IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

The District of Campbell River v. Bellefleur,

 

2003 BCSC 1109

Date: 20030714


Docket: LO22737

Registry: Vancouver

Between:

THE DISTRICT OF CAMPBELL RIVER

PETITIONER

And

KELLY BELLEFLEUR

RESPONDENT

 


 

Before: The Honourable Madam Justice Dillon

Reasons for Judgment

Counsel for the Petitioner:

Thomas A. Roper, Q.C.

Counsel for the Respondent:

 

Michael Frey

 

Counsel for the British Columbia Human Rights Tribunal:

 

Patrick Dickie

 

Date and Place of Hearing:

December 19 & 20, 2002

 

Vancouver, B.C.

 


Introduction

[1]         The petitioner has sought judicial review to set aside the decision of the British Columbia Human Rights Tribunal (“Tribunal”) dated August 22, 2002 (the “remedy decision”) made pursuant to section 13 of the Human Rights Code, R.S.B.C. 1996, c. 210 (the “Code”).

Background

 

[2]         In 1994, the District of Campbell River Fire Department (the “fire department”) invited applications for two vacant firefighter positions and for the establishment of an eligibility list. The respondent was a volunteer firefighter from 1990-1996. His father had been a firefighter with the fire department since 1980. The respondent was not hired in 1994 but was placed on an eligibility list. Despite this, he was again unsuccessful in 1995. The respondent alleged that he had been discriminated against on the basis of family status in both the 1994 and the 1995 hiring decisions. He alleged that the fire department had a policy against hiring the sons of firefighters and that the fire chief interfered in the hiring process because of his intense dislike of the respondent’s father.

[3]         Following a hearing in 1999 and 2000, the Tribunal decided on April 18, 2002,(a reserve time of over two years), that there had been discrimination in the 1994 hiring on the basis of family status contrary to section 13 of the Code (the “1994 discrimination decision”). The respondent had withdrawn his allegation of discrimination with respect to the 1995 competition.

[4]         In arriving at the finding of discrimination in the 1994 discrimination decision, the details of the 1994 competition were fully analyzed by the Tribunal. The notice of vacancies in the firefighter position listed minimum standards for the job and stated that an eligibility list would be established by the competition. Following receipt of applications and after setting aside those that did not meet standards, there were seven applicants, including the respondent. The respondent did well in the interviews. It was understood that there were two positions open and that future hiring was to come from the eligibility list that would be developed during the competition. Eventually, the respondent’s name was put last on a short list of five candidates who would compete in physical testing. Although the respondent passed the physical testing, two others were offered the jobs. Two other candidates had been eliminated because they could not pass the physical. This meant that only the respondent remained on the eligibility list.

[5]         The fire chief then eliminated the eligibility list. The Tribunal found that this was done because of the animosity felt towards the respondent’s father, a discriminatory practice on the basis of family status. However, the Tribunal also found that the respondent would have placed no higher than fifth on the list and that with the elimination of two of the candidates and the hiring of two others, his was the only name on the list. In other words, the respondent would not have been hired in any event of the discrimination. He would have been placed on an eligibility list. The Tribunal concluded at para. 200:

I conclude, therefore, that the Respondent discriminated against the Complainant regarding employment on the basis of his family status contrary to s. 13 of the Code when the Respondent eliminated the eligibility list in 1994.  Being the only name on the eligibility list would have entitled the Complainant to the next available firefighter position at the CRFD providing, of course, that there was no specific qualification which he did not possess.  (my emphasis)

 

 

[6]         This decision is not under review. It was expected that the parties could agree on a remedy.

[7]         In May 2002, the respondent applied for a hearing on the remedial issues because the fire department had posted a notice for a firefighter position. The respondent took the position that he was entitled to the job as part of his remedy. The petitioner disagreed. The remedial hearing was held in June 2002 and the Tribunal released its decision on August 22, 2002 (the “remedy decision”). This is the decision that is under review.

The remedy decision under review

 

[8]         To fully appreciate the nature of the Tribunal’s remedy decision, it is necessary to assess the reasons for judgment in detail.

[9]         The respondent sought the remedial order that the petitioner make available to the respondent the right or opportunity that he had been denied, and, in particular, an order that the respondent be given the firefighter position posted in 2002. The respondent said that because his was the only name on the eligibility list, he would have been given the next job in 1995 without the necessity to satisfy qualifications or undergo physical testing.

