A-727-90
Attorney General of Canada (Applicant)
v.
Richard Roderick Morgan and Canadian Human
Rights Commission (Respondents)
A-741-90
Canadian Human Rights Commission (Applicant)
v.
Canadian Armed Forces, Norman Fetterly, Barry
Sheppard and Ronald Lou-Poy, constituted as a
Canadian Human Rights Review Tribunal
(Respondents)
and
Richard Roderick Morgan (Mis en cause)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. MORGAN
(C.A.)
Court of Appeal, Mahoney, Marceau and MacGuigan
JJ.A.—Vancouver, September 24; Ottawa, November
4, 1991.
Human rights — Complainant given medical discharge from
Armed Forces — Application to re-enrol rejected as medically
unfit, although passed first steps in recruiting process —
Forces admitting discriminatory act — Initial Tribunal award
ing compensation for lost wages from date could have re-
enrolled to date of hearing (after adjustment for delay in filing
complaint) with interest compounded semi-annually, at CIBC's
prime rate — Reducing compensation to reflect failure to miti
gate damages by quitting jobs — Also awarding $1,000 with
interest for hurt feelings — Review Tribunal varying compen
sation by only allowing it from date complaint made, but
extending it to date of reinstatement, not deducting amounts for
failure to mitigate, lowering rate of interest to that of Canada
Savings Bonds, and increasing award for hurt feelings, but
refusing to award interest thereon — Issues: (1) identification
of loss (whether necessary to prove actual, probable or serious
possibility of loss of position); (2) calculation of compensation
(effects of delay in filing complaint, failure to mitigate dam
ages, delay in hearing matter); (3) jurisdiction to award inter
est, appropriate rate — Review Tribunal's decision set aside.
This was an application and cross-application to set aside the
decision of a Human Rights Review Tribunal, varying the rem
edies awarded by the initial Tribunal. The complainant, Mor-
gan, was given a medical discharge from the Canadian Armed
Forces in 1978 after suffering a serious head injury. He applied
to re-enrol in 1979, and passed the first steps in the recruiting
process, but was rejected in 1980, and again in 1982, as he was
not considered medically fit. He filed a complaint under the
Canadian Human Rights Act in 1983, but a Tribunal was not
appointed until five years later. The Canadian Forces subse
quently admitted to a discriminatory act contrary to the Act.
The initial Tribunal found that Morgan had lost a position of
employment, as opposed to merely losing an opportunity for
employment. It awarded compensation for lost wages from the
date Morgan could have re-enrolled, after making an adjust
ment of two and one-half years for failure to lodge a complaint
in a timely fashion, to the date of its hearing. It reduced the
compensation for wage loss to reflect the failure to mitigate
damages in having quit two jobs which paid as much as Mor-
gan would have earned in the Forces. It further awarded inter
est, compounded semi-annually, on the compensation for lost
wages at the prime rate charged by the Canadian Imperial
Bank of Commerce and $1,000 and interest for hurt feelings.
Finally it ordered that Morgan be reinstated.
The Review Tribunal agreed that Morgan had lost an actual
position, holding that it was sufficient to look at the probable
result of the recruiting process to so conclude. The majority of
the Review Tribunal agreed that Morgan should be reinstated,
but held that where an order of reinstatement is made, the com
pensation for lost wages should continue until the order is
complied with. The majority took into account the excessive
delay in bringing the complaint, and held that the compensa
tion period should only begin 27 months after the discrimina
tory act. The dissenting member held that only such part of the
loss as was reasonably foreseeable was recoverable so there
was no reason not to start the period of compensation on the
date Morgan would have actually been re-enrolled. He held
that it could not extend beyond what appeared reasonable, or
some three years and five months later. The Review Tribunal
declined to deduct amounts for failure to mitigate damages,
because it felt that the initial Tribunal's approach had been too
simplistic. The Review Tribunal lowered the rate of interest to
that of Canada Savings Bonds. It increased the award for hurt
feelings to $2,500, but did not award interest thereon, holding
that such was not permitted by law.
Subsection 53(2) empowers the Tribunal to order compensa
tion for wages lost as a result of a discriminatory practice.
Under subsection 53(3), it may order compensation not
exceeding $5,000 (including interest) for hurt feelings as a
result of the practice.
The issues concerned (1) the identification of the loss to be
compensated, which depended upon whether the complainant
had lost an actual position or merely an opportunity to compete
for a position, as the discriminatory act occurred prior to a
determination of whether there existed a vacancy and the can
didate's competitiveness; (2) calculation of the compensation,
which required determination of the compensation period, the
effect of the delay in filing the complaint, and of the mitigation
of damages; (3) the award of interest, i.e. whether the Tribunal
had jurisdiction to award interest on the awards for compensa
tion for lost wages and for hurt feelings, and the appropriate
rate of interest thereon.
Held (MacGuigan J.A. dissenting), the application and the
cross-application should be allowed in part and the Review
Tribunal's decision should be set aside.
Per Mahoney J.A.: It was unnecessary to decide whether a
probability or a serious possibility of actual loss of a position
must be established, because the more onerous burden of
establishing a probability of actual loss had been discharged.
There must be a causal connection between the discrimina
tory act and the amount of wages found to have been lost as a
result thereof. It would be sheer coincidence if that amount
were the amount attributable to the period selected by either
Tribunal. Although the time during which a causal connection
exists must be determined according to the circumstances of
each case, the time taken by the Commission to process a com
plaint, the victim's delay in complaining and time consumed in
proceedings until an order is made are not relevant. The deter
mination of the dissenting member of the Review Tribunal
must be accepted.
No useful purpose would be served by reconstituting the
Review Tribunal to consider Morgan's pattern of quitting jobs,
as there is no additional relevant evidence to be had. The initial
Tribunal considered the financial consequences of Morgan
having quit jobs, based on the evidence before it. Its findings,
which Marceau J.A. would restore, do not disclose any review-
able error.
Since the initial Tribunal had rejected the Bank of Canada
prime rate for no good reason, it was subject to review by the
Review Tribunal which did not commit reviewable error in
selecting the Canada Savings Bond rate.
Per Marceau J.A.: It was sufficient to show a mere possibil
ity that the complainant would have secured a position to cre
ate a right to compensation. Evidence that employment could
have been denied was relevant to the amount of compensation
to be awarded. In any event, the conclusion of the initial Tribu
nal, that there was no uncertainty that Morgan would have
been re-enrolled was a finding of fact, which could not be said
to have been reached in complete disregard of the evidence.
Having concluded that the original Tribunal had not committed
any palpable and overriding error in this respect, the Review
Tribunal was not entitled to intervene.
The initial Tribunal and the majority members of the
Review Tribunal erred in refusing to establish a cut-off point
for the period of compensation, independent of the order of
reinstatement. The principles developed in tort cases to restore
the victim to the position he would have enjoyed, but for the
wrongful act, apply to human rights cases. Therefore the con
sequences of the act that were indirect or too remote must be
excluded from the damages recoverable. The minority member
was the only one to analyze the circumstances of the case to
establish a cut-off point and his conclusion should be accepted.
The majority of the Review Tribunal erred in considering
the claimant's three-year delay in making his complaint in
assessing the damages. The task was to assess the damages
resulting from the discriminatory act. That assessment could
not be affected by the date of the complaint. The deduction
from recovery in respect of the delay was a penalty, and noth
ing in the legislation authorizes a tribunal to so penalize a
claimant. The minority member's determination of the period
of compensation should be accepted.
The Review Tribunal should not have interfered with the
initial Tribunal's finding as to mitigation. The question of miti
gation was a mixed question of law and fact, but the disagree
ment of the Review Tribunal rested wholly on an appreciation
of the evidence. As the initial Tribunal neither misconceived
the law nor misapprehended the evidence its conclusions
should not have been disturbed. Its deductions for failure to
mitigate should be restored.
There is no specific provision expressly granting human
rights tribunals the power to award interest. The Tribunals cor
rectly held that their power to assure the victim adequate com
pensation entitled them to award interest. However, the award
ing of interest is not left to the discretion of the tribunal. It
should be awarded only if necessary to cover the loss. There
were no special circumstances that would support a finding
that interest higher than that consented to by the Commission
and the complainant was required to cover the loss. Interest is
granted as compensation and the loss which it is meant to
cover must be established by evidence. In view of the admis
sion of liability, the claimant was entitled to be reinstated and
receive full compensation from the moment of the claim. Had
this been done, the money paid would have been available for
permanent investment. Since neither the CIBC nor the Bank of
Canada prime rates are applicable to loss of income from
investment, the Canada Savings Bond rate should be applied.
Compound interest is warranted only if required to cover the
loss. The evidence did not establish that to be the case.
The Review Tribunal had no ground to interfere with the ini
tial Tribunal's award of interest for hurt feelings.
Per MacGuigan J.A. (dissenting): A tribunal is entitled to
look at the probable result of the whole process. The result
does not have to be certain, but must be based on the best
inference the tribunal can make from the facts. The initial Tri
bunal found as a fact that the applicant was rejected because of
his medical record. The Review Tribunal can only intervene
with respect to a factual finding where there is palpable and
overriding error. It correctly refused to intervene.
