrimination, what steps did the employer take to accommodate Ms. Green’s learning disability?” The Tribunal noted that in cases of adverse effect discrimination, citing from Alberta Dairy Pool, supra, pages 514 and 515 “there is no question of justification raised because of the rule, if rationally connected to the employment, needs no justification; what is required is some measure of accommodation”. It relied on the same case to place the onus on the employer “to show that it made efforts to accommodate the (disability, in our case) of the complainant up and to the point of undue hardship” (Tribunal decision, at page 25 [paragraph 95].)
[72] In terms of “undue hardship”, the Tribunal again relying on Alberta Dairy Pool, supra, and Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 said this concept includes a consideration of such things as financial cost, disruption of a collective agreement, problems of employee morale, the interchangeability of the workforce and its facilities. It quoted extensively from the reasons for judgment of Sopinka J. in Renaud, supra, as to the balancing which is to take place between the factors which concern the employer against the right of the employee to be free from discrimination noting, in this case, the fact that Nancy Green had a learning disability came to her attention after the language testing had been completed.
[73] The Tribunal accepted the evidence of Corrine Palmer, then Acting Chief of Employment Equity at HRDC that “it was our responsibility to follow up on that (Ms. Green’s indication that she might be a person with a learning disability) and to ascertain whether in fact she did have a disability that might be affecting her diagnostic test, language test results, and, if so, if there were ways of accommodating that, which was our obligation as a department and employer under our Employment Equity policies”. (Tribunal decision, at page 27 [paragraph 101].)
[74] The Tribunal then quoted extensively the correspondence between Norm Button and Vera McLay, noted, and found, at page 30 [paragraph 110] of its decision, that “Ms. McLay’s letter is clear that both the Public Service Commission and the Treasury Board Secretariat share the opinion that the `type of learning disability’ characterized by low aptitude in the Orientation Process testing phase should not be added to the list of disabilities to be considered when an exclusion on compassionate grounds is requested” but cited Mr. Ricciardi, who gave evidence of the Treasury Board Secretariat’s official position, that Treasury Board (at page 30 [paragraph 111]) “accepted that learning disabilities are included in the definition of disability and did not elucidate further concerning types of learning disabilities not to be so included”.
[75] The Tribunal cited other correspondence and considered the fact that much evidence was presented concerning the cost of training Nancy Green using recommendations found in Dr. Mandelcorn’s report and the reassessment by Dr. Ford concluding, however [at page 32, paragraph 119] “these considerations did not arise until years after Nancy Green had left her PM-6 acting position, and were in response to her complaint to the Canadian Hhuman Rights Commission and its attempts to understand the positions of the parties involved in the complaint”.
[76] The Tribunal concluded from the evidence, the issue of the cost of accommodation of Nancy Green was not contemplated in response to the knowledge of her learning disability nor to the requests of her Department to accommodate her. The Tribunal ended up its analysis on this point, by saying at page 32 [paragraph 120] of its decision “The evidence clearly indicates an almost total lack of accommodation on the part of the Respondents, Treasury Board and Public Service Commission”. [Emphasis mine.]
[77] The Tribunal then broached the subject of systemic discrimination leading to its conclusion that, “[fr]om the evidence, there appears to be a lack of understanding about the nature of learning disabilities and effective action needed to accommodate them. This lack of understanding may be the cause of the common thread of inability to meld the fine human rights theories of the employer with the practical procedures which have to be taken at all levels to make those theories work”. (Emphasis mine.) (Tribunal decision, at page 39 [paragraph 151].)
[78] The balance of the Tribunal’s decision deals with remedies. The Tribunal ordered two types of remedies: systemic discrimination remedies and the award to Nancy Green personally.
(a) Systemic discrimination remedies
[79] The Tribunal mentioned again the policies of the federal government with respect to non-discriminatory practice. At page 41 [paragraph 162] of its decision the Tribunal said this:
If the practices and procedures had been based on these policies, most of which are written policies, this complaint would never have been made. The practices and procedures would have ensured that Ms. Green’s learning disability was acknowledged and accommodated and that, consequently, she would have been a fully qualified candidate for the PM-6 position for which she applied in the Fall of 1987. This did not happen because personnel involved in the interpretation of the policies appeared from the evidence to be caught by systemic attitudes concerning persons with learning disabilities and exacerbated by a complex system of intersecting responsibilities. [Emphasis mine.]
[80] The Tribunal concluded that all three respondents must learn how to “effectively implement their own policies” and in order to do this the Tribunal ordered [at pages 41-42, paragraph 164]:
1. Treasury Board work with the Canadian Human Rights Commission to create, within six months of this decision’s release, an education and training programme for all its employees concerning mechanisms to effect the accommodation of persons with learning disabilities in their employment.
2. Treasury Board utilize the aforementioned education and training programme to train personnel of Treasury Board, the Public Service Commission, and Human Resources Development Canada within eighteen months of the release of this decision.
3. a procedure, agreed upon by the Respondents, Treasury Board, the Public Service Commission of Canada and HRDC, be implemented to review cases where an individual with a disability appears not to come within the parameters of any one policy or procedure already established.
4. Treasury Board review its policies concerning access to language training to ensure that such policies clearly state and communicate the mechanisms to accommodate candidates with learning disabilities for the Orientation Process and language training, whether those candidates self-identify before the Orientation Process or as a result of it, AND to ensure that these policies are a part of the training programme created pursuant to Order #1.
5. the Public Service Commission create an alternate method to test the aptitude of persons with learning disabilities to complete the language training programme in the allotted time frame, a method which takes into consideration the nature of the disability AND the nature of the compensatory strategies used by persons with learning disabilities.
(b) The award to Nancy Green personally
[81] The Tribunal, at page 43 [paragraphs 167-168] of its decision, prefaced its award to Nancy Green by saying this:
In light of the evidence presented to the Tribunal, on a balance of probabilities, Nancy Green would have (were it not for the discriminatory effect of the testing portion of the Orientation Process) received a “positive prognosis” of her aptitude to learn a second language to the level designated, within the time frame allotted by the Treasury Board policy. Ms. Green’s aptitude to learn French was evident from the evidence of her ability to learn using the tutoring provided by her department as well as her later participation in French language night classes. She learned enough in the tutorial stage to progress successfully to the second semester night course. She learned enough in both these learning areas to be able to participate in a dual-language assessment by Dr. Ford, conducted in French. The Tribunal agrees, after hearing this evidence, with the expert opinion of Dr. Ford that Ms. Green would have been a successful second language learner in the government-sponsored full-time training course, using the time frame dictated by Treasury Board policy, and without any more specialized teaching techniques than were already offered to those who were in the programme.
But for the discriminatory nature of the testing portion of the Orientation Process, on a balance of probabilities, Ms. Green would have been appointed to the PM-6 position, Manager, Employment Equity Consulting Service in January of 1988. While in that position, the evidence indicated that she would have participated not only in the second language training and would have become bilingual at the BB/C level, but also in management training sessions. Both of these opportunities were denied to Ms. Green as was the actual PM-6 position because of the discriminatory practice of the Respondents. [Emphasis mine.]
[82] As a result, the Tribunal ordered the following remedies [at pages 43-47, paragraph 168]:
1. Nancy Green be appointed immediately to a position at the PM-6 level, on an indeterminate basis without competition. If such a position is not immediately available, Ms. Green’s salary, from the date of the release of this Order, shall be at the PM-6 level.