[10]    The petitioner said that an incident that took place in 1995, involving threatening and aggressive behaviour on the part of the respondent towards the female employee who was conducting the physical testing was unexpected, unreasonable conduct within the labour relations context.  This conduct disqualified the respondent from the competition and effectively removed the respondent from the eligibility list. The petitioner maintained that the respondent would have had to undergo physical testing in 1995 regardless of his position on the eligibility list. The fire department had changed the order of physical testing in 1995 because so many of the applicants had failed the testing in 1994. The testing for 1995 was to take place before the interviews and was to involve an additional step test. The petitioner also said that the eligibility list was not a guarantee of a job without further qualification. The petitioner made it clear that it intended to review the 1995 job competition at the remedial hearing despite the fact that the respondent had withdrawn his allegation of discrimination with respect to the 1995 hiring process.  The petitioner relied upon the 1995 incident to demonstrate that there were other reasons why the respondent did not get the job in 1995 and so render him ineligible for any firefighter job.

[11]    The respondent interpreted the petitioner’s position to be that, “in the absence of discrimination” (my emphasis), the respondent would have had to undergo physical testing again in 1995. In reply, the respondent stated:

As a result, if the Complainant was the only person on the eligibility list in May, 1995, the act of requiring him to submit to further physical testing would have been a further act of discrimination by the Respondent.  The duty to mitigate does not compel the Complainant to submit to testing that was never contemplated by the Respondent and that the Respondent, acting without discrimination, would never have requested.

 

 

[12]    From this, I conclude that it was the respondent who put in issue whether there was continuing discrimination in 1995, particularly with regard to the decision to have the respondent physically tested, notwithstanding that the respondent had withdrawn that complaint. The respondent said that the job was virtually guaranteed to him as a result of his position as the only one on the eligibility list and that there was no evidence to support the assertion that further physical testing would be required eleven months after his placement on the eligibility list. In other words, the requirement for physical testing could only be a continuation of the discrimination.

[13]    The Tribunal prefaced its consideration of the evidence with a reiteration of its findings on credibility against the petitioner’s witnesses, particularly the fire chief, and said that subjective assessments of personal attributes in consideration of employment are subject to scrutiny for discrimination. The Tribunal rejected the petitioner’s analogy of prevalent considerations to that of employer and employee in the labour relations context because of the right of all employees to be free of discrimination. Thus, before considering the evidence, the Tribunal placed the 1995 events within a context of consideration of discrimination and not normal labour relations.

[14]    The Tribunal also reiterated evidence that established that the relationship between the respondent’s father and the fire chief was unfriendly in 1995. This relationship had relevance only to the discrimination issue and the conclusion related only to the nature of the relationship in 1995. The Tribunal then explained why it disagreed with the petitioner’s submission that the respondent would have had to undergo physical testing in any event in 1995, pointing to para. 199 in the original reasons for support for this conclusion. Para. 199 says:

In my view, it is clear that the reason Orser eliminated the eligibility list was that, had he not done so, the Complainant would have been the next individual hired as a firefighter by the CRFD.  Again, in my view, the reason for Orser’s actions is clear: his animosity towards the Complainant’s father.  I am more than satisfied on a balance of probabilities that the Complainant’s family status was a factor, if not the sole reason, for Orser’s decision.

 

 

[15]    This paragraph refers to the reasons why the eligibility list was eliminated. The Tribunal did not refer to para. 200, which described the nature of the entitlement associated with being on the eligibility list. There, it is clear that the respondent still had to have all specific qualifications.

[16]    Nonetheless, the Tribunal continued to give reasons why the eligibility list meant a guarantee of obtaining the next available position without any further qualification. It said that the eligibility list was to be used in the next year to fill positions so that a time consuming and expensive competition could be avoided. The petitioner had hired in previous years without physical testing and relied on the 1995 tests for its 1996 hiring. The respondent had performed well on the physical tests in 1994. Thus, after eliminating any other reason for the 1995 testing, the Tribunal concluded at para. 35:

...I find that the Respondent, acting in a non-discriminatory manner, would not have again expended time and money to physically test him less than one year later in 1995.

 

 

In other words, if there was no discrimination in 1995, there would have been no further testing.