It is implicit in the Act that the damages awarded must flow
from the discriminatory practice. The language of paragraph
53(2)(c) establishes a clear causal connection between the
wages awarded and the discrimination. The majority of the
Review Tribunal erred in considering Morgan's long delay in
making his complaint. There was no legal basis for doing so,
except through the power in the Commission to weigh this fac
tor. A tribunal has jurisdiction to grant only the remedies found
in section 53, which do not include monetarily penalizing a
complainant for late filing. The period of compensation must
commence at the time of the discriminatory practice. Deduc
tion from Morgan's recovery of the period during which he
attempted to mitigate his damages by trying to re-enrol would
be a such penalty, and not in keeping with the remedial and
compensatory purpose of the Act.
Five and a half years of the delay may be attributed to the
Commission. Sections 43, 44 and 49 suggest a process where
time is, if not of the essence, at least of relevance. One year
would normally be a reasonable period of time for the Com
mission to investigate and decide whether to proceed to a tribu
nal, but so as not to confine it within an unduly procrustean
timetable, where there is no satisfactory explanation by the
Commission, it should be presumed by a tribunal that two
years between complaint and tribunal is an outside limit for the
Commission's internal processes. Therefore the delay by the
Commission beyond a two-year processing period should not
be taken into account in setting lost wages since beyond that
time there could not be any causal connection between the dis
criminatory practice and the wages awarded. The causal con
nection established by the Act must be respected regardless of
the suffering imposed thereby on a successful complainant. It
would be equitable for the Commission to pay any lost wages
for the additional two years or more. The intolerable delay in
processing this complaint calls into question the resources
made available to the Canadian Human Rights Commission.
The Review Tribunal erred in disregarding two instances of
the respondent voluntarily leaving jobs. The reasonableness of
steps taken to mitigate damages must be ascertained in the
context of all the circumstances. These were not isolated
instances, but a pattern of conduct to be considered.
Tribunals have discretion to award interest on the award for
hurt feelings, but the Review Tribunal erred in increasing the
award without sufficient reason to revisit the Tribunal's discre
tion. Paragraph 53(2)(c), which is concerned specifically with
wage compensation, permits awards of interest on any amounts
awarded for lost wages. The notion of adequately compensat
ing a victim includes a reasonable return on the money, the use
of which was lost because of the discriminatory practice. Such
interest is not limited to the $5,000 set out in subsection 53(3).
The Review Tribunal erred in reversing the Tribunal on the
rate of interest without stated justification. As the Act does not
expressly permit interest, it cannot be said that only the Bank
of Canada rate is permitted. The rate must remain within the
discretion of a tribunal, but the Bank of Canada prime rate
should be the usual rate, except in special circumstances.
Whether to award simple or compound interest is within the
discretion of the tribunal, but simple interest should be the
norm and that is provided for by legislation in the jurisdiction
where the litigation arose.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss.
41(e), 43 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s.
63), 44(1),(3) (as am. idem, s. 64), 49(1) (as am. idem,
s. 66), (1.1) (as am. idem), 53(2),(3), 55, 56(3),(4),(5).
Court Order Interest Act, R.S.B.C. 1979, c. 76, s. 2.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Broadcasting Corp. v. C.U.P.E., [1987] 3 F.C.
515; (1987), 38 D.L.R. (4th) 617; 76 N.R. 155 (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.);
DeJager v. Canada (Department of National Defence)
(1987), 8 C.H.R.R. D/3963 (C.H.R. Trib.).
CONSIDERED:
Canada (Attorney General) v. McAlpine, [1989] 3 F.C.
530; (1989), 99 N.R. 221 (C.A.); Torres v. Royalty Kitch
enware Limited (1982), 3 C.H.R.R. D/858 (Ont. Bd. of
Inquiry); Asamera Oil Corporation Ltd. v. Sea Oil &
General Corporation et al., [1979] 1 S.C.R. 633; (1978),
12 A.R. 271; 89 D.L.R. (3d) 1; [1978] 6 W.W.R. 301; 5
B.L.R. 225; 23 N.R. 181; Seneca College of Applied Arts
and Technology v. Bhadauria, [1981] 2 S.C.R. 181;
(1981), 124 D.L.R. (3d) 193; 14 B.L.R. 157; 17 C.C.L.T.
106; 2 C.H.R.R. D/468; 81 CLLC 14,117; 22 C.P.C. 130;
37 N.R. 455; Morgan v. Canada (Canadian Armed
Forces) (1989), 10 C.H.R.R. D/6386 (C.H.R. Trib.);
Cashin v. Canadian Broadcasting Corp. (No. 2) (1990),
12 C.H.R.R. D/222; 90 CLLC 17,017 (C.H.R. Trib.);
Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B.
229 (C.A.); Cashin v. Canadian Broadcasting Corpora
tion, [1984] 2 F.C. 209; (1984), 8 D.L.R. (4th) 622; 8
Admin. L.R. 161; 5 C.H.R.R. D/2234; 84 CLLC 17,009;
55 N.R. 112 (C.A.).
REFERRED TO:
Chandris v. Isbrandtsen-Moller Co. Inc., [1951] 1 K.B.
240 (C.A.); Minister of Highways for British Columbia v.
Richland Estates Ltd. (1973), 4 L.C.R. 85 (B.C.C.A.); Re
Westcoast Transmission Co. Ltd. and Majestic Wiley Con
tractors Ltd. (1982), 139 D.L.R. (3d) 97; [1982] 6
W.W.R. 149; 38 B.C.L.R. 310 (B.C.C.A.); Cashin v.
Canadian Broadcasting Corporation, [1988] 3 F.C. 494;
(1988), 9 C.H.R.R. D/5343; 88 CLLC 17,019; 86 N.R. 24
(C.A.); 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.
AUTHORS CITED
Waddams, S. M. The Law of Damages, Toronto: Canada
Law Book Ltd., 1983.
APPLICATION and cross-application to set aside
a Human Rights Review Tribunal decision, [Morgan
v. Canada (Armed Forces) (1990), 13 C.H.R.R.
D/42] varying the remedies awarded by the initial
Tribunal. Application and cross-application allowed
in part.
COUNSEL:
Barbara A. Mclsaac for Attorney General of
Canada, applicant in A-727-90 and Canadian
Armed Forces, respondent in A-741-90.
Peter C. Engelmann for Canadian Human
Rights Commission, respondent in A-727-90,
applicant in A-741-90.
SOLICITORS:
Deputy Attorney General of Canada for Attor
ney General of Canada, applicant in A-727-90
and Canadian Armed Forces, respondent in
A-741-90.
Canadian Human Rights Commission for Cana-
dian Human Rights Commission, respondent in
A-727-90, applicant in A-741-90.
The following are the reasons for judgment ren
dered in English by
MAHONEY J.A.: I have had the advantage of reading
in draft the reasons for judgment of my colleagues
Marceau J.A. and MacGuigan J.A. They are in agree
ment on most of the issues raised in these proceed
ings and I do not disagree with them in their areas of
agreement. However, they are in disagreement on a
number of issues, even where they agree in the result.
Again, I do not disagree with them in such a result. I
find it unavoidable that I briefly express my own rea
sons for the conclusions I have reached on points
where they have not found agreement.
Firstly, while both agree that Richard Roderick
Morgan was denied a position of employment in the
Canadian Armed Forces by the discriminatory action
of the Forces, as opposed merely to losing an oppor
tunity for employment, all as found by the Tribunal
[(1989), 10 C.H.R.R. D/6386] and accepted unani
mously by the Review Tribunal [(1990), 13 C.H.R.R.
D/42], they disagree as to what was required to be
proved in order that the conclusion be sustained. The
liability of the Forces to compensate Morgan for
wages lost depends on the finding that he had lost a
position. Mr. Justice MacGuigan would have it that a
probability of actual loss of position be established
while Mr. Justice Marceau would accept proof of a
serious possibility of its having been lost.
However necessary it may be in another case to
reach a concluded opinion on one or the other side of
this disagreement, it seems to me unnecessary here.
The Tribunal and the Review Tribunal, unanimously,
found there was a loss of position. As Mr. Justice
MacGuigan has shown in his review of the evidence,
the more onerous burden of establishing that as a
probability had been discharged. I therefore agree
with my colleagues in the result.
Secondly, the Tribunal considered that compensa
tion for lost wages under paragraph 53(2)(c) [Cana-
dian Human Rights Act, R.S.C., 1985, c. H-6] should
normally continue up to the date of its hearing. A
majority of the Review Tribunal held that, when an
order of reinstatement is made, the compensation
should continue until the order is complied with. Par
agraph 53(2)(c) provides for compensation of "any or
all of the wages that the victim was deprived of ...
as a result of the discriminatory practice". I agree
with my colleagues that there must be a causal con
nection between the discriminatory practice and the
amount of wages found to have been lost as a result
of it. It would be sheer coincidence if that amount
were the amount attributable to either period selected
by the Tribunal or the majority of the Review Tribu
nal. The cut-off dates chosen by them are arbitrary
and have no rational connection to the required find-
i ng.
I also agree with my colleagues that the time dur
ing which a causal connection exists is a matter to be
determined in the circumstances of each case. How
ever, Mr. Justice MacGuigan appears to consider that
the time taken by the Commission to process a com
plaint may be relevant to that inquiry. With respect, I
do not agree. Nor do I think that the victim's delay in
complaining nor, for that matter, time consumed in
proceedings before a tribunal or review tribunal until
an order, whether of reinstatement or otherwise, is
made can be relevant to it.