2. Nancy Green receive from her employer a lump sum compensation for wages lost due to the discriminatory practice to December 31, 1997 in the amount of $69,895.25. In addition, Nancy Green shall receive an amount calculated as the total sum of payments, paid monthly, in the amount of $825.66 each, from January 1, 1998 to the date of the release of this decision.
3. Nancy Green receive from her employer a “gross up” to compensate her for adverse income tax implications due to her non-receipt of annual income at the PM-6 level from the date of the discriminatory practice and the receipt, in compensation thereof, of the lump sum payment made pursuant to Order 2. This “gross up” can be calculated by the compensation department of the Public Service Commission. The Tribunal will retain jurisdiction concerning this issue. If a figure mutually approved by Ms. Green and her department cannot be reached, the Tribunal will hear submissions upon this issue.
4. Nancy Green’s pension with her employer be adjusted to reflect her employment salary at the PM-6 level from February 11, 1988 to date.
5. Nancy Green be admitted, at the earliest and most convenient time to Ms. Green, to the full-time government-sponsored French language training programme for training to the BB/C level of proficiency, such training to be given to Ms. Green in the regular programme with any accommodations of her learning disability to be made within the context of that regular programme.
6. Nancy Green’s “negative prognosis” with respect to the language aptitude tests be removed and eliminated from any files held by her employer….
7. Nancy Green receive management training appropriate to her position as a PM-6, and with a view to her further advancement to executive levels in the federal civil service.
…
8. at the first reasonable opportunity, and after Ms. Green has completed the appropriate management training… , Nancy Green be appointed to a position at the EX-1 level, on an indeterminate basis, without competition.
…
9. pursuant to section 53(3) of the Canadian Human Rights Act, Nancy Green shall receive from the Respondents special compensation in the amount of $5,000.00.
…
10. compound interest at the Canada Savings Bond rate shall be calculated from the date of the discriminatory practice, January 5, 1987, on all amounts owing to Ms. Green, including the special compensation….
11. the Respondents shall pay to Nancy Green the amount of $4,057.22 for the costs of legal advice.
E. ANALYSIS
(1) The legal principles
(a) The standard of review
[83] Based on Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, the Tribunal does not enjoy deference when interpreting human rights legislation—correctness is the standard.
[84] However, the major issues in this case do not involve questions of law but rather the Tribunal’s fact- finding function or questions of mixed fact and law.
[85] Mr. Justice Bastarache in Pushpanathan v. Canada (Ministre of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraph 45 [pages 1016-1017], said “[a] clear majority of this Court has found in a number of cases that deference should not be shown by courts to human rights tribunals with respect to ‘general questions of law’ … , even legal rules indisputably at the core of human rights adjudication”. However, he observes this rule “has been mitigated by observations in other cases” citing Mr. Justice La Forest’s comment in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at paragraph 29 [page 849] of that case:
That having been said, I do not think the fact-finding expertise of human rights tribunals should be restrictively interpreted, and it must be assessed against the backdrop of the particular decision the tribunal is called upon to make …. A finding of discrimination is impregnated with facts, facts which the Board of Inquiry is in the best position to evaluate…. Given the complexity of the evidentiary inferences made on the basis of the facts before the Board, it is appropriate to exercise a relative degree of deference to the finding of discrimination, in light of the Board’s superior expertise in fact-finding, a conclusion supported by the existence of words importing a limited privative effect into the constituent legislation. [Emphasis mine.]
[86] I am also reminded by what Madame Justice L’Heureux-Dubé said in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, at paragraph 85 [page 844]:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: [citing Ross]…. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the Tribunal’s findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the Tribunal’s decision …. Such a determination may well be made without an in-depth examination of the record …. [Underlining added.]
[87] Ross, supra, at pages 852 through 863 [paragraphs 34-55] contains Mr. Justice La Forest’s analysis of discrimination. He opened up his discussion by saying it was important to approach with deference the findings of fact made by the Board in the course of determining whether there was discrimination on the part of the School Board. His analysis of discrimination emphasizes just how important the fact-finding functions of a human rights tribunal and the inferences which it draws from primary facts are to a conclusion of discrimination. I note his comments at paragraph 38 [pages 854-855] as follows:
It also made a finding of fact as to the respondent’s notoriety in the community of Moncton, and that continued media coverage of his statements and writings over an extended period contributed to his views having gained notoriety in the community and beyond. Given that these findings are findings of fact supported by the evidence, they are entitled to deference by this Court upon review, in light of the relative expertise of the Board in relation to the art of fact-finding in a human rights context, and I accept them. [Emphasis mine.]
[88] Another statement is contained at paragraph 40 [pages 855-856] of Ross, supra, where Mr. Justice La Forest says whether the respondent’s conduct did in fact adversely impact on the school community must be answered on the basis of the actual environment in the school as established by the evidence. He concluded his analysis on the point by saying “The finding of discrimination against the School Board is supported by the evidence and I accordingly see no error in this finding of the Board of Inquiry” (page 863, paragraph 54).
(b) Discrimination—the legal framework
(i) The definition of discrimination
[89] I have set out, in detail, the legal framework and reasoning which the Tribunal adopted in order to arrive at its conclusions and I am satisfied the Tribunal’s approach is consistent with proper legal principles governing the issue.
[90] In particular, the Tribunal applied the correct definition of discrimination. This definition is well-known and has been cited many times by the Supreme Court of Canada and most recently, a few weeks ago, in its decision of Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665, per L’Heureux-Dubé J. for the Court, at paragraph 35.)
(ii) Other principles
[91] The Tribunal’s purposive approach to interpretation finds ample support in the case law dealing with human rights legislation.
[92] The Tribunal analyzed the case before it as one of adverse effect discrimination. As I see it, its reasons for decision reveal a proper identification and application of Supreme Court of Canada decisions in this area and, in particular, its description of the evidentiary burden on Nancy Green to establish a prima facie case, the duty of the employer to accommodate short of undue hardship and the factors which go into determining what undue hardship is.
[93] Moreover, the Tribunal was correct in saying, in a case of adverse effect discrimination, the legal justification based on a bona fide occupational requirement is not material because the rule being challenged is not bad per se but some of its consequences are as they affect a particular individual or a group of individuals. In such a case, the rule is not struck down: what is important is the accommodation to the discriminatory effects.
[94] On this point, the Supreme Court of Canada’s decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, a case which was decided after argument was completed here, is of interest. McLachlin J., as she then was, in that case, suggested a new analytical framework which would collapse the previous distinction between direct and adverse effect discrimination. I could not apply this new analysis to resolve this judicial review application which was heard before that decision but I point out one of the reasons for reforming the previous Supreme Court of Canada analysis on this entire issue was the fact that, in cases of adverse effect discrimination, there can be no attack on the so-called neutral rule.
[95] The Attorney General suggested the Tribunal erred in the applicable test of where and how the evidentiary burden should be applied based on Department of National Health & Welfare v. Chandler et al. (1997), 29 C.H.R.R D/300. The Attorney General’s submissions on this point are rejected. The Tribunal adopted the evidentiary burden test for its prima facie determination based on what McIntyre J. had to say in O’Malley, supra. The Attorney General advances no compelling reason why this test is no longer good law. As I see it, the test suggested by the Attorney General is not appropriate in a situation such as Nancy Green’s, where she had been a federal employee for twelve years and the issue was access to the LTP. Moreover, the test suggested by the Attorney General has the effect of increasing the prima facie burden on a complainant which is not appropriate and not in accordance with what the Supreme Court of Canada has decided.