 

[17]    The Tribunal then considered the petitioner’s position that because so many had failed the physical test in 1994, it had decided to have the physical testing prior to interviews in 1995. While the Tribunal appears to have accepted that this may have been a legitimate reason for wanting to have the testing in 1995, it said that this could not have meant that the petitioner had any legitimate concern about the respondent. The Tribunal continued in para. 36:

...had the Complainant not been discriminated against, he would have been hired from the eligibility list in 1995 without further testing and, more particularly, without any reason to interact with Nagle.

 

And then concluded at para. 37:

 

On this basis I am prepared to grant the two orders applied for by the Complainant.  However, I will now turn to the other submissions of counsel for the Complainant.  (my emphasis)

 

 

[18]    The petitioner and respondent disagree on the meaning of these findings. The petitioner says that this is a finding of discrimination in 1995. The respondent says that this refers only to the discrimination already found in 1994. To fully understand these conclusions, it is important to refer back to the preface in which the Tribunal indicated that it was prepared to consider subjective intention, to the finding that labour relations cases were not helpful to place these considerations in context, and to the conclusion that animosity continued between the father and the fire chief in 1995. All of this and the words themselves suggest that this was a finding of continuing discrimination in 1995.

[19]    This conclusion is further supported in the Tribunal’s reasons. The respondent had argued that because he had just successfully completed physical testing for the New Westminster Fire Department in June 1995, he should not have had to undergo further testing by Campbell River Fire Department. The Tribunal said at para. 39-40:

...I am more than satisfied on a balance of probabilities that, if the Respondent had had a reasonable, non-discriminating concern about the Complainant’s physical capabilities, its concerns would have been satisfied by the results of the Complainant’s performance in New Westminster, and the Respondent would not have required any further physical testing of the Complainant.

 

     In light of all this evidence, and in the complete absence of any evidence to support the position of counsel for the Respondent, I find that there is no reasonable basis for his submission that the Complainant would have been required to undergo physical testing in 1995.  In these circumstances, the only explanation that I could ascribe to the Respondent, had it required the Complainant to again be physically tested in 1995, would be that the Respondent was continuing to discriminate against the Complainant.  (my emphasis)

 

 

[20]    In short, the Tribunal held that if there had been a concern about testing in 1995, it should have been met by the results of the New Westminster testing. Since apparently it was not, then the only explanation for required testing in 1995 was continuing discrimination. This is clearly a finding of discrimination in 1995.

[21]    The Tribunal also concluded that it was not necessary to have implemented the step test to augment the running part of the physical testing in 1995 and, in any event, the respondent would have met the requirements. However, these conclusions were not explained in detail because of the finding that the only reason for testing in 1995 was because of continuing discrimination.

[22]    The Tribunal then considered the incident that the petitioner says disqualified the respondent from the competition in 1995 for reasons related to labour relations (the “Nagle incident”). The Tribunal agreed with the position of the respondent that if there had been no discrimination in 1994, there would have been no physical testing in 1995 because the respondent would have been first on the eligibility list. I note, however, that the Tribunal did not add its own proviso from the 1994 discrimination decision that the respondent would have still had to meet specific qualifications. I also note that the Tribunal concluded at para. 41 that the respondent would have passed the physical testing on the basis of the New Westminster testing in June 1995 and the testing in 1994. This was based on the running part of the test and not on the new requirement for a step test. Further, the use of the new step test was concluded to have been unnecessary for just one person.

[23]    There is confusion in the Tribunal’s reasoning with respect to the interaction with Nagle. The Tribunal said at para. 42 that if there had not been discrimination in 1994, there would not have been the interaction with Nagle in 1995 because the respondent would not have had to undergo the 1995 physical testing, particularly the step test. This appears to conflict with the finding of continuing discrimination in 1995 in paras. 39 and 40, as well as with the evidence that the step test was considered by Nagle to be a better test of cardiovascular fitness and so legitimately incorporated into the 1995 test, and finally, with the conclusion about this incident in para. 68.