In the present circumstances, I agree with Mr. Jus
tice Marceau that the determination of the dissenting
member of the Review Tribunal, the only adjudicator
below who properly addressed the matter, should be
accepted.
Thirdly, as to mitigation, Mr. Justice MacGuigan
would have the Review Tribunal consider Morgan's
pattern of voluntarily quitting jobs while Mr. Justice
Marceau has stipulated amounts in each relevant year
by which any award should be reduced for failure to
mitigate. The amounts stipulated are amounts fixed,
for the particular years, by the original Tribunal and
they do take account of Morgan's failure to retain
particular positions but not the pattern of voluntarily
leaving jobs.
While I do not disagree with the principles upon
which Mr. Justice MacGuigan has reached his con
clusion and certainly agree that a pattern of voluntary
job leaving is highly relevant to the question of miti
gation, it seems to me that no useful purpose would
be served by reconstituting the Review Tribunal
except in a pro forma fashion. It is apparent that no
additional relevant evidence is to be had. The Tribu
nal took account of the financial consequences of
Morgan having voluntarily left jobs. It arrived at its
findings on the evidence it had and which it recog
nized as not entirely satisfactory. Its findings, which
Mr. Justice Marceau would restore, cannot be said to
have been reached on a basis in which either the
Review Tribunal or this Court could appropriately
find reviewable error.
Fourthly, as to interest, my colleagues agree that,
in the circumstances, compound interest was unwar
ranted and that the Review Tribunal erred in varying
the award by the Tribunal under paragraph 53(3)(b)
from $1,000 with interest to $2,500 without interest,
but, as I understand their reasons, disagree as to the
appropriate rate. Mr. Justice Marceau would accept
the Canada Savings Bond rate which the Review Tri
bunal substituted for the prime rate charged by the
Canadian Imperial Bank of Commerce [CIBC] to its
most credit worthy customers selected by the Tribu
nal. Mr. Justice MacGuigan would leave it to the dis
cretion of the Review Tribunal while indicating that
the Bank of Canada prime rate should be the norm
absent special circumstances. Since the Tribunal had
rejected the Bank of Canada prime rate for no good
reason—it is at least as easy to ascertain as the
CIBC's prime rate at various dates since 1980—it left
itself open to the Review Tribunal selecting a differ
ent rate. I am not persuaded that the Review Tribunal
committed a reviewable error in selecting the Canada
Savings Bond rate. I would therefore make the direc
tion as to interest proposed by Mr. Justice Marceau.
I would allow both the application and cross-appli
cation, set aside the decision of the Review Tribunal
and remit the matter to the Review Tribunal for
reconsideration in accordance with the conclusions of
Mr. Justice Marceau.
The following are the reasons for judgment ren
dered in English by
MARCEAU J.A.: This application and cross-applica
tion are brought under section 28 of the Federal
Court Act [R.S.C., 1985, c. F-7] and directed against
a decision of a review tribunal appointed under the
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
They may appear, at first, to be of somewhat limited
interest, concerned as they are only with the amount
of money awarded a claimant as compensation for his
having been the subject of a discriminatory act. The
fact is, however, that their disposition may be much
broader than the settling of the immediate litigation
as they involve principles of general application pre
viously unaddressed by this Court in a similar con
text.
I have had the advantage of reading the reasons for
judgment prepared by my brother MacGuigan J.A.
Unfortunately, my approach in dealing with the vari
ous issues raised has led me to conclusions somewhat
different from his. In view of the possible signifi
cance of this judgment, I think I ought to explain
quickly, with respect, my own views of the matter.
It would serve no purpose to review the facts
again. Their description is not critical to what I have
to say. I may have to make allusion to some of them
in more detail in the course of discussion, but at this
moment only the very basic ones need be repeated.
The impugned lengthy decision (94 pages) is that of a
three-member Tribunal sitting in review of a first
instance decision rendered by a one-member Tribu
nal. Their mandate was to determine the remedies to
which a complainant, Morgan, was entitled. Ten
years previously, Morgan had been refused enrolment
into the Armed Forces in an "improper fashion" that
amounted, in the view of all concerned, to prohibited
discrimination. By that decision, the Review Tribunal
upheld the requirement of the initial Tribunal that the
complainant be reinstated, but it varied the amount of
the monetary compensation the Forces had to pay
him. As explained by Mr. Justice MacGuigan, the
issues to be considered are all concerned with the
conclusions reached as to that monetary compensa
tion. I will discuss them in the order followed by my
colleague.
1. The first issue has to do with the identification
of the loss that had to be compensated. The Attorney
General still, as he has from the start, contends that
the claimant has lost only an opportunity to compete
for a position, not a position per se as accepted by the
initial Tribunal and confirmed by the Review Tribu
nal.
I have great difficulty with the proposition adopted
by the Review Tribunal and accepted by my col
league that it was sufficient to look at the probable
result of the recruiting process to be able to draw the
conclusion that the loss was that of a job rather than a
mere opportunity. We are not dealing with the estab
lishment of a past fact which in a civil court need
only be proved on a balance of probabilities. Nor are
we concerned with the relation between a particular
result and its alleged cause. It seems to me that the
proof of the existence of a real loss and its connection
with the discriminatory act should not be confused
with that of its extent. To establish that real damage
was actually suffered creating a right to compensa
tion, it was not required to prove that, without the
discriminatory practice, the position would certainly
have been obtained. Indeed, to establish actual dam
age, one does not require a probability. In my view, a
mere possibility, provided it was a serious one, is suf
ficient to prove its reality. But, to establish the extent
of that damage and evaluate the monetary compensa
tion to which it could give rise, I do not see how it
would be possible to simply disregard evidence that
the job could have been denied in any event. The
presence of such uncertainty would prevent an
assessment of the damages to the same amount as if
no such uncertainty existed. The amount would have
had to be reduced to the extent of such uncertainty.
That being said, I nevertheless share the view of
my colleague that the applicant's argument on this
point must fail. 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 obvi
ously a finding of fact which could not be said to
have been reached in complete disregard of the evi
dence. Having come to the conclusion that the origi
nal Tribunal had not committed in this respect any
palpable and overriding error, 1 the Review Tribunal
was not entitled to intervene. We, in turn, are simi
larly disentitled.
2. The second issue, the calculation of the compen
sation for lost wages, is much more involved and
complex. As explained by my colleague, the Review
Tribunal unanimously concluded that the decision of
the initial Tribunal had to be varied but it disagreed
as to what should be substituted therefor. The disa
greement was as to whether a "cap" or "cut-off point"
had to be established in determining the period of
compensation. For the majority, in human rights
cases, an order of reinstatement dispelled any reason
to end the period of compensation before actual rein
statement. In the case at bar, however, in view of the
claimant's excessive delay (39 months) in bringing
his complaint, that period should start only 27
months after the date his application for re-enrolment
had been unduly refused. For the minority member,
the doctrine of "foreseeability" developed in tort law
was applicable and a cut-off date had to be estab
lished. But there was no reason not to start the period
of compensation on the very date Morgan would
have been actually enrolled if his application had not
been wrongly refused. His conclusion was that the
period should start on July 21, 1980, but it could not
extend beyond what appeared reasonable, namely
some three years and five months later. On the other
hand, neither the majority nor the minority could
accept the initial Tribunal's decision to deduct any
1 Cashin v. Canadian Broadcasting Corporation, [1988] 3
F.C. 494 (C.A.), at p. 501.
amount based on the claimant's alleged failure to
mitigate from the wage total payable during the
period of compensation.
This second issue relating to the amount of com
pensation raises three questions which concern: (a)
the limitation of the compensation period; (b) the
subtraction of months for the delay in filing the com
plaint; (c) the deduction for failure to mitigate.
(a) Reading the comments of the Chairman of the
initial Tribunal and those of the Review Tribunal
majority, I am afraid, I say it with respect, that there
exists some confusion between the right to obtain
reparation for a damage sustained and the assessment
of that damage. While the particular nature of the
human rights legislation — which has been said to be
so basic as to be near-constitutional and in no way an
extension of the law of tort (see e.g. Robichaud v.
Brennan (sub nom. Robichaud v. Canada (Treasury
Board), [1987] 2 S.C.R. 84, at page 89, and
Bhadauria v. Board of Governors of Seneca College
(sub nom. Seneca College of Applied Arts and Tech
nology v. Bhadauria), [1981] 2 S.C.R. 181)—renders
unjustifiable the importation of the limitations to the
right to obtain compensation applicable in tort law,
the assessment of the damages recoverable by a vic
tim cannot be governed by different rules. In both
fields, the goal is exactly the same: make the victim
whole for the damage caused by the act source of lia
bility. Any other goal would simply lead to an unjust
enrichment and a parallel unjust impoverishment.