(iii) Disability—a special context
[96] In Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, and Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the Supreme Court of Canada dealt with disability cases in a Charter setting and emphasized the special context in which disability should be considered. In Brant, supra, the issue was whether the Ontario Special Education Tribunal was justified in confirming the placement of a disabled child in a special education class contrary to the wishes of her parents.
[97] In Eldridge, supra, the question was whether the Province of British Columbia discriminated against the appellants who were born deaf and their preferred means of communication was sign language. The appellants contended that absence of interpreters impaired their ability to communicate with their doctors and other health care providers thus increasing the risk of misdiagnosis and ineffective treatment.
[98] Both of these cases involved section 15 of the Charter which is not the case before me but as the Supreme Court of Canada has held there is an interplay between section 15 of the Charter involving human rights cases and the application of human rights legislation, I find the Supreme Court of Canada principles in section 15 cases instructive in this case.
[99] In Eaton, supra, Sopinka J. set out the basic principles governing the matter before the Court. I summarize paragraphs 64 through 70 [pages 271-274] of his reasons:
(1) At paragraph 66 [page 272], he held that “not every distinction on a prohibited ground will constitute discrimination and that, in general, distinctions based on presumed rather than actual characteristics are the hallmarks of discrimination have particular significance when applied to physical and mental disability”. He said “[a]voidance of discrimination on this ground will frequently require distinctions to be made taking into account the actual personal characteristics of disabled persons” (emphasis mine) citing McIntyre J. in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at page 169, that the “accommodation of differences … is the true essence of true equality”. Sopinka J. added that one of the purposes of the Charter is “to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons”.
(2) At paragraph 67 [pages 272-273], he said in the case of disability, “the elimination of discrimination by the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions such as race or sex”, was of the object of section 15 of the Charter. He added, however, “The other equally important objective seeks to take into account the true characteristics of this group which acts as headwinds to the enjoyment of society’s benefits and to accommodate them. Exclusion from the mainstream of society results from the construction of a society based on `mainstream’ attributes to which disabled persons will never be able to gain access”. (Emphasis mine.) He then added:
Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in the wheelchair needs a ramp. Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them. The discrimination inquiry which uses “the attribution of stereotypical characteristics, reasoning as commonly understood is simply inappropriate here. It may be seen rather as a case of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces the individual to sink or swim within the mainstream environment. It is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of section 15(1) in relation to disability. [Emphasis mine.]
(3) At paragraph 68 [page 273], Sopinka J. noted that in education in Ontario, the earlier policy was exclusion influenced in a large part by a stereotypical attitude to disabled persons they could not function in a system designed for the general population. This situation was one where “[n]o account was taken of the true characteristics of individual members of the disabled population, nor was any attempt made to accommodate these characteristics”. (Emphasis mine.) However, he said this changed in Ontario where the policy shifted to one which assessed the true characteristics of the disabled persons with a view to accommodating them.
(4) Sopinka J., at paragraph 69 [page 273], said “It follows that disability, as a prohibited ground, differs from other enumerated grounds such as race or sexy because there is no individual variation with respect to these grounds. However, with respect to disability, this ground means vastly different things depending upon the individual and the context. This produces, among other things, the `differences dilemma’”. (Emphasis mine.)
[100] In Eldridge, supra, La Forest J. at paragraph 56 [page 668], pointed out “It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions”. La Forest J. called it an “historical disadvantage … shaped and perpetuated by the notion that disability is an abnormality or flaw”.
[101] At paragraph 60 [page 670], in Eldridge, supra, he said this:
On its face, the medicare system in British Columbia applies equally to the deaf and hearing populations. It does not make an explicit “distinction” based on disability by singling out deaf persons for different treatment. Both deaf and hearing persons are entitled to receive certain medical services free of charge. The appellants nevertheless contend that the lack of funding for sign language interpreters renders them unable to benefit from this legislation to the same extent as hearing persons. Their claim, in other words, is one of “adverse effects” discrimination.
[102] Mr. Justice La Forest then referred to O’Malley, supra, and Central Alberta Dairy Pool, supra, concerning the principles of adverse effect discrimination and then at paragraph 64 [pages 672-673] talked about the particular relevance adverse effect discrimination has in the case of disability because “The government will rarely single out disabled persons for discriminatory treatment” adding:
More common are laws of general application that have a disparate impact on the disabled.
[103] At paragraph 66 [page 675] Eldridge, supra, Mr. Justice La Forest concluded this point of his analysis by saying “[u]nlike in Simpson-Sears and Rodriguez, in the present case the adverse effects suffered by deaf persons stem not from the imposition of a burden not faced by the mainstream population, but rather from a failure to ensure that they benefit equally from a service offered to everyone”. (Emphasis mine.)
[104] He noted at paragraph 77 [page 680], the Supreme Court had consistently held discrimination can arise both from the adverse effects of rules of general application as well as from express distinctions flowing from the distribution of benefits and that “[g]iven this state of affairs, I can think of no principled reason why it should not be possible to establish a claim of discrimination based on the adverse effects of a facially neutral benefit scheme”.
(2) The Attorney General’s challenge to the Tribunal’s findings
(a) Issue 1—Is the MLAT discriminatory?
[105] According to the Attorney General, the central issue in this judicial review is whether the MLAT and Pimsleur sub-test (the tests) discriminate against persons with auditory dyslexia; the Attorney General adds that if the test is properly held not to be discriminatory in nature, no duty of accommodation arises.
[106] The Attorney General accepts that Nancy Green has some form of auditory processing disability but does not accept that the language testing procedures discriminate against Nancy Green.
[107] Put in another way, the Attorney General says the core issue is whether the tests discriminate against persons with a learning disability by not accurately measuring their potential to learn a second language. The Attorney General concedes that the tests do differentiate because persons with learning disabilities may well do poorly on those tests and may well not receive a positive prognosis to learn a language.
[108] The Attorney General argues that the Tribunal’s findings of discrimination based on this disability is essentially a condition that but for the application of an inappropriate assessment tool, the true language ability of a person with dyslexia could and would be identified. The Attorney General argues the fundamental flaw in the analysis of the Tribunal is that it assumes that the assessment tool is a barrier rather than the disability itself and that it is an error of law to require the PSC to undertake obligations that are not rooted in good science or good public policy. The Attorney General argues that it is amply supported in the record that persons with dyslexia, and indeed other forms of cognitive processing disorders have difficulties learning a second language. He concluded that a balanced appreciation of the evidence before the Tribunal supports the conclusion that persons with auditory processing disabilities are not denied a chance to demonstrate their aptitude and are treated no differently from other individuals who have difficulty learning a second language.
[109] A review of the testimony of Drs. Sarrazin, Ford and Mandelcorn does not reveal a clash of experts as the Attorney General would have it keeping in mind the whole purpose of the orientation process was access to second language training and in that context to determine a person’s aptitude to learn a second language within an allotted time.
[110] There is no question Nancy Green had a learning disability; the Attorney General concedes as much. The nature of her disability, as identified by Dr. Ford, is a specific auditory sequencing (shorter term memory system) disorder which affected her phonetic decoding and pronunciation in the initial language learning phase.