[24]    All of the applicants had to do the step test. The facts as found by the Tribunal were that the respondent failed the step test in 1995, was upset about this, and went to Nagle to find out why the step test was used in the first place. Nagle told him that it was her opinion, as administrator of fitness testing for the fire department, that the step test was the better test of cardiovascular fitness. There then ensued the “incident” with Nagle.  She later described the respondent as agitated and upset in a reporting letter, but described him as intimidating and threatening in evidence before the Tribunal. The Tribunal rejected Nagle’s evidence, preferring the tone of the reporting letter. The Tribunal concluded that this incident did not justify the fire chief's conclusion that the respondent could not work as part of a team, which disqualified him from the competition. The Tribunal also concluded that if the Nagle incident had been the real reason behind the fire chief’s decision, then he would not have allowed the respondent to continue with the testing and he would have informed the respondent of the real reason earlier. In short, the Nagle incident was found not to be serious enough to have justified the petitioner’s decision to disqualify the respondent from the competition. The real reason as found by the Tribunal was stated in para. 68 as follows:

I conclude that, had Owens not continued to act in a discriminatory manner toward the Complainant in 1995, as he had done in 1994, he would not have disqualified the Complainant from the competition because of his interaction with Nagle.

 

 

[25]    This is a conclusion of discrimination in 1995. The statement in para. 69 that the petitioner would not have required further testing in 1995 if it had been acting in a non-discriminatory manner reinforces this interpretation. The requirement to physically test in 1995 was, therefore, discrimination.

[26]    The Tribunal concluded in para. 74:

Therefore, had the Complainant not been discriminated against in 1994 and 1995, he would have been hired in 1995, and he would not have subsequently been tested.  In these circumstances, I find that the Complainant is entitled to be placed in the position posted by the Respondent on April 30, 2002 without any further evaluation or testing.

 

 

[27]    The Tribunal concluded that there had been discrimination in 1995 notwithstanding that the complaint of discrimination in 1995 had been withdrawn at the 1999-2000 hearing (see para. 201 of the 1994 discrimination decision).

Issues

 

[28]    The Petitioner submitted that the Tribunal erred and exceeded its jurisdiction when it found that the petitioner discriminated against the respondent in 1995 and ordered a remedy based on that determination. The respondent said that there is no factual foundation for the petitioner to claim excess jurisdiction, that the 1995 events were independently relevant despite withdrawal of the 1995 complaint, and that the obiter reasons are not jurisdictional error.

[29]    The petitioner also submitted that the Tribunal exceeded its jurisdiction by ordering a remedy that went beyond the purposes of the Human Rights Code when it ordered that the respondent be given the job of firefighter in 2002. This went beyond making the respondent whole after the 1994 discrimination. The respondent said that the remedy was rationally connected to the breach, namely the 1994 discrimination.

[30]    Finally, the petitioner said that the Tribunal committed jurisdictional error by taking irrelevant considerations into account and failing to consider relevant considerations.

Standard of review

 

[31]    A reviewing judge must begin by determining the standard of review based on the pragmatic and functional approach described by the Supreme Court of Canada in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and reviewed in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19. The pragmatic and functional approach, a principled conceptual model used consistently in judicial review, calls upon this court to consider a series of factors in an effort to discern whether a particular issue before the administrative body should receive exacting review by a court, undergo a significant searching or testing, or be left to the near exclusive determination of the administrative decision-maker (Dr. Q., supra, at para. 22). The degree of deference corresponds to the standards of correctness, reasonableness simpliciter, and patent unreasonableness.

[32]    Four contextual factors were reviewed in detail and updated by McLaughlin, C.J. in Dr .Q., supra, at paras. 26-35: the presence of absence of a privative clause or statutory right of appeal, the expertise of the Tribunal relative to that of the reviewing court on the issue in question, the purpose of the legislation and the provision in question, and the nature of the question as to law, mixed fact and law, or fact. The overall goal is to ascertain legislative intent (Pushpanathan, supra, at para. 26). The factors overlap when the pragmatic functional approach is applied within consideration of all of the information relevant to a particular case.

[33]    Each of these factors will be considered within the context of this case. In this sense, it is helpful to consider other cases that have dealt with the standard of review for other human rights Tribunals, particularly Ross v. New Brunswick School District No.15 [1996] 1 S.C.R. 825, Oak Bay Marina v. British Columbia (Human Rights Commission) [2002] B.C.J. No. 2029, 2002 B.C.C.A. 495; and Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.

 

[34]    The first factor is the statutory mechanism of review. The Code contains neither a privative clause nor a clause permitting appeals. This factor is neutral.