The principles developed by the courts to achieve
that goal in dealing with tort liability are therefore
necessarily applicable. It is well known that one of
those principles has been to exclude from the dam
ages recoverable the consequences of the act that
were only indirect or too remote. In my view, the
minority member was perfectly right in writing (at
pages D/74-D/75):
If reinstatement is purely discretionary and compensation is
less so then it seems to me certain well-known accepted princi
ples of compensatory damages should guide the Tribunal in
assessing or quantifying the financial loss. These principles are
quoted with approval by the Review Tribunal in the Foreman
(Can. Rev. Trib.) case, supra, [Foreman v. Via Rail Canada
Inc. (1980), 1 C.H.R.R. D/233] as follows at para. 7716 [D/869
of Torres, supra]:
In our view the use of the language of "compensation" by
the Canadian Act implies that tribunals are to apply the prin
ciples applied by courts when awarding compensatory dam
ages in civil legislation. The root principle of the civil law of
damages is "restitutio in integrum": the injured party should
be put back into the position he or she would have enjoyed
had the wrong not occurred, to the extent that money is
capable of doing so, subject to the injured party's obligation
to take reasonable steps to mitigate his or her losses. (D/238)
In a recent case, Canada (Attorney General) v. McAlpine,
supra [[1989] 3 F.C. 530], the Federal Court of Appeal, on
appeal from a decision of a human rights tribunal which relied
on that principle in assessing damages for lost U.I.C. benefits,
commented as follows at p. 538 [para. 13, D/258]:
... the proper test must also take into account remoteness
or foreseeability where the action is one of contract or tort.
Only such part of the loss resulting as is reasonably foresee
able is recoverable.
The Federal Court goes on to quote with approval from Profes
sor Cumming in the Torres case, supra [Torres v. Royalty
Kitchenware Ltd. (1982), 3 C.H.R.R. D/858 (Ont. Bd. Inq.)],
with respect to a cut-off point in awarding general damages,
and notes the rationale quoted was followed by the Review Tri
bunal in De)ager v. Canada (Dept. of National Defence) (No.
2), supra [(1987), 8 C.H.R.R. D/3963], at D/3966 and D/3967,
and also in other decisions where human rights tribunals have
accepted the doctrine of reasonable foreseeability as a neces
sary component in the assessment of damages.
It follows from the interpretation I have placed on the reme
dial provisions of the Act the duration of the compensatory
period need not coincide with the reinstatement whenever it
may occur. Much less that it is automatically determined by
the order for reinstatement. This is the crux of the matter on
which I part company with my colleagues. I would agree that if
the victim of the discriminatory act were fired from a position
he actually occupied and if reinstatement were to take place
soon thereafter the duration of the compensatory period would
logically coincide with that happening. What we have here, on
the other hand, is a notional loss of a position in which the
respondent was not employed when the discriminatory act
occurred.
I think one should not be too concerned by the use
of various concepts in order to give effect to the sim
ple idea that common sense required that some.limits
be placed upon liability for the consequences flowing
from an act, absent maybe bad faith. Reference is
made at times to foreseeable consequences, a test
more appropriate, it seems to me, in contract law. At
other times, standards such as direct consequences or
reasonably closely connected consequences are men
tioned. The idea is always the same: exclude conse
quences 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.
It has been found, I know, that the practice devel
oped in cases of wrongful dismissal with respect to
the assessment of the lost wages was not necessarily
applicable to cases of job loss attributable to discrim
inatory treatment. Note that, in cases of wrongful dis
missal, the act for which the employer is reproached
is not to have put an end to the employment but to
have done so without proper notice or in contraven
tion of the terms of a contract. The nature of the act
source of liability is different, therefore the conse
quences flowing from it ought to be different.
In my view, the initial Tribunal and the majority
members of the Review Tribunal were wrong in
refusing to establish a cap or cut-off point for the
period of compensation, independent of the order of
reinstatement. The establishment of that cut-off point
was, as it is in all such cases, a difficult exercise
requiring a careful analysis of the circumstances of
the case. The minority member is the only one who
has gone through the exercise and I think this Court,
instead of ordering a new hearing, should accept his
conclusion, a conclusion that had previously been
reached, in similar circumstances, in the case of
DeJager v. Canada (Department of National
Defence) (1987), 8 C.H.R.R. D/3963 (C.H.R. Trib.).
(b) The second question, relating to the subtraction
of months to account for the late filing of the com
plaint, appears to me easy to settle. I simply fail to
understand on what basis the majority members could
take into account the claimant's three-year delay in
making his complaint. They certainly could not con
sider that the bringing of the complaint sooner was
part of the duty to mitigate, and they do not express
that view. So how could the delay come into play in
assessing the damages? I can see that, for one who
adopts the premise that the damages must run until
reinstatement, the claimant's delay in seeking an
order to that effect can be seen as having had the
effect of extending the period. But the premise is
wrong. The problem is to assess the damages result
ing from the loss of wages due to the act source of
liability. I do not see how that assessment could be
affected by the date of the complaint. The deduction
of the three-year period from recovery could only be
a penalty and obviously nothing in the legislation
could be interpreted as authorizing a tribunal to so
penalize a claimant. So I readily agree with my col
league that the cross-appeal, in this respect, must be
allowed.
(c) The third question about mitigation also
appears to me, at this stage, relatively simple. There
is no point of law involved here; both tribunals
admitted that the assessment of damages had to be
made subject to the long established common-law
duty to mitigate and their understanding of the con
tent of that duty was essentially similar. Nevertheless,
the Review Tribunal saw fit to intervene because it
felt the initial Tribunal's approach to the problem had
been too simplistic. In its opinion, for instance, the
claimant, considering all factors, could not be
reproached for having left without reason, in 1980
and 1981, two employment situations which paid him
as much as what he would have earned in the Forces
at the time.
I do not think this intervention of the Review Tri
bunal was warranted. While this question of mitiga
tion was a mixed question of law and fact, the disa
greement 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.
So, on this issue relating to the amount of compen
sation, I am forced to respectfully disagree with my
brother MacGuigan J.A. I would accept the period of
compensation determined by the minority member,
that is to say from July 1980 to December 1983.
However, I would restore the conclusion of the initial
Tribunal that the respondent failed in his duty to miti
gate his damages during these years for amounts of
$4,092.56 in 1980, $4,767.57 in 1981, $901.46 in
1982 and $4,861.80 in 1983.
3. The third issue concerns the award of interest on
both the main amount of compensation for lost wages
and the subsidiary one for hurt feelings.
(a) On the compensation for lost wages, the initial
Tribunal awarded interest, compounded semi-annu
ally, at the rate charged by the Canadian Imperial
Bank of Commerce with respect to its most worthy
customers. The Review Tribunal substituted a differ
ent rate, namely that of the Canada Savings Bonds.
The issue here again must be looked into in succes
sive stages: (i) was it within the powers of the tribu
nals to award interest; (ii) if it was, from what date, at
what rate and on which amount could interest be
awarded; and finally (iii) was it justified that the
interest be compounded?
(i) There is no specific provision expressly grant
ing human rights tribunals the power to give inter
est and this Court has not yet been faced directly
with the question. Nevertheless, I agree with Mr.
Justice MacGuigan that the tribunals were right in
considering that their power to assure the victim
adequate compensation entitled them to award
interest. This is indeed a common sense conclusion
that this Court had no difficulty to apply in its
decisions in Canadian Broadcasting Corp. v.
C.U.P.E., [1987] 3 F.C. 515 and Canada (Attorney
General) v. Rosin, [1991] 1 F.C. 391. It should be
carefully noted, however, that in this perspective
the awarding of interest is not left to the discretion
of the tribunal nor is it solely based on the general
idea applicable in tort or contract liability claims
that the defendant has kept the plaintiff out of
money while he has had the use of it himself. It
must be required if, but only if, it can be seen to be
necessary to cover the loss. This reflection is at the
basis of my reaction in coming to the other ques
tions relative to interest.
(ii) With respect to these other questions, my col
league has quoted a passage of the decision of the
initial Tribunal, the first paragraph of which I
reproduce again [at page 6406]:
In this case, counsel for the respondent submitted that if
interest is awarded, the rate of interest should be 5 percent
because that is the rate of interest provided by s. 3 of the
Canada Interest Act. Although both counsel for the respon
dent and the Commission submitted that they were prepared
to accept an interest rate of 5 percent, I do not think that the
rate should be restricted to 5 percent.
I am disturbed by that decision of the Chairman to
discard the consent of the claimant and the Com
mission to accept 5 percent. I am not so much
influenced by the fact that, in so doing, the Chair
man was in a sense going beyond the claim, since I
do not think that the doctrine of ultra petita could
have direct application here. I am impressed
though by the fact that there is absolutely no refer
ence to special circumstances that could support a
finding that a higher interest was required to cover
the loss. Nothing in the evidence even remotely
suggested that the claimant had had to substitute
his lost wages by borrowed money on which he
had paid interest or that he would have earned
interest on his wages or a portion thereof had he
not been deprived of them. Again, it is as compen
sation that interest is granted and, in my judgment,
the loss which it is meant to cover must be estab
lished by some evidence.
On the facts of the case, however, in view of the
admission of liability by the Armed Forces, it
seems to me that from the moment of the claim,
the claimant was entitled to be reinstated and, at
the same time, receive full compensation. If this
had been done, the money paid to him as compen
sation would have been readily available for per
manent investment. His daily needs would have
been satisfied by the normal wages to which he
would have become entitled again. As to the rate,
since we speak of the loss of income resulting
from investment, I would agree with the Review
Tribunal that neither the Canadian Imperial Bank
of Commerce nor the Bank of Canada prime rates
are appropriate. I too would adopt the Canada Sav
ings Bonds rate and make it applicable to the
amount of compensation year after year until pay
ment.