[111] Dr. Mandelcorn also said Nancy Green had a learning disability. She defined, for the Tribunal, learning disability as a neuro-physiological problem—a deficit that gives rise to a significant discrepancy between a person’s intellectual potential and their achievement in certain areas. Dr. Mandelcorn identified these deficits as deficits in visual and auditory processing skills. Throughout her testimony, Dr. Mandelcorn identified Nancy Green’s problem as one of sequencing sounds, namely, rote memory auditory memorizing out of context noting that most of our sound discrimination does not take place out of context, i.e. meaningless words (applicant’s record, vol. 1, at pages 186 to 197).
[112] Dr. Mandelcorn testified Nancy Green had great strengths and, in particular, a wonderful ability to understand, think and conceptualize where she stood amongst the top five percent noting she had strong visual memory processing skills. Dr. Mandelcorn said the tests Nancy Green was administered did not allow her to show her strengths to compensate for her weaknesses and thus did not speak to aptitude in a real sense (applicant’s record, vol. II) because those tests were sound symbol measures of decoding which is where Nancy Green had a deficit.
[113] Dr. Ford, in his testimony, said the issue was whether the PSC was testing her language skills or her auditory memory sequencing disorder which would be the case if those tests eliminated context and compensation. He concluded the tests focus on her disorder.
[114] Dr. Sarrazin’s testimony addressed the issue of discrimination; his testimony was also very clear. He made these points:
(1) While he agreed with Dr. Ford and Dr. Mandelcorn’s diagnosis of Nancy Green, he said the testing which they did (which did not include the MLAT and Pimsleur tests), did not address the same question the PSC looked at; their assessment did not take into account the institutional context, i.e. would a person be able to meet the level of proficiency required to do the job within the prescribed time (applicant’s record, vol. VI, at pages 2010 to 2012).
(2) Françoise Thexton looked at the data gathered by the tests and made the assessment Nancy Green could not achieve the required level of BB/C but that this does not mean Nancy Green would not be able to learn French (applicant’s record, vol. VI, at page 2016). This is the context in which the tests must be looked at. They are only predictors of those who will make it and those who will not (in time) which is the objective of the test (applicant’s record, vol. VI, at page 2017).
(3) At pages 2150 and 2158 to 2176 of the same record, Dr. Sarrazin criticized Drs. Ford and Mandelcorn because they did not take into account that when one measures one has to keep the objective in mind and then select the test that best suits the purpose. He said Drs. Mandelcorn and Ford had different objectives in mind and that is why they selected different tests. The whole issue behind the MLAT is who is entitled to take government training and for this purpose, he testified the MLAT is a good predictor.
(4) Dr. Mandelcorn and Mrs. Thexton had different questions to answer. Dr. Mandelcorn was not constrained by the institutional setting but Mrs. Thexton had to decide whether Nancy Green would reach the level within the allotted time (applicant’s record, vol. VI, at page 2164).
(5) Dr. Sarrazin, at applicant’s record, vol. VI, page 2182, says the test is not to measure learning disability but is sensitive to that.
(6) Dr. Sarrazin categorically is of the opinion the MLAT does not discriminate having said he did not want to argue the fact there could have been dyslexia and there could be a better method to teach her.
(7) At applicant’s record, vol. VI, pages 2181 and 2182, Dr. Sarrazin states the MLAT is valid for what it is being used for, i.e. an indication of an individual’s probable degree of success in learning a second language. He adds the MLAT is not a test to measure learning disability and that a professional having to evaluate someone for a learning disability will not use the MLAT.
(8) Talking about a negative prognosis to enter into the LTP, Dr. Sarrazin says at applicant’s record, vol. VI, pages 2183 and 2184, that there are several reasons for this result including low ability and learning disability. At page 2184, commenting upon the reports of Drs. Ford and Mandelcorn, he said this:
In fact, Drs. Ford and Mandelcorn say, “yes, she has problems. She will probably make it, but you will have to take a special teaching method and give her more time”. In a word, they all say the same thing.
It is more true because, with the time that was allotted at the time that the first evaluation was done, when I took this time into consideration, there was no other choice for Françoise Thexton to make and to make this recommendation, but she was highly positive. She said that she would need more time, “so why don’t you take courses so that you will be able to make it in the allotted time?”
She took courses. When I read one of Dr. Ford’s reports, the last page, he says, “yes, she will be able to make it in the allotted time”. That is congruent with the original recommendation. This is why I have answered that I don’t see the discrimination.
(9) At applicant’s record, vol. VI, page 2195, Dr. Sarrazin says there is a high validity to the MLAT which is clear evidence it measures the basic abilities essential to learn a foreign language and adds that if you score very low, you will not be able to succeed. Again, he restates the MLAT does not predict whether an individual can learn a foreign language if he is given enough time and opportunity (at page 2199); what it does predict is how well a person can learn a foreign language in the usually allotted time and acknowledges its basic premise at pages 2200 and 2203 that only students with a reasonable promise of rapid learning and success at high levels of proficiency are successful in the LTP. At pages 2201 to 2203 and 2210, Dr. Sarrazin said the MLAT test is sensitive to people with learning disabilities; if they obtain low scores on Part II they will have difficulty learning phonology.
(10) At pages 2213 and 2214 he admitted the purpose of the MLAT test was not to identify a program which would maximize Nancy Green’s compensation skills and at page 2216 said he would not use the MLAT if he wanted to do a clinical evaluation of strengths and weaknesses concluding persons with learning disabilities would score low. The purpose of the tests is to identify these people. The test is like a scale and because a person is overweight that does not mean the scale is biased. It reflects reality.
(11) At page 2236 of applicant’s record, vol. VII, Dr. Sarrazin agreed learning disabled needed more time; otherwise there would be discrimination.
(12) At applicant’s record, vol. VI, page 2222, Dr. Sarrazin said Mrs. Thexton, Dr. Ford and Dr. Mandelcorn all said Nancy Green could learn French and the only difference is whether she can do it within the allotted time and would attain the prescribed level; he added the only person who answered that was Mrs. Thexton because when Dr. Ford saw her, the condition was different because she had already had French language training.
(13) At applicant’s record, vol. VII, pages 2249-2250, he was critical of Dr. Ford for saying the MLAT tested her disability. He said the MLAT was not simply an auditory memory test but conceded this is an aspect. He agreed the MLAT test works around sound symbols and at page 2251 says there are parts of the MLAT test that are sensitive to her particular area of disability.
(14) At page 2253 of the same volume, Dr. Sarrazin says the fact you identify a deficit does not mean you discriminate; making people aware of a problem and limited prognosis is not discrimination (page 2254) and Nancy Green, according to Dr. Sarrazin, was not discriminated because the test identified a problem and that is the reason for the test.
[115] In my view, the manner in which the Attorney General frames this issue—is the MLAT discriminatory?—does not truly reflect the Tribunal’s finding of discrimination based, as it was, on a finding of adverse effect discrimination on the complaint ground of disability which finds a special context as Eaton and Eldridge, supra, have indicated.
[116] A reading of Dr. Sarrazin’s evidence and a consideration of the Attorney General’s argument on this point strongly suggest they fault the Tribunal for considering the evidence on the tests in the context of direct discrimination which could be justified by a BFOR. In my view, the Attorney General misreads the Tribunal.