[35]    The Tribunal’s exercise of expertise here relates not to the question of discrimination itself, but to the use of remedial powers. Section 37 of the Code provides:

37(2)  If the member or panel determines that the complaint is justified, the member or panel

 

(a)  must order the person that contravened this Code to cease the contravention and to refrain from committing the same or a similar contravention,

 

(b)  may make a declaratory order that the conduct complained of, or similar conduct, is discrimination contrary to this Code,

 

(c)  may order the person that contravened this Code to do one or both of the following:

 

i)   take steps, specified in the order, to ameliorate the effects of the discriminatory practice;

 

ii)  adopt and implement an employment equity program or other special program to ameliorate the conditions of disadvantaged individuals or groups if the evidence at the hearing indicates the person has engaged in a pattern or practice that contravenes this Code, and

 

(d)  if the person discriminated against is a party to the complaint, or is an identifiable member of a group or class on behalf of which a complaint is filed, may order the person that contravened this Code to do one or more of the following:

 

i)   make available to the person discriminated against the right, opportunity or privilege that, in the opinion of the member or panel, the person was denied contrary to this Code;

 

ii)  compensate the person discriminated against for all, or a part the member or panel determinates, of any wages or salary lost, or expenses incurred, by the contravention;

 

iii) pay to the person discriminated against an amount that the member or panel considers appropriate to compensate that person for injury to dignity, feelings and self respect or to any of them.

 

 

[36]    The exercise of remedial power must relate to the subject matter of the complaint, in this case, discrimination on the basis of family status in 1994. The Tribunal is to be afforded a high degree of deference when the inquiry relates to fact finding within this issue; however, the same degree of deference does not apply to questions of law such as jurisdiction. In Berg v. University of British Columbia, (1993), 79 B.C.L.R. (2d) 273 at 283 (S.C.C.), Lamer, C.J.C. agreed with La Forest, J. in Mossop that the superior expertise of a human rights Tribunal relates to fact-finding and adjudication within the human rights context and does not extend to general questions of law. Generally, the Supreme Court of Canada has afforded a low degree of deference to the expertise of human rights Tribunals except in fact-finding within the human rights context (Ross, supra, at para. 24). For questions of law, the standard of correctness applies. In this case, there is considerable overlap between the two factors of the expertise of the Tribunal and the nature of the question before it. Whether the reviewing court has greater expertise than the Tribunal in this case depends to a greater extent on the question under review, given that the question is not one of a finding of discrimination per se and that no particular technical expertise is involved in fashioning a remedy under section 37(2)(d).

[37]    The remedial question as accepted was whether the respondent was entitled under section 37(2)(d)(i) of the Code to the position as firefighter when it first came up in 1995 without further testing of any kind. The purpose of this remedial legislation is to provide a means of redress for discrimination already found (section 3(e)). Section 37(2) gives the Tribunal authority to impose one or more remedies. Therefore, part of the expected decision is whether one or more remedies should be imposed and whether one is sufficient in the face of other alternatives. A statutory purpose that requires a Tribunal to balance amongst remedial choices indicates a higher degree of deference (Dr. Q., supra, at para. 31; Law Society of New Brunswick v. Ryan, 2003 S.C.C. 20 at para. 39). It is noted, however, that the Tribunal did not consider a choice among a range of remedies that were available. At para. 6 of the remedy decision, the Tribunal clearly restricted its considerations to the availability of one remedy. The Tribunal did not, therefore, embark upon a balancing of this choice of remedy as opposed to any others that were potentially available under section 37. Also, the purpose of the remedial section is to decide a civil remedy between parties rather than protect the public or engage in a discussion of broader policy issues. This purpose suggests less deference.

[38]    Section 37(2)(d)(i) gives the Tribunal authority to make available the opportunity that, “…in the opinion of the member…”, the person was denied. These words indicate an intention to give the Tribunal discretion to fashion a remedy based on an opportunity denied because of the discrimination found in 1994. While these words at first glance may suggest a broad discretion, it is tied to the opportunity that was denied, usually an obvious matter. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 53, L’Heureux-Dube, J. said that discretionary decisions must still be made within the bounds of jurisdiction conferred by the statute but that considerable deference would be given to the exercise of discretion and to the determination of the scope of jurisdiction within that exercise.