(iii) As to whether it was right for the tribunals to
award compound interest, the answer must be
arrived at taking the same approach. 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. I
quickly agree with my colleague that that was cer
tainly not the case here.
(b) There remains the question of the award of
interest on the compensation for hurt feelings. As
explained by my colleague, the Review Tribunal here
again refused to uphold the decision of the initial Tri
bunal, expressing the view that an award of interest
on such a compensation was not permitted by law. I
agree with my colleague that the decision of this
Court in Canada (Attorney General) v. Rosin, supra,
has settled this question. The Review Tribunal had no
ground to interfere with the Tribunal's conclusion.
Summing up my own views, I would suggest that
the Review Tribunal was in error: (a) in considering a
period of compensation longer than that suggested by
the minority member; (b) in decreasing the period of
compensation based on the claimant's delay in filing
his complaint; (c) in interfering with the initial Tribu
nal's conclusion regarding the deduction made from
compensation otherwise payable during the years
1980 and 1981 for failure to mitigate; (d) in awarding
more than simple interest, at the Canada Savings
Bonds rate, from the date of the complaint; and (e) in
interfering with the conclusion of the initial Tribunal
in respect of the amount of compensation for hurt
feelings and the interest thereon. I would, like my
brother MacGuigan J.A., grant in part both the appli
cation and the cross-application and I would set aside
the impugned decision, but in sending the matter
back to the Tribunal for reconsideration, I would give
directives in accordance with these conclusions.
The following are the reasons for judgment ren
dered in English by
MACGUIGAN J.A. (dissenting): The section 28
application in A-727-90 is directed against a decision
dated September 14, 1990 of a review tribunal
appointed under the Canadian Human Rights Act,
R.S.C., 1985, c. H-6 ("the Act"). In that decision, the
Review Tribunal varied a decision dated March 8,
1989 of a Tribunal appointed under the Act to deal
with a complaint brought by the first respondent,
Richard Roderick Morgan ("Morgan"). Review is
sought in this Court of the remedies awarded.
A cross-application has been brought in A-741-90
by the Canadian Human Rights Commission ("the
Commission") against the decision of the Review
Tribunal. Pursuant to the directive of the Court, the
same record was used on both section 28 applica
tions, and they were argued together.
Morgan served as an infantryman with the Cana-
dian Armed Forces ("the Canadian Forces") from
November 21, 1973 to March 30, 1978. In 1975,
while off-duty, he suffered a serious head injury in a
motor vehicle accident which left him unconscious
for eight weeks and unable to return to work for a
year. As a consequence, he was given a medical dis
charge from the Canadian Forces in March of 1978.
In June of 1979, Morgan applied to re-enrol in the
Canadian Forces. He successfully passed the first
steps in the recruiting process, but was informed by
letter dated April 17, 1980 that, as a result of a com
plete review of his file, he was "not considered medi
cally fit for re-enrolment" (Case V, at page 882). It
should also be noted that, because of a judicial obli
gation which he had outstanding, he could not in any
event have been enrolled before July 21, 1980, which
therefore ought to be considered to be effectively the
date of the discriminatory act in this case. In Febru-
ary of 1982, Morgan enquired again about re-enrol
ment into the Canadian Forces, but was again
refused. He then brought a complaint under the Act
on July 31, 1983. It was nearly five years later, June
9, 1988, that notice of the appointment of a Canadian
Human Rights Tribunal was given, an unexplained
delay of which more will be said in due course.
At the time of Morgan's rejection in 1980, his
most recent medical examination by a base physician
reported that he was fit for enrolment. This examina
tion was occasioned by Morgan's attempt to obtain a
disability pension on the basis of the brain damage
which he was previously diagnosed as having suf
fered. It was the clean bill of health he received on
this new examination that prompted him to apply for
re-enrolment. The Canadian Forces subsequently
admitted to an act of discrimination contrary to the
Act, and the legal proceedings taken have concerned
the remedies to be awarded.
The relevant provisions of the Act are as follows:
53....
(2) If, at the conclusion of its inquiry, a Tribunal finds that
the complaint to which the inquiry relates is substantiated, it
may, subject to subsection (4) and section 54, make an order
against the person found to be engaging or to have engaged in
the discriminatory practice and include in that order any of the
following terms that it considers appropriate:
(b) that the person make available to the victim of the dis
criminatory practice, on the first reasonable occasion, such
rights, opportunities or privileges as, in the opinion of the
Tribunal, are being or were denied the victim as a result of
the practice;
(c) that the person compensate the victim, as the Tribunal
may consider proper, 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; and
(d) that the person compensate the victim, as the Tribunal
may consider proper, for any or all additional cost of
obtaining alternative goods, services, facilities or accommo
dation and for any expenses incurred by the victim as a
result of the discriminatory practice.
(3) In addition to any order that the Tribunal may make pur
suant to subsection (2), if the Tribunal finds that
(a) a person is engaging or has engaged in a discriminatory
practice wilfully or recklessly, or
(b) the victim of the discriminatory practice has suffered in
respect of feelings or self-respect as a result of the practice,
the Tribunal may order the person to pay such compensation to
the victim, not exceeding five thousand dollars, as the Tribunal
may determine.
55. Where a Tribunal that made a decision or order was
composed of fewer than three members, the Commission, the
complainant before the Tribunal or the person against whom
the complaint was made may appeal the decision or order by
serving a notice, in a manner and form prescribed by order of
the Governor in Council, within thirty days after the decision
or order appealed was pronounced, on all persons who
received notice from the Tribunal under subsection 50(1).
56....
(3) An appeal lies to a Review Tribunal against a decision or
order of a Tribunal on any question of law or fact or mixed law
and fact.
(4) A Review Tribunal shall hear an appeal on the basis of
the record of the Tribunal whose decision or order is appealed
and of submissions of interested parties hut the Review Tribu
nal may, if in its opinion it is essential in the interests of justice
to do so, admit additional evidence or testimony.
(5) A Review Tribunal may dispose of an appeal under sec
tion 55 by dismissing it, or by allowing it and rendering the
decision or making the order that, in its opinion, the Tribunal
appealed against should have rendered or made.
The applicant contended in its factum that the
Review Tribunal was in error in the following
respects:
(1) in deciding that the admitted discriminatory
practice deprived Morgan of a position with the
Canadian Forces as opposed to an opportunity to
compete for a position;
(2) in ordering compensation for a period of time
that was unreasonable in the circumstances;
(3) in misdirecting itself in principle as to the sig
nificance of Morgan's failure to mitigate his dam
ages;
(4) in ordering interest exceeding the sum of
$5,000 on the award for loss of wages;
(5) in ordering compound interest on the award for
loss of wages;
(6) in failing to deduct the amounts received by
Morgan as unemployment insurance and social assis
tance benefits from the award for loss of wages.
The last contention was dropped in oral argument
and the fourth was not pressed. The remaining will
be dealt with in turn. To them must be added the
three issues raised by the Commission as cross-appli
cant, viz. that the Review Tribunal erred (a) in refus
ing to order interest on the amount awarded as com
pensation for hurt feelings, (b) in substituting the
Canada Savings Bonds rate of interest for the prime
rate of interest charged by the Canadian Imperial
Bank of Commerce, and (c) in taking into account,
with respect to compensation for lost wages, the com
plainant's delay in pursuing his claim under the Act.
These issues from the cross-application will be
merged with those in the application.
1. Loss of a Position
This challenge is mounted only in the application.
The applicant's contention that Morgan really lost
only an opportunity to compete for a position rather
than a position per se is based on the fact that, at the
time the discriminatory act occurred, there remained
two stages in the recruiting process through which
the candidate had to pass even if he had been recom
mended by the Unit Selection Board interviewer: (a)
the determination of whether a vacancy existed; (b)
the determination of the candidate's competitiveness
(Case V, at page 899).
The applicant's argument was as follows: (1) enti
tlement to compensation for loss of a position will
depend upon whether it is certain that the complain
ant would have obtained the position but for the dis
criminatory practice; (2) this determination will
depend upon the point in the hiring process at which
the complainant's application is rejected and upon
whether the discriminatory practice was the sole rea
son for the rejection of the complainant's application.
It was said that on the facts of this case a proper med
ical evaluation was never obtained, and, moreover,
that Morgan's application was rejected before he had
reached the end of the recruiting and selection pro-
cess, and that the success of his application was not
guaranteed even with a favourable medical evalua
tion.
The fundamental flaw with this argument is that it
rests on a purely static conception of the hiring pro
cess. A tribunal is surely not required to reach its
conclusion based only upon the stage actually
reached in that process. It is entitled to look at the
probable result of the whole process in the light of
the evidence before it. The result does not have to be
certain, but rather to be based on the best inference
the tribunal can make from the facts. Even more, the
process does not have to be foreshortened to the
actual stage reached, unless the evidence does not
permit the drawing of conclusions beyond that.