[117] The Tribunal did not decide the tests used by the PSC as a predictor of success in the LTP were directed to or against persons with learning disabilities particularly in the form of an auditory memory sequencing deficiency. On this aspect, it can be said the Tribunal accepted Dr. Sarrazin’s evidence. What the Tribunal did find, however, was that these non-discriminatory tests applied to the general Public Service population did have adverse consequences on people suffering from auditory memory sequencing deficiency.
[118] In terms of the tests, the Tribunal expressed those adverse consequences as their focus on Nancy Green’s weakness in auditory memory sequencing skills and in a context where those tests did not evaluate a person’s compensatory strengths. That is what Drs. Ford and Mandelcorn did; both came to the conclusion Nancy Green could learn French within the allotted time and could do so provided the language training she was given was adapted to account for her strengths rather than her disability weaknesses.
[119] As noted, even Dr. Sarrazin conceded that persons with auditory memory sequencing deficiencies would score low on the tests. That was also Françoise Thexton’s experienced view when, after reviewing the low scores, she said to Nancy Green she might have a learning disability.
[120] There was evidence from all experts upon which the Tribunal could make the finding of discrimination which, in the circumstances, cannot be disturbed.
[121] There is another reason for non-interference by the Court. Assuming the Attorney General was correct in his argument the MLAT was not discriminatory because it truly measured a person’s foreign language learning abilities, the Attorney General cannot succeed.
[122] Eldridge and Eaton, supra, teach us that discrimination can arise when:
(1) The disability is ignored and forces the individual to sink or swim in the mainstream; and
(2) It is not necessary for a finding of adverse effects suffered by a person to arise from the imposition of a burden not faced by the mainstream population but rather to ensure they benefit equally from a service.
[123] Access to the LTP was critical to Nancy Green’s promotion at the PM-6 level. The Government of Canada became aware in 1988 she had a learning disability which materially contributed to her negative prognosis. When Nancy Green’s learning disability was identified by Dr. Mandelcorn, there arose an obligation to accommodate because it was inappropriate to treat her as if she was in the mainstream LTP. This is particularly so when the underlying objective of the LTP is considered. It is designed to access public servants language training to meet the bilingual imperatives of a position identified as such. Access to the LTP in the case before me should not be foreclosed to a person with a learning disability such as Nancy Green had particularly when account is taken she could learn a second language and it was a matter of adaptation in training.
(b) Issue 2—Accommodation
[124] The Attorney General argues it was perverse and capricious of the Tribunal to find a refusal by the employer to acknowledge or accommodate her learning disability. The Attorney General divides the analysis of the duty to accommodate into two periods. The first period was whether Nancy Green was accommodated during the PM-6 competition. The second period was whether the complainant was accommodated after the position was filled.
[125] The Attorney General argues the interview stage of the orientation process is ideally suited to permit accommodation of a learning disability. The Attorney General argues the test clearly indicated a problem of a serious nature with certain aspects of auditory processing and it was on this basis that Françoise Thexton assessed the likely efficacy of compensatory strategies and personally conducted parts of the test that had not been previously completed by Nancy Green to secure confirmation of the test results. She made practical recommendations on training strategies that would be most effective in securing a positive prognosis for the future; she recommended Nancy Green pursue individualized, part-time training in order to improve the level of knowledge of French language. Her Department put in place a program to allow her to develop her capacity in French in a manner consistent with Françoise Thexton’s recommendation, a program which included private tutoring during working hours with the possibility of workload adjustments to facilitate learning French.
[126] In my view, this argument cannot succeed. As noted, the Tribunal analyzed the Supreme Court of Canada’s leading judgments on the duty to accommodate up to a point of undue hardship.
[127] The Tribunal then considered the evidence and, in particular, quoted extensively from the correspondence between Norm Button and Vera McLay which has been reproduced extensively in these reasons. The Tribunal took into account her Department’s efforts to accommodate her but the road block was not there; it was with the central agencies, the PSC and the TB. It referred to other evidence and concluded there was a total lack of accommodation on the part of the respondents, Treasury Board and Public Service Commission.
[128] Was it patently unreasonable for the Tribunal to make this finding? Clearly not in reference to City of Montreal, supra, where Madame Justice L’Heureux-Dubé said [at page 844, paragraph 85]:
Only where the evidence viewed reasonably is incapable of supporting the tribunal’s finding will a fact finding be patently unreasonable.
[129] The Attorney General of Canada’s attack on the Tribunal’s finding in terms of accommodation and undue hardship does not meet the test set out in City of Montreal, supra.
(c) Issue 3—Systemic remedies
[130] The Attorney General argues the systemic remedies ordered by the Tribunal were inappropriate. As I perceive this argument, its foundation requires a challenge, once again to the fact-finding function performed by the Tribunal.
[131] The Attorney General challenges the Tribunal’s finding that Nancy Green did not obtain the PM-6 position because of systemic attitudes concerning persons with learning disabilities which included a misunderstanding of the nature of learning disabilities. The Attorney General reiterates the position, based on scientific evidence, that Nancy Green’s disability constituted a barrier to her completing French language training within the allotted time but that the Tribunal found, based on opinion evidence, that it was the test, and not the disability, which was the barrier.
[132] The Attorney General argues the record does not support the conclusion that there are attitudes which must be changed and says the Tribunal has not, in this case, carefully weighed scientific evidence and uncovered systemic bias in testing against persons with auditory dyslexia. The Attorney General argues the Tribunal’s orders of systemic remedies fail to allow for the possibility that its expert was in error in determining the test itself was discriminatory and an alternative test could be developed and concludes by saying the Tribunal’s decision is based on one expert’s opinion and it is not appropriate foundation for its broad orders.
[133] The applicant’s submissions on this point fail for two reasons:
(1) This submission, in part, is a twin to the arguments made on whether the MLAT test was discriminatory; these arguments have been rejected.
(2) This submission mischaracterizes the basis for the Tribunal’s orders.
[134] What troubled the Tribunal was the chasm between the Government of Canada’s theory and practice in terms of the application of its anti-discriminatory procedures. To repeat, the Tribunal found, at page 41 [paragraph 162] of its decision:
If the practices and procedures had been based on these policies, most of which are written policies, this complaint would never have been made. The practices and procedures would have ensured that Ms. Green’s learning disability was acknowledged and accommodated and that, consequently, she would have been a fully qualified candidate for the PM-6 position …. This did not happen because personnel involved in the interpretation of the policies appeared from the evidence to be caught by systemic attitudes concerning persons with learning disabilities and exacerbated by a complex system of intersecting responsibilities.
[135] The Tribunal’s bottom line was that the respondents before it, applicants before me through the Attorney General in this judicial review, must learn how to effectively implement their own policies.
[136] Again, the Attorney General’s invitation to the Court is for it to reweigh the evidence before the Tribunal and to substitute its opinion for that of the Tribunal. The Attorney General, on this point, has not identified and shown any error which warrants intervention. The record, as set out in these reasons, illustrates there was evidence before the Tribunal upon which it could reasonably conclude the prescribed remedies were warranted. Reference need only be made to the view taken that Nancy Green had a low aptitude and did not have a learning disability.