[39]    This court must ask itself whether fashioning a remedy in this case involved a matter of jurisdiction or the exercise of powers within the Tribunal’s statutory authority. The process was described by Cory, J. in Royal Oak Mines v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369 at paras. 59 and 60:

The Canada Labour Relations Board has been granted the power to impose remedies by s. 99(2) of the Code.  Thus, the question as to whether the Board may or may not impose remedies on the parties is jurisdictional in nature.  If the Board concluded that it could not impose a remedy to counteract a breach by one of the parties, the aggrieved party would have the right to argue before a reviewing court that the Board had incorrectly interpreted its enabling statute.  The court, in addressing this jurisdictional question, would then be entitled to review the Board’s decision, on a correctness standard, to determine whether in fact the Board did have the power it claimed to lack.  However, once it has been established by the provisions of the empowering legislation that the Board does, in fact, have the jurisdiction to order certain remedies, the question of which of these remedies the Board chooses to impose in any given situation is a question within the Board’s jurisdiction.  Since the Board’s order falls within its jurisdiction, it should be assessed on a patently unreasonable basis.

 

     To require “correctness” would require the substitution of the courts view of what remedy was required for that of the Board.  It would mean that the Boards experience and expertise were set at nil by the courts.  The scheme of the Canada Labour Code including the privative clause would be rendered meaningless.  It must be remembered that applying a standard of patent unreasonableness does not give a board free rein to impose any remedy it wishes.  For example, if a court determined that the remedy imposed by the Board bore no relation to the breach found, or was purely punitive in nature, or was adverse to the policy objectives of the Canada Labour Code the order could be properly found to be patently unreasonable.  However, none of those issues arise in the remedial order to be considered in this case.

 

 

[40]    As illustrated by the dissent of Major, J. at para. 176, Cory’s decision on this point suggests that the only jurisdictional question that the board faces is whether it may or may not impose a remedy. This means that the question of a specific remedy is not jurisdictional. While Royal Oak Mines was a labour case characterized generally by a high degree of deference to labour relations boards, a consideration of jurisdiction and then exercise of power within that jurisdiction in order to establish the appropriate standard of review is pertinent here when the petitioner has argued that the Tribunal exceeded its jurisdiction in fashioning a remedy based upon a finding of discrimination in 1995.

[41]    In my view, the question posed by the Tribunal in this case went to jurisdiction.  The purpose of the remedial sections of the Code is to provide a means of redress for persons discriminated against. The remedy is to be chosen within a range of options designed to achieve that purpose. The remedy must, therefore, relate to the discrimination as found. In this case, the remedy must pertain to the discrimination as found in the 1994 discrimination decision, that is, discrimination that occurred in 1994. The remedial jurisdiction in the legislation established that the remedy must relate to the discrimination as found. If the remedy is for another discrimination, then the question arises as to whether the Tribunal correctly interpreted its enabling statute. This court can review the Tribunal’s decision to determine whether the Tribunal did base its remedy upon a finding of discrimination in 1995 and, if so, whether it had jurisdiction to do so. This is a matter that must be reviewed on the standard of correctness.

[42]    If the Tribunal was acting within its jurisdiction, then its choice of remedy is to be accorded more deference. Once within its legislative realm, the fact-finding nature of remedial powers prevails such that the standard of review is reasonableness upon consideration of all of the four factors.

Did the Tribunal commit jurisdictional error?

 

[43]    The first question to answer within this issue is whether the Tribunal based its remedial order upon a finding of discrimination in 1995. In my view, it did. This is apparent from the beginning when the Tribunal accepted the question as posed by the respondent. There was to be an adjudication of one possible remedy chosen by the respondent and the issue described by the respondent as whether the requirement for further testing in 1995 was because of continuing discrimination in 1995. Although the petitioner had brought up the 1995 testing and its aftermath as a legitimate labour relations based reason for denying the respondent the 1995 position as firefighter, it was the respondent who characterized the requirement for further testing as a continuation of discrimination in 1995. The Tribunal rejected the petitioner’s characterization of the 1995 issue and delved into the alleged 1995 discrimination.