Here the Tribunal found as a fact that the medical
examination which had certified him as fit for enrol
ment had been conducted within the previous year
and was, therefore, still valid. In looking at the evi
dence as to vacancies and as to the candidate's com
petitiveness, the Tribunal said (at pages D/6392-
D/6393):
Evidence was tendered on behalf of the respondent to show
that during the year 1980 the armed forces received approxi
mately three times as many applications for enrolment as they
had positions available and consequently they were unable to
accept all of the applications which they received. Evidence
was also introduced that, at the time when the complainant
applied for re-enrolment, the armed forces were over strength
in the positions of cook, vehicle technician and mobile support
equipment operator. However, no evidence was tendered to
suggest that the respondent rejected the complainant's applica
tion on the basis that, in competition with applications of other
former service members, the complainant's skills, education
and other characteristics were less meritorious. Furthermore,
there is no evidence that the respondent rejected the complain
ant's application on the basis that all of the positions for which
he had applied were over strength.
Mr. Flewelling testified that when the complainant's appli
cation was considered by the enrolling authority at headquar
ters in Ottawa there were three concerns about the complain
ant's application. First, there was the concern with respect to
the medical advice that had been received from Dr. Pritchard.
Second, there was a concern about the complainant's rudeness
toward administrative staff and medical examination centre
staff. Third, there was a concern about the complainant's con
viction during the preceding year for an alcohol-related
offence (driving a motor vehicle with a blood alcohol content
in excess of .08). With respect to the second concern, Captain
Ujimoto of the Victoria Recruiting Centre was in a much better
position to assess any concern of this nature and he recom
mended that the complainant's application be accepted. With
respect to the third concern, Mr. Flewelling acknowledged
under cross-examination that it was not unusual for the Cana-
dian Armed Forces to enrol an applicant who has had a convic
tion for an alcohol-related offence. More importantly, how
ever, neither the second nor third "concerns" were expressed
as reasons for rejecting the complainant's application.
With respect to all of the above "possible" bases for
rejecting complainant's application, if they had in fact been a
reason for rejecting his application, surely they would have
been recorded in the documentation and communicated to the
complainant. Since there is no mention of these grounds, I con
clude that in the absence of the medical ground the respondent
would have accepted the complainant's application for re-
enrolment. Indeed, Mr. Flewelling testified that applicants for
re-enrolment who had not been out of the armed forces for a
long period were more favourably considered than applicants
with no previous military training because the cost of basic
training could be saved.
Consequently, I find that the only real reason the respondent
had for rejecting the complainant's application for re-enrol
ment in 1980 was his medical record, and the respondent has
admitted liability for failing to consider this aspect of the com
plainant's application in a proper fashion. On the evidence
before me, I find that the consequence of the respondent's fail
ure to properly consider the complainant's application was that
the complainant was denied a position of employment with the
respondent on the basis of a prohibited ground of discrimina
tion.
In point of fact, the evidence was even somewhat
stronger than indicated by the Tribunal, because the
applicant admitted in the course of argument that it
showed that there had been hirings during the rele
vant period in the areas in which Morgan had applied
for re-enrolment.
In my view, the Review Tribunal was correct when
it refused to intervene (at page D/53):
On the whole of the evidence this Tribunal is unable to con
clude that there was a " ... palpable overriding error" which
would justify setting aside the factual findings of the Chairman
that this was in fact the denial of a position of employment
arising from the discriminatory act by the appellant, as
opposed to a lost opportunity for employment and his findings
on this issue stand and that ground of appeal is dismissed.
It rightly thought that, like any appellate body, it
could intervene with respect to a factual finding only
in the case of a palpable and overriding error by the
first Tribunal.
In keeping with this understanding, the Review
Tribunal modified the Tribunal's order in only one
respect (at page D/53):
We are of the opinion that it would be inadvisable to inter
fere with the Chairman's discretion in awarding reinstatement,
except to limit the occupations or trades to be made available
to the respondent to that of cook, vehicle technician or mobile
support operator, because the respondent himself made it clear
when applying for re-enrolment that he was not interested in
the trade or occupation of infantryman. Moreover, duties and
responsibilities of an infantryman are demanding and require a
high standard of physical strength, stamina and confi
dence .... The respondent is now over thirty-two years of age
and in his evidence he acknowledges he is unsuited at the pre
sent time to resume the occupation of infantryman ....
The appeal therefore succeeds in part on this ground and the
order of the Chairman for reinstatement is to be varied accord
ingly.
I find this to be a justifiable emendation of the Tribu
nal's order, since it reflects Morgan's own evidence.
The application must therefore be dismissed in this
respect.
2. The Period of Compensation
This matter was raised in both the application and the
cross-application and it was also the issue on which
the Review Tribunal divided.
The Chairman, in dissent, took the view that, while
the purpose of the Act is to make whole (to provide
restitutio in integrum) the victim of a discriminatory
practice, this Court, in Canada (Attorney General) v.
McAlpine, [1989] 3 F.C. 530, following Chairman
Cumming in Torres v. Royalty Kitchenware Limited
(1982), 3 C.H.R.R. D/858 (Ont. Bd. of Inquiry), and
DeJager v. Canada (Department of National
Defence) (1987), 8 C.H.R.R. D/3963 (C.H.R. Trib.),
set limits on the concept by holding that only such
part of the actual loss resulting as is reasonably fore
seeable by the person engaging in the discriminatory
practice is recoverable.
The Chairman found as follows (at pages D/82-
D/83):
... ought the appellant to have reasonably foreseen that the
consequences of its discriminatory act would extend for some
six and one-half years after the event, or, longer if one accepts
my view of the evidence. With respect, it seems to me, the ini
tial Tribunal in awarding damages for that period of time after
making an adjustment of two and one-half years for failure to
lodge a complaint in a timely fashion, went far beyond what
was reasonably foreseeable. The six and one-half year period
for which compensation was awarded substantially exceeds the
respondent's service time with the Armed Forces.
In my opinion, the respondent will be fairly and adequately
compensated by ordering compensation from the beginning of
the earning period on July 15, 1980 as determined by the ini
tial Tribunal, to the end of 1983, i.e. December 31, 1983.
The majority of the Review Tribunal came to a dif
ferent conclusion (at pages D/66-D/67):
If however reinstatement is an appropriate order, as it is in
the case before this Review Tribunal, then in my [sic] view a
"cap" or cut-off point, or point of assuming responsibility, is
automatically built into the award by the reinstatement order.
The reinstatement order in itself contains the factor to make
the period of time or cut-off point determinate, that being the
date of actual reinstatement.
In our view, the application of the doctrine of reasonable
foreseeability, for purposes of providing a cut-off point, is
inappropriate to cases in which reinstatement is ordered, as
that order in itself contains a cut-off point.
We, therefore, in the case before this Review Tribunal, order
that compensation for lost wages continue from July 15, 1982
until the date the respondent is reinstated. The respondent did
not file his complaint until July 1983, some three years and
three months after the discriminatory act. We find this time to
be excessive and we accordingly do not award compensation
for approximately twenty-seven months of that period.
However, the majority hedged its bet by finding
that, even if the reasonable foreseeability test were to
be applied, the result would be the same (at page
D/67):
If our reasoning is not considered correct and if the doctrine
of reasonable foreseeability is applicable to cases in which
reinstatement is ordered, then it is our view that the tests of
reasonable foreseeability contained in that doctrine are com
plied with in this case without any change to the compensation
for lost wages that we have awarded to the respondent. It is in
our view very reasonable for a person carrying out a discrimi-
natory act to foresee that, in those cases in which reinstatement
is ordered, the compensation payable by him will include com
pensation for lost wages from the time of the discriminatory
act to the time of reinstatement. If such is not the case, the
person acting in a discriminatory manner will benefit by delays
and by the time that it takes to process a claim through the
mechanics of the human rights system. The aggrieved person is
prejudiced.
The notion of placing a cap on the amount to be
awarded for lost wages based on a principle of rea
sonable foreseeability is one that, to my mind, cannot
be deduced from McAlpine. In that case, an offer to
employ the complainant was withdrawn when it was
discovered that she was pregnant, since at that time it
was against departmental policy to employ pregnant
employees. The department admitted discrimination
and the issue was as to damages as a result of her
failure to receive unemployment insurance benefits,
the rationale being that, in the absence of the discrim
inatory act, she would have worked for 14 weeks,
more than enough to qualify her for unemployment
insurance benefits.
This Court held that what are now paragraphs
53(2)(b), (c) and (d) of the Act did not permit or
allow an award of compensation for foregone unem
ployment insurance benefits. That decision was the
only one necessary for the disposition of the case, but
the Court went on in obiter dicta to endorse the prin
ciple of reasonable foreseeability. 2 However, in my
opinion, the Court applied that principle only to the
kind of damages claimed: in other words, that it was
not reasonably foreseeable by an employer that such
an act of discrimination would lead to a loss of unem
ployment insurance benefits.
It is true that in Torres, which the Court cited, the
principle was applied to the quantum of damages, but
I believe that the Court did not turn its mind to that
issue. In fact, it had no need to do so, since the issue
before it was a matter of kind, not quantum. I would
therefore agree with the Tribunal in Cashin v. Cana-
2 Reasonable foreseeability might be said to be the common-
law principle whether the act was classified as being of con
tract or of tort: see Asamera Oil Corporation Ltd. v. Sea Oil &
General Corporation et al., [1979] 1 S.C.R. 633, at pp. 645 ff.
Estey J. concludes, at p. 673, that "the same principles of
remoteness will apply to the claims made whether they sound
in tort or contract."
dian Broadcasting Corp. (No. 2) (1990), 12 C.H.R.R.