[137] I was initially concerned with the scope of systemic remedy number 5 which requires the PSC to “create an alternative method to test the aptitude of persons with learning disabilities to complete the language training program in the allotted time frame”. This concern arose because in a case of adverse effect discrimination, it is not the rule which is struck down but its adverse effects accommodated. This order does not throw out the MLAT and Pimsleur tests as the main identifier of language learning aptitude. What this order requires is that in the case of a person with a learning disability, the PSC fine-tune the process in order to eliminate what it found the MLAT did not address, i.e. the nature of the disability and the nature of the compensatory strategies used by persons with learning disabilities. On this basis, I find systemic order number 5 flows out of the evidentiary findings it made, is a reasonably connected remedy and is consistent with the approach laid out by the Supreme Court of Canada in Eaton, Eldridge, supra, in disability cases and Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84.
(d) Issue 4—The personal awards to Nancy Green
(i) Rational connection to discrimination finding
[138] The Attorney General challenged the award to Nancy Green on a number of fronts premised, once again, on a particular conception which the Attorney General derives from a reading of the Tribunal’s decision. The Attorney General says the Tribunal found the discriminatory practice was the almost exclusive use of auditory discrimination testing as the basis for the test of an aptitude to learn another language. The Attorney General argues all of the remedies ordered by the Tribunal pursuant to section 53 of the Act, must be rationally connected to the use of auditory discrimination testing of language learning aptitude. The Attorney General then focussed on what the Tribunal said its approach would be in its application of its remedial powers under section 53 of the Act [at pages 42-43, paragraph 166] “that of ‘restitutio in integrum’—to attempt to make the victim of the discrimination ‘whole’, to create for the victim the life which, but for the discriminatory practice, the victim envisioned” (emphasis mine) was an error because it introduced a subjective element to the powers conferred upon it by statute. In the Attorney General’s submission, the test of whether or not a remedy relates to a discriminatory practice and its consequences is an objective one.
[139] The Attorney General’s overall submissions on the personal awards to Nancy Green cannot be accepted. First, these submissions do not reflect the reality of the Tribunal’s decision and the impact of the adverse effects found. The reality is Nancy Green did not gain access into the LTP and, as a result, was not appointed to the PM-6 position in which the Selection Board had ranked her first. Second, the adverse effect of the test administered contributed significantly to the negative prognosis which she received. Third, the Tribunal found a failure to accommodate short of undue hardship.
[140] As I see it, the Tribunal’s approach on Nancy Green’s award reflected the fact she was not able to gain access into the French language training program because of the adverse effects of the tests and what the Tribunal sought to remedy were the consequences—her non promotion. There was an overall rational connection between the remedies ordered to Nancy Green and the effects of the discrimination on her denied PM-^6 position.
(ii) Remoteness and mitigation
(a) Promotion—remoteness
[141] The Attorney General raised a number of jurisdictional issues in connection with the individual awards to Nancy Green. These legal issues involve the principles established by the Federal Court of Appeal in Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401and the judgment of Mr. Justice Rothstein when he was with the Trial Division in Canada (Attorney General) v. Uzoaba, [1995] 2 F.C. 569
[142] Morgan, supra, involved a number of issues related to remedies under the Canadian Human Rights Act and I take from that case the following principles where Mr. Morgan had been refused enrollment into the Armed Forces and the Tribunal ordered reinstatement:
(1) To establish real damage was actually suffered creating a right to compensation, i.e. was there loss of a job which is compensable and not simply lost opportunity, it is not required to prove that, without the discriminatory practice, the position would certainly have been obtained. To establish actual damage, losing a job, her losing a promotion, probability is not required but a possibility is sufficient provided it was a serious one (at page 412, per Marceau J.A.).
However, to establish the extent of that damage and evaluate the monetary compensation to which it could give rise, it is not permissible to simply disregard evidence the job could have been denied in any event.
Marceau J.A.’s conclusion on this point is set out at page 413 as follows:
As I read the judgment of the initial Tribunal, the Chairman concluded, in spite of some equivocal remarks, that there was no uncertainty that Morgan would have been enrolled, regardless of the fact that theoretically other stages remained to be completed in the recruiting process. This was obviously a finding of fact which could not be said to have been reached in complete disregard of the evidence. Having come to the conclusion that the original Tribunal had not committed in this respect any palpable or overriding error, the Review Tribunal was not entitled to intervene. We, in turn, are similarly disentitled. [Emphasis mine.]
(2) In Morgan, supra, the Federal Court of Appeal tackled a second issue which was the calculation of the compensation for lost wages. Marceau J.A., at page 415, adopted what the Review Tribunal had to say in Foreman v. Via Rail Canada Inc. (1980), 1 C.H.R.R. D/233 in respect of the principles which should guide a tribunal in assessing or quantifying financial loss:
In our view, the use of the language of “compensation” by the Canadian Act implies that tribunals are to apply the principles applied by courts when awarding compensatory damages in civil litigation [sic]. The root principle of the civil law of damages is “restitutio in integrum”: the injured party should be put back in 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.
(3) Morgan, supra, endorsed what it had said in Canada (Attorney General) v. MacAlpine, [1989] 3 F.C. 530(C.A.), that the proper test for assessing damages includes the notions of remoteness and foreseeability. Marceau J.A. expressed himself in Morgan, supra, at page 416 as follows:
The idea is always the same: exclude consequences which appear down the chain of causality but are too remote in view of all the intervening facts. Whatever be the source of liability, common sense still applies.
(4) A third question addressed in Morgan, supra, was about mitigation which Marceau J.A. said was relatively simple because there was no point of law involved. Both tribunals, there, had held the assessment of damages had to be made subject to the long established common law duty to mitigate. Marceau J.A. concluded on the point as follows at page 417:
I do not think this intervention of the Review Tribunal was warranted. While this question of mitigation was a mixed question of law and fact, the disagreement of the Review Tribunal rested wholly on an appreciation of the evidence. It could certainly not be said that the Chairman of the initial Tribunal, in reaching his conclusion, had been influenced by a misconception of the law or a misapprehension of the evidence brought before him. His conclusions should have remained undisturbed—I think they should be restored. [Emphasis mine.]
(5) Another principle established in Morgan, supra, concerned the award of interest both on the main amount of compensation for the lost wages and the subsidiary one related to hurt feelings. On the compensation for lost wages, the initial tribunal awarded interest, compounded semi-annually at the rate charged by the Canadian Imperial Bank of Commerce with respect to its most worthy customers. The Review Tribunal substituted a different rate, namely that of the Canada Savings Bonds. Marceau J.A., held at page 420, compound interest is warranted only if it can be discerned from the evidence or the circumstances of the case it was required to cover the loss.
(6) In terms of interest on the compensation for hurt feelings, Marceau J.A. held such interest was permissible at law.
[143] The issue faced by Mr. Justice Rothstein in Uzoaba, supra, concerned that part of a tribunal award which said his employer, on the first reasonable opportunity, was obligated to offer Dr. Uzoaba a position at the WP-5 level which constituted a promotion from the WP-3 position he held at the time his rights were violated. The argument faced by Mr. Justice Rothstein was put forward by counsel for the Attorney General who argued the Public Service Employment Act establishes a scheme whereby promotions are to be based on merit and this cannot be overruled by a Human Rights Tribunal.