[44]    Although the Tribunal sometimes mentioned the 1994 and 1995 discrimination together in its reasons, it is apparent from a reading of the whole of the reasons that the Tribunal made a finding of continuing discrimination based upon the conduct of the petitioner in 1995. These findings are so interspersed and integral to the remedy decision that they cannot be severed and still give meaning to the decision. The Tribunal based its findings concerning the 1995 events on a finding of discrimination. It considered the petitioner’s argument that the reason for the respondent’s failure to succeed in 1995 was labour relations based to be irrelevant.  As a result, any argument of independent relevance for conduct in 1995 is lost because the Tribunal expressly rejected any other explanation than discrimination as the basis for the 1995 conduct. It made findings of credibility and fact relative to the alleged discriminatory conduct in 1995. 

[45]    In making a determination of discrimination in 1995 as the basis for the remedy decision of placing the respondent in the position as firefighter in 2002, the Tribunal exceeded its jurisdiction. The respondent had withdrawn the complaint of discrimination in 1995 during the 1994 discrimination decision hearing. With the withdrawal of the 1995 complaint, the Tribunal lost jurisdiction over it because it has no jurisdiction to adjudicate on any matter other than a complaint referred to it (Canadian Union of Public Employees, Local 394 v. Crozier, 2001 B.C.C.A. 77, [2001] B.C.J. No. 195 at para. 63; British Columbia (Human Rights Commission) v. British Columbia (Human Rights Tribunal), 2001 B.C.S.C. 721, [2001] B.C.J. No. 998 at para. 43). This flows from the principle that an administrative tribunal’s power is limited to that conferred by its statute (Douglas/Kwantlen Faculty Association v. Douglas College [1990] 3 S.C.R. 570 at 594-595). It was clearly stated by Pitfield, J. in British Columbia (Human Rights Commission) v. British Columbia (Human Rights Tribunal), supra, at para. 47 that once the complaint that was referred to the Tribunal has been withdrawn, there is nothing in respect of which the Tribunal has jurisdiction. It follows that it was not open to the Tribunal to impose a remedy for discrimination found in 1994 based upon discrimination found in 1995 when the 1995 complaint had been withdrawn. The Tribunal committed jurisdictional error in doing so. The remedy decision to allow the respondent the position in 2002 was based upon the finding that he should have been hired in 1995 had there not been discrimination in 1995.  This was beyond the jurisdiction of the Tribunal.

[46]    While this may end this matter, the petitioner also argued that the Tribunal exceeded its jurisdiction by placing the respondent in a position as firefighter rather than placing him first on an eligibility list as had been the effect of the 1994 discrimination decision. The remedial power in section 37(2)(d)(i) is to “make available to the person discriminated against the right, opportunity or privilege that, in the opinion of the member... the person was denied contrary to this Code”. The purpose of the Code is to make the complainant whole in the sense of putting him in the position that he would have been but for the discrimination. In counteracting the consequence of the discrimination, the Tribunal must rationally connect the breach with its consequences (Royal Oak Mines, supra, at para. 56).

[47]    The 1994 discriminatory conduct was the elimination of the eligibility list when the respondent was the only person on it. To make up for the discrimination in its entirety required, at the most, that the respondent be placed first on an eligibility list, not that he be given more by directly placing him in a firefighter position. There were others who applied for the 1995 position. Some of them may also have made the eligibility list. The 1994 discrimination decision foresaw in para. 200 that the respondent would still have to satisfy specific qualifications. With others competing, it may be that the respondent could not hold his position as the first qualifier for the next available position. The petitioner was entitled to argue these points but was hindered by the Tribunal’s focus on the 1995 finding of discrimination. I leave for another day the question of whether the Tribunal had jurisdiction to enquire into the non-discriminatory merits of the 1995 hiring decision. It chose not to do so. In the remedy provided, the Tribunal exceeded its jurisdiction to make the respondent whole by giving him more than the 1994 discrimination decision indicated that he was entitled to.  As such, the remedy provided was not rationally connected to the breach and was outside the jurisdiction of the Tribunal.

[48]    It is not necessary to consider the third issue.

Conclusion

 

[49]    The Petition is allowed. The remedy decision of the Tribunal of August 22, 2002 is set aside. From these reasons, it should be apparent to the Tribunal that it is not open to it to find that the petitioner discriminated against the respondent in 1995. The petitioner is entitled to costs on the scale of three as against the respondent, Bellefleur, only.

“J.R. Dillon, J.”
The Honourable Madam Justice J.R. Dillon