D/222 (C.H.R. Trib.), in distinguishing McAlpine and
also with respect to the broader considerations
involved (at pages D/233-D/234):
The merits of McAlpine, supra, aside, it seems on its face to
be inappropriate to apply the tort test of foreseeability to dam
ages for discriminatory acts. The Supreme Court of Canada
has stated in Bhadauria v. Board of Governors of Seneca Col
lege (1981), 124 D.L.R. (3d) 193, [(sub nom. Seneca College
v. Bhadauria), 2 C.H.R.R. D/468] that there is no tort of dis
crimination. Moreover, that court has also expressed the view
that one should not try to fit human rights remedies into inap
propriate legal doctrines. For example, when asked in
Robichaud, supra, to decide whether an employer was liable
(vicariously or otherwise) for sexual harassment of an
employee by a supervisor, the Supreme Court looked first at
the purpose of the Act and the wording and intent of the reme
dies provided by the Act, avoiding the problem of determining
whether the employer's liability for discriminatory acts of its
employees fell under the tort doctrine of vicarious liability or
some other rubric. In the words of La Forest J. at p. 89
[D/4329]:
... considerable attention was given to various theories
supporting the liability of an employer for the acts of its
employees, such as vicarious liability in tort and strict liabil
ity in the quasi-criminal context. As Thurlow C.J. notes,
however, the place to start is necessarily with the Act, the
words of which, like those of other statutes, must be read in
light of its nature and purpose.
He goes on to state that the purpose of the Act is essentially to
remove discrimination rather than punish anti-social beha
viour. He then says, at p. 91 [D/4330]:
The interpretive principles I have set forth seem to me to be
largely dispositive of this case. To begin with, they dispose
of the argument that one should have reference to theories of
employer liability developed in the context of criminal or
quasi-criminal conduct. These are completely beside the
point as being fault-oriented, for, as we saw, the central pur
pose of a human rights Act is remedial -- to eradicate anti
social conditions without regard to the motives or intentions
of those who cause them.
In concluding that the Act contemplated the imposition of lia
bility on employers for all acts of their employees, La Forest J.
said that [at D/4331]: " ... It is unnecessary to attach any label
to this type of remedy; it is purely statutory."
This method of interpretation supports my view that the
wording of the Act itself in s. 41(2), interpreted in light of the
purpose of the legislation and the guidance provided by the
Supreme Court of Canada, is sufficiently clear to dispose of the
argument that the test of reasonable foreseeability should be
considered to be a limit on the damages for lost wages that can
be awarded. The section itself imposes its own limits, which
are that the tribunal may order that compensation for "any or
all" lost wages be awarded, "as the tribunal may consider
proper."
This is all right as far as it goes. A strict tort or
contract analogy should not be employed, since what
is in question is not a common-law action but a statu
tory remedy of a unique nature: see Seneca College
of Applied Arts and Technology v. Bhadauria, [1981]
2 S.C.R. 181, where the Supreme Court held that The
Ontario Human Rights Code [R.S.O. 1970, c. 318]
established neither a common-law tort, nor, it seems,
a statutory tort, since the regime of that Act is dis
tinctive, and has itself laid out the procedures for vin
dication of the public policy it embodies. As La For
est J. put it in Robichaud v. Canada (Treasury
Board), [1987] 2 S.C.R. 84, at page 91: "the central
purpose of a human rights Act is remedial—to eradi
cate anti-social conditions without regard to the
motives or intention of those who cause them." Sub
section 53(2) of the Act may be said to impose its
own ultimate limits, viz. the total of all lost wages,
but in my opinion it does not thereby establish the
total of lost wages, i.e. all wages from the date of the
discriminatory act to the date of reinstatement, as the
criterion to be followed in making an award.
Identifying the limits and the criterion was the
legal error into which, in my view, the majority of
the Review Tribunal fell when they said, in a passage
I have already cited at page 428:
If however reinstatement is an appropriate order, as it is in
the case before this Review Tribunal, then in my [sic] view a
"cap" or cut-off point, or point of assuming responsibility, is
automatically built into the award by the reinstatement order.
The reinstatement order in itself contains the factor to make
the period of time or cut-off point determinate, that being the
date of actual reinstatement. [Emphasis added.]
The appropriateness of reinstatement as a remedy
cannot be taken to establish the appropriateness of
the total period between the discriminatory act and
the reinstatement as the correct measure of the award
for wages. In my opinion, the criterion which is
implicit in the Act is that the damages awarded have
to flow from the discriminatory practice. Paragraph
53(2)(c) provides that the person found to have
engaged in the discriminatory practice "compensate
the victim, as the Tribunal may consider proper, 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" [my emphasis].
In other words, there is a clear requirement of causal
connection (for, as a result of) between the wages
awarded and the discrimination.
This seems to me to be probably what Heald J.A.
had in mind in McAlpine when he wrote (at page
538) that "the proper test must also take into account
remoteness or reasonable foreseeability," so that in
this sense a broader interpretation of McAlpine is jus
tifiable.
In the present case, what would constitute such a
causal connection? The principal difficulty to be con
sidered in this regard, I believe, is the appalling
length of time that has elapsed between the discrimi
natory act and the present, more than eleven years at
this point, which seems to point to a kind of interven
ing cause. In a triad of cases where legal delays had
amounted to some nine years, Allen v. Sir Alfred
McAlpine & Sons Ltd., [1968] 2 Q.B. 229 (C.A.), at
page 243, Lord Denning M.R. said:
In these three cases the law's delays have been intolerable.
They have lasted so long as to turn justice sour.
In the case at bar, the milk of justice may justly be
said to have curdled.
The minority member of the Review Tribunal
found this the most striking feature of the case (at
page D/70):
The most troubling and difficult aspect of this case to me is
the inordinate lapse of time between the occurrence of the dis-
criminatory act in April 1980 until January 1989 when the
matter was heard by the initial Tribunal.
I suspect the initial Tribunal, as well as my colleagues on
this Review Tribunal, were similarly troubled by the lapse of
time.
The majority was equally struck by the fact, but more
accepting of it (at page D/67):
The compensatory period in this case seems extreme, but for
whatever reasons, it has taken this length of time to process the
complaint through the human rights system. If there was any
evidence of the respondent contributing to a delay in the proce
dure, then that delay should be taken into account in the com
pensation award. But there is no such evidence. It does not
seem equitable or within the intent of the Human Rights Act
that a successful complainant should suffer because of the
length of time that it takes to proceed through the mechanics
established by the human rights legislation.
The first thing to be said is that there is no legal
basis for taking into account Morgan's long delay in
making his complaint, except, as the Commission
argued, through the power in the Commission itself
to weigh this factor. The period of compensation
must logically commence at the time of the discrimi
natory practice—in this case July 21, 1980. Where an
allegedly discriminatory act precedes the complaint
by more than a year, paragraph 41 (e) of the Act gives
the Commission discretion as to whether to receive
the complaint at all. But a tribunal has the jurisdiction
to grant only the remedies found in section 53, none
of which includes monetarily penalizing a complain
ant for late filing.
Morgan testified that he waited to file his com
plaint under the Act because he had continued to try
to get back into the Forces during that period. It
would be penalizing him for attempting to mitigate
his damages by trying to re-enrol for the Review Tri
bunal to deduct that period from his recovery, nor
would it be in keeping with the remedial and com
pensatory purpose of the Act. In my view, therefore,
the Review Tribunal majority was wrong in law in
altering that aspect of the Tribunal's decision. In this
respect, the cross-application must be allowed.
Second, it is impossible to pass over the almost-
five-year period between the complaint and the notice
of appointment of the Tribunal on June 9, 1988.
The Act provides that, after receiving a complaint,
the Commission may designate an investigator to
investigate it (section 43 [as am. by R.S.C., 1985 (1st
Supp.), c. 31, s. 63]), that the investigator shall "as
soon as possible after the conclusion of an investiga
tion, submit to the Commission a report of the find
ings of the investigation" (my emphasis) (subsection
44(1)), and that "[o]n receipt of [this] report the
Commission (a) may request the President of the
Human Rights Tribunal Panel to appoint a Human
Rights Tribunal in accordance with section 49" (my
emphasis) (subsection 44(3) [as am. idem, s. 64], sub
section 49(1) [as am. idem, s. 66]). On receipt of such
request, the President "shall appoint a Tribunal to
inquire into the complaint to which the request
relates" (my emphasis) (subsection 49(1.1) [as am.
idem]). All of this suggests a process where time is, if
not of the essence, at least of relevance.
The process of appointment presumably takes a
minimum of time, so that it must be presumed that
some five and a half years of the delay here must be
attributed to the processes of the Commission. The
record of the Commission over the years well estab
lishes its bona fides, and so to say that such an intol
erable processing time for a complaint will not do is
probably to call into question the resources made
available to it rather than its use of them. Neverthe
less, as Mahoney J.A. indicated for this Court in
Cashin v. Canadian Broadcasting Corporation,
[1984] 2 F.C. 209, at page 215, it is the Commis
sion's obligation to devise ways of achieving what
must be done, or, failing that, simply to request the
appointment of a tribunal.