[144] Mr. Justice Rothstein rejected the Attorney General’s argument holding that, even if the power of a Human Rights Tribunal to order a promotion in the Public Service conflicts with the Public Service Employment Act, he was satisfied the provisions of the Act must prevail relying upon the paramountcy of human rights legislation over ordinary legislation in order to give effect to the whole scope of a tribunal’s powers to remedy the results of a discrimination. I note Mr. Justice Rothstein also relied upon the Supreme Court of Canada’s decision in Kelso v. The Queen, [1981] 1 S.C.R. 199, a case, interestingly enough, involving human rights and official languages holding at page 207 the government’s right to allocate resources cannot override a statute such as the Canadian Human Rights Act [S.C. 1976-77, c. 33]. I note what Mr. Justice Dickson, as he then was, said in Kelso, supra, at page 210:
It is quite correct to state that the Court cannot actually appoint Mr. Kelso to the Public Service. The administrative act of appointment must be performed by the Commission. But the Court is entitled to “declare” the respective legal rights of the appellant and the respondent.
The Public Service Commission is not above the law of the land. If it breaches a contract, or acts contrary to statute, the courts are entitled to so declare.
[145] In Uzoaba, supra, the Tribunal had found the claimant’s performance appraisal confirmed that Dr. Uzoaba could expect a promotion within one to two years if he were able to rectify the weaknesses identified in the appraisal. The Tribunal was satisfied that had Dr. Uzoaba remained working within the CSC, he could reasonably have anticipated a promotion to the WP-4 level within approximately three years. The Tribunal was satisfied that Dr. Uzoaba would have likely succeeded in the WP-4 position, enjoying further promotion at some future date. The Tribunal concluded it was satisfied it would be appropriate to reinstate Dr. Uzoaba at the WP-5 level.
[146] Referring to these findings, Mr. Justice Rothstein concluded the question was one of sufficiency of evidence and said that if Dr. Uzoaba had been reinstated at a higher position in the absence of evidence showing the promotion was reasonably foreseeable, then the Tribunal would have erred. He found there was evidence, relying upon the serious possibility test expressed in Morgan, supra, that Dr. Uzoaba would have attained the level of WP-5 by the time of the Tribunal’s decision. Mr. Justice Rothstein then referred to evidence before the Tribunal of the promotion of some of Dr. Uzoaba’s colleagues finding there was some evidence upon which the Tribunal could base its decision that Dr. Uzoaba should be reinstated at the WP-5 level. He concluded [at page 579] “[this] puts the matter beyond the reach of this Court”.
(b) Mitigation
[147] The Attorney General argued that Nancy Green by failing
(1) to undertake a vigorous job search at the earliest opportunity;
(2) to continue a job search;
(3) to continue remedial French language training;
(4) to take full-time French language training when offered,
failed to mitigate the damages said to have resulted from the discriminatory practice to such an extent she has, in effect, broken any rational connection there would have been between the discriminatory practice of language testing and what the Tribunal is attempting to remedy: her failure to advance.
[148] Framed in this way, the Attorney General does not advance a classic mitigation of damages case which often arises in civil litigation but one of disentitlement to a remedy on account of Nancy Green’s inactivity in the four areas mentioned.
(iii) Subsidiary issues
[149] The Attorney General argued other errors in the Tribunal’s award:
(a) the pension remedies were bad because this violated subsection 62(1) of the Act;
(b) the destruction of records contravened the National Archives of Canada Act [R.S.C., 1985 (3rd Supp.), c. 1];
(c) the Tribunal did not indicate when its calculation of lost wages began;
(d) the Tribunal erred in dating the gross-up; and
(e) erred in awarding legal costs.
(iv) Conclusions on these issues
[150] For ease of reference, I will deal with the Attorney General’s submissions in the context of each award made to Nancy Green.
(1) Promotion to PM-6 level—Award 1
[151] This award is not disturbed. Guided by the serious possibility test in Morgan, supra, the primacy principle which I might add is enshrined in section 82 of the OLA in so far as the Act is concerned, the reasonably foreseeable promotion test and its application to the evidence formulated by Mr. Justice Rothstein in Uzoaba, supra, there is no question of remoteness. The Tribunal, at page 41 [paragraphs 160-163] of its decision, expressed itself very clearly on the point and there was evidence to support its award before the Tribunal.
[152] It is convenient here to deal with the mitigation argument put forward by the Attorney General, framed, as noted, on a disentitlement to a promotion at the PM-6 level. Put another way, the Attorney General argues Nancy Green is not entitled to that remedy because she could have been promoted as a PM-06 in another position and could have continued French language training.
[153] I am satisfied, on a balance of probabilities, that what Nancy Green did or did not do after she was appointed to the PM-5 Industrial Consultant position in February 1989, does not disentitle her to a remedy under the Act. Some of the evidence noted includes:
(1) the learning curve in her new position;
(2) the fact she was on maternity leave for a two-year period from September 1991 to September 1993;
(3) the fact settlement negotiations were being conducted to resolve her complaint;
(4) many of the job opportunities were outside of Toronto;
(5) many, if not most of the PM-6 positions were designated bilingual and she could not fill that requirement.
[154] In terms of abandoning French training, I was concerned with the allegation made by the Attorney General that Nancy Green may have refused full-time French language training in 1990. What was involved was redesignating her existing PM-5 position from unilingual to bilingual so she could take full-time French training with a contemplated start date of September 1991. Nancy Green testified on the point (respondent’s record, vol. 3, at pages 436 ff.). I am not satisfied Nancy Green was given a clear-cut option. She stated at page 439 “but it was all so nebulous”. I am also satisfied Nancy Green continued to examine French language training availability and one example is at page 440.
[155] For these reasons, the Attorney General’s point is not sustained.
(2) Lost wages—Award 2
[156] The Attorney General argues the Tribunal did not indicate when its calculation began and, in the alternative, did not mitigate her wage loss. I have already dismissed the mitigation argument.
[157] I agree with counsel for the Commission the Tribunal’s order for lost wages in the amount of $69,895.25 is supported on the evidence and that since Nancy Green returned to receiving a PM-5 salary in February 1989, that this is the appropriate beginning point for wage loss compensation.
(3) The gross-up—Award 3
[158] The Tribunal awarded Nancy Green a gross-up to compensate her for adverse income tax implications due to her non-receipt of annual income at the PM-6 level from the date of the discriminatory practice.
[159] The Attorney General argues and the Commission agrees that the start date for the gross-up should be February 1989. The Tribunal’s order is varied accordingly.
(4) Pension adjustment—Award 4
[160] The Tribunal ordered that Nancy Green’s pension be adjusted to reflect her employment salary at the PM-6 level from February 21, 1989, to date.
[161] The Attorney General raises subsection 62(1) of Part III of the Act as a bar. The Attorney General also cites Canada (Attorney General) v. Maggee, [1998] 4 F.C. 546(T.D). Subsection 62(1) provides that Part III as well as Parts I and II do not apply to or in respect of any superannuating or pension fund or plan established by an Act of Parliament enacted before March 1, 1978.
[162] The Attorney General argues that this paragraph is not limited to filing of complaints but also bars any tribunal from dealing with any matter or question relating to a pension plan established before March 1, 1978.
[163] I cannot accept the Attorney General’s argument. Nothing in the Tribunal’s order touches, modifies or affects the structural elements of the superannuation plan which Nancy Green is part of. All that this order provides for is that, within the terms of that plan itself, Nancy Green be treated as if she was a PM-6. Clearly, on the principle of restitutio in integrum, the Tribunal has the jurisdiction to make this award.
(5) Admission to French language training—Award 5
[164] The Attorney General argues the Tribunal did not order that Nancy Green be appointed to the bilingual position for which she competed and that she did not apply later for bilingual non-imperative positions. The Attorney General argues that this expenditure is normally only triggered by an operational requirement.
[165] I agree with the Commission and Nancy Green that the evidence clearly supports the fact she was denied access to LTP because of her learning disability and this closed the door to any further application for bilingual positions. This award is not disturbed.
(6) Removal and elimination of personnel files—Award 6
[166] The Tribunal ordered that Nancy Green’s negative prognosis with respect to the language aptitude test be removed and eliminated from any files held by her employer. The Tribunal simply said [at pages 44-45, paragraph 168(6)] “[a]s the evidence of the Respondents indicated some lack of communication between and amongst departments concerning the files created for Ms. Green’s appeal, or complaint, or simply concerning her employment records, a report of the elimination of that `negative prognosis’ from all files shall be given to Ms. Green by September 15”.
[167] The Attorney General cites subsection 5(1) of the National Archives of Canada Act which provides that “[n]o record under the control of a government institution and no ministerial record, whether or not it is surplus property of a government institution, shall be destroyed or disposed of without the consent of the Archivist”.
[168] Arguing the contrary position, the Commission and Nancy Green argue that although a negative prognosis is supposed to be a highly confidential document, a copy of the negative prognosis found its way into her pay files a full ten years after it was sent to that department; they argue the negative prognosis is not closely protected and has the continuing capacity to be prejudicial to Nancy Green’s career and promotional opportunities.
[169] I do not think the Tribunal had any jurisdiction to order the destruction of the negative prognosis but I agree with the Commission and Nancy Green this prognosis should be fully protected. I vary the Tribunal’s order to impose an obligation upon the PSC to take whatever steps are necessary to ensure the confidentiality of the original negative prognosis and the retrieval of any copies of it which may have been made and are in circulation.
(7) Management training—Award 7
[170] The Tribunal ordered that Nancy Green receive management training appropriate to her position as a PM-6 and with a view to her further advancement to executive levels in the federal Public Service. The Tribunal says at the time of the discriminatory practice, Nancy Green had been an exemplary employee, whose annual performance appraisals ranked her well above average. She was a promotable employee. The Tribunal says most of her employers were in accord with the assessment and described her as a promotable employee who should receive management training to continue her upward mobility.
[171] The Attorney General argues the Tribunal was in error to conclude Nancy Green was denied management training due to the discriminatory practice of her employer.
[172] I agree with Nancy Green’s and the Commission’s point of view that if she had been promoted to the PM-6 position, she would have had management training. In my view, the Tribunal’s order is ancillary to its main finding which I have upheld that she should be appointed to a PM-6 position.
(8) Appointment to an EX-1 level—Award 8
[173] The governing analysis on this issue is the same as applied to award No. 1. For the reasons expressed there, this award is not disturbed.
[174] The relevant discussion by the Tribunal is set out at pages 45 and 46 [paragraph 168] of the its decision . I quote the Tribunal’s concluding observations on this point, at page 46 [paragraph 168(7)]:
She continued, however, to have pride in her own work, but for the discriminatory practice of her employer, there is a reasonable likelihood that Ms. Green’s career would have bloomed further and promotions well beyond the PM-06 level would have moved Ms. Green along her career path.
[175] As I see it, there was ample evidence before the Tribunal to enable the Tribunal to reach the conclusion it did.
(9) Special compensation of $5,000—Award 9
[176] Pursuant to subsection 53(3) of the Act, the Commission ordered that Nancy Green receive special compensation of $5,000. The Tribunal, at page 46, [paragraph 168(8)] of its decision took into consideration the frustration and loss of respect which the evidence clearly indicated the past ten years of dealing with systemic discrimination had caused Nancy Green. The Tribunal added the refusal of the employer at most levels to acknowledge or accommodate her learning disability was exacerbated by its practices and attitudes.
[177] This award is not disturbed. This point was not strenuously argued by the Attorney General and was not supported by any lack of evidence in the Tribunal’s record.
(10) Interest—Award 10
[178] At page 47 [paragraphs 168(9), (10)] of its decision, the Tribunal said “[i]n order to place Ms. Green firmly in a position in which she should have found herself in 1987, the Tribunal additionally ORDERS that compound interest at the Canada Savings Bond rate shall be calculated from the date of the discriminatory practice, January 5, 1987, on all amounts owing to Ms. Green, including the special compensation under section 53(3)”.
[179] The Attorney General challenges this award on two grounds:
(a) The award of compound interest rather than simple interest on lost wages is contrary to Morgan, supra;
(b) Interest on the special compensation is not permitted at law because the maximum amount of compensation cannot exceed $5,000 under the statute (now amended).
[180] In Morgan, supra, MacGuigan J.A., who was with the majority on this point, held at page 439, that simple interest should be taken to be the norm except in special circumstances identified and justified by the Tribunal. Marceau J.A. said at page 420, compound interest is warranted if, but only if, it can be deduced from the evidence or the circumstances of the case that it was required to cover the loss.
[181] Moreover, in connection with the special compensation, Mr. Justice MacGuigan said that the Federal Court of Appeal’s decision in Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391 settled the issue as to whether the interest can be awarded on the award for hurt feelings. He said at page 437 “It can be awarded, up to a total award (including interest) of $5,000”.
[182] I agree with the submissions made by the Attorney General on this point. In terms of interest on lost wages, neither the Commission nor Nancy Green pointed to any evidence or circumstance that compound interest was required to cover the loss or could point to any special circumstance identified and justified by the Tribunal. In addition, the special compensation of what was then $5000 is capped at $5000 and since the award was $5000, no interest can be provided for.
[183] As a result, the Tribunal’s award is varied to provide for simple interest rather than compound interest on the amounts owing to Nancy Green, excluding interest on the special compensation awarded.
(11) Legal costs—Award 11
[184] The Tribunal ordered the payment of legal costs of $4,057.22. There was evidence in the record that Nancy Green had retained professional services in October 1995 until the end of June 1996 to help in the preparation of her submissions to the Commission for its deliberation in its decision-making process.
[185] The Attorney General argues the Act is silent as to the awarding of legal costs and the only possible reference to any power which may be analogous to that of granting legal costs is the reference to expenses in paragraph 53(2)(c). The Attorney General cites Canada (Attorney General) v. Lambie (1996), 124 F.T.R. 303 (F.C.T.D.), where my colleague Nadon J. said at page 315 that the Act does not confer jurisdiction to award costs although Parliament could easily have included such a power.
[186] I agree with my colleague that if Parliament had intended the Tribunal to award legal costs, it would have said so. Reference is had to paragraph 53(2)(d) which refers to compensation to the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation. There is no mention of legal costs, an indication Parliament did not intend the Tribunal have the power to order the payment of legal costs.
[187] I accept the submission of the Attorney General. The Tribunal’s award is struck.
F. DISPOSITION
[188] For all of these reasons, this application for judicial review is allowed in part only for the purpose of varying the personal awards to Nancy Green Nos. 3, 6 and 10 as set out in these reasons and striking award No. 11. The Commission asked for costs. It was largely successful and is awarded costs. The Commission asked for implementation directives. The awards to Nancy Green are to be implemented as soon as practicable. I may be spoken to if difficulties arise.