In my view, one year would normally be a reason
able period of time for the Commission to investigate
and decide whether to proceed to a tribunal, but, so as
not to confine it within an unduly procrustean timeta
ble, let me rather say that, where there is no satisfac
tory explanation by the Commission, it should be
presumed by a tribunal that two years between com-
plaint and tribunal is an outside limit for the Com
mission's internal processes.
In the case at bar, where there is no such explana
tion, I would hold that the delay by the Commission
beyond a two-year processing period may not be
taken into account by the tribunals below in setting
lost wages, since beyond that time there could not be
any causal connection between the discriminatory
practice and the wages awarded.
The Review Tribunal worried that (in a passage
quoted at pages 432-433) "It does not seem equitable
or within the intent of the Human Rights Act that a
successful complainant should suffer because of the
length of time that it takes to proceed through the
mechanics established by the human rights legisla
tion." But the causal connection established by the
Act must be respected. What would be equitable
would be for the Commission to pay any lost wages
for the additional two years or more. Whether the
holding here may found a claim by the complainant
against the Commission is a matter for another day.
The application should therefore be allowed in this
respect, and the cross-application dismissed.
3. Mitigation of Damages
I find myself in complete agreement with the initial
statement of the law by a unanimous Review Tribu
nal on this point (at page D/60):
With respect, it seems to us, the Tribunal employed an
overly simplistic basis on which to approach the problem of
mitigation. The reasonableness or unreasonableness of the
steps taken by the respondent to mitigate can only be ascer
tained in the context of all the circumstances including, not
only his effort to find employment but also his military back
ground, his previous experience in the Armed Forces, the
opportunities for career advancement, his age and personal
qualifications. These are, in our opinion, factors to be consid
ered.
However, I believe the Review Tribunal immedi
ately thereafter fell into error under paragraph
28(1)(c) of the Federal Court Act by deciding as fol-
lows, without regard for the material before it (at
page D/61):
From that perspective [of the claimant's whole pattern of
conduct] two isolated instances shortly after his rejection by
the Armed Forces when the respondent voluntarily left jobs
become relatively insignificant. The respondent persisted and
continued in efforts to re-enlist or re-muster with the Armed
Forces until July 1983 when he filed his complaint under the
Canadian Human Rights Act.
The Review Tribunal is not mistaken in its immediate
reaction to these two instances of Morgan's aban
doning full-time employment, both for the reason
given and because, as I have already indicated, the
time before the making of his claim should not be
taken into account for remedial purposes.
Nevertheless, these two instances are not, as I see
them, isolated, but part of a pattern of conduct. In
addition to these voluntary quittings, in 1984, accord
ing to his income tax return for the year, Morgan
held apparently full-time jobs with the District of
Victoria and with the Government of Canada,
although in his testimony he claimed to be unable to
recall either working for those two employers or why
he left their employ. This pattern of job-leaving is
certainly one of the principal matters that must be
looked at in a perspective of a total course of con
duct.
The section 28 application should therefore be
allowed in this respect.
4. Interest, the Rate of Interest, and Interest on the
Award for Hurt Feelings
The case most directly on point, since it deals with
a question of interest under the same Act, is Canada
(Attorney General) v. Rosin, [1991] 1 F.C. 391
(C.A.). There, the Tribunal awarded the complainant
$1,500 for loss and hurt feelings under paragraph
53(3)(b), along with interest on this amount. Linden
J.A. said for the Court (at pages 413-414):
While there is no specific provision expressly granting human
rights tribunals the power to give interest, it is included in the
power granted to "order the person to pay such compensation
to the victim, not exceeding five thousand dollars, as the Tribu
nal may determine." (see subsection 53(3)). Such awards for
interest have been ordered frequently by human rights tribu
nals.
This decision settles the issue as to whether interest
can be awarded on the award for hurt feelings
(awarded by the Tribunal on $1,000, but not by the
Review Tribunal on $2,500). It can be awarded, up to
a total award (including interest) of $5,000, but
whether it is awarded is entirely in the discretion of a
tribunal. In my opinion, the Review Tribunal erred in
increasing the award for hurt feelings to $2,500
(without interest), without having sufficient reason to
revisit the Tribunal's discretion, and the cross-appli
cation must succeed on this ground.
Even though the notion of interest per se was not
challenged in oral argument by the applicant, it is
worth pointing out that that question is not decided
by Rosin, which is concerned only with subsection
53(3). In subsection 53(2), paragraph (b), of course,
as held by McAlpine, does not cover monetary
awards at all, but paragraph (c), which is concerned
specifically with wage compensation, must be taken,
I believe, to permit awards of interest on any amounts
awarded for lost wages, on the analogy of Canadian
Broadcasting Corp. v. C.U.P.E., [1987] 3 F.C. 515
(C.A): 3 the notion of adequately compensating the
victim must needs include a reasonable return on the
money of which the victim has lost the use by reason
of the discriminatory practice. As the Review Tribu
nal held (at pages D/56-D/57), compensation in para
graph 53(2)(c) should be broadly interpreted. Such
interest, being awarded under subsection 53(2), is not
limited by the $5,000 limit set out in subsection
53(3).
With respect to the rate of interest, the Tribunal
had this to say (at page D/6406):
In this case, counsel for the respondent submitted that if
interest is awarded, the rate of interest should be 5 percent
because that is the rate of interest provided by s. 3 of the
Canada Interest Act. Although both counsel for the respondent
and the Commission submitted that they were prepared to
3 See also Chandris v. Isbrandtsen-Moller Co. Inc., [1951] 1
K.B. 240 (C.A.); Minister of Highways for British Columbia v.
Richland Estates Ltd. (1973), 4 L.C.R. 85 (B.C.C.A.); Re
Westcoast Transmission Co. Ltd. and Majestic Wiley Contrac
tors Ltd. (1982), 139 D.L.R. (3d) 97 (B.C.C.A.).
accept an interest rate of 5 percent, I do not think that the rate
should be restricted to 5 percent.
In Canadian Broadcasting Corp. v. Broadcast Council of
Canadian Union of Public Employees, supra [[1987] 3 F.C.
515 (C.A.)), the Canada Labour Relations Board had awarded
interest at " ... the Bank of Canada prime rate ..... The Fed
eral Court of Appeal upheld the decision of the Board. In so
doing, I think it may be assumed that the Federal Court
approved of a rate of interest that was higher than the rate pro
vided by s. 3 of the Canada Interest Act. Presumably, the
higher rate may be justified on the basis that the award is
"compensation" rather than interest and therefore the Canada
Interest Act does not apply.
While there is some attraction to using the Bank of Canada
prime rate, it would be a chore to determine the applicable
prime rates since 1980. For reasons that will become apparent
later, I prefer to use the prime rate charged by the Canadian
Imperial Bank of Commerce with respect to its most
creditworthy customers. This is consistent with the holding in
Boucher v. Canada (Correctional Service), supra [(1988), 9
C.H.R.R. D/4910 (C.H.R. Trib.)].
It need hardly be said that the fact that "it would be a
chore" to determine the Bank of Canada prime rates
since 1980 does not constitute a valid reason to select
a different rate.
The Review Tribunal substituted a different rate,
saying simply that (at page D/57) "With regard to the
rate of interest it should be in accordance with the
applicable rate of interest from time to time of
Canada Savings Bonds on the amount outstanding
from time to time during the period of compensa
tion." This apparent fiat, on the part of the Review
Tribunal, is clearly wrong in reversing the Tribunal
without stated justification. However, it is less easy
to establish what rate should be allowed.
One thought advanced was that the best rate would
be the Bank of Canada prime rate, as a compromise
between the lower Canada Savings Bonds rate and
the higher commercial bank prime rate. I accept that
point of view, and indeed that seems to have been the
preferred rate of the initial Tribunal except for the
"chore" involved.
It is not, in my opinion, possible to say that only
the Bank of Canada prime rate is permitted under the
legislation, since the Act does not even expressly per-
mit interest. The rate to be set must remain within the
discretion of a tribunal, but the Bank of Canada
prime rate should be taken as the usual rate to be
established, except when the tribunal finds special
circumstances in play.
On the choice of simple or compound interest by
courts, Professor S. M. Waddams, The Law of Dam
ages, 1983, at page 512, has this to say:
Compound interest has not generally been awarded at com
mon law and is specifically excluded by the British Columbia
and Ontario legislation following the English statute in this
respect. It is understandable, in view of the slow recognition of
simple interest, that compound interest has not been awarded
in the past. However, there seems in principle no reason why
compound interest should not be awarded. Had prompt recom
pense been made at the date of the wrong the plaintiff would
have had a capital sum to invest; he would have received inter
est on it at regular intervals and would have invested those
sums also. By the same token the defendant will have had the
benefit of compound interest.
I agree in that, in my view, this choice must remain
within the discretion of a tribunal, but simple interest
should be taken to be the norm except in special cir
cumstances identified and justified by the tribunal. To
the extent that there was interest at common law,
simple interest was the standard, and here there is the
additional factor that the Court Order Interest Act in
British Columbia (R.S.B.C. 1979, c. 76, s. 2), the
province where this case arose, provides for simple
interest.
In sum, on the interest issues, both the application
and the cross-application should be allowed in part.
5. Conclusion
In the result, both the application and the cross-
application should be allowed in part, the decision of
the Review Tribunal set aside in part, and the matter
remitted to that Tribunal for reconsideration in accor
dance with these reasons.
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