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Human Rights (Ont) - Remedies. Zoghibi v. Air Canada
In Zoghibi v. Air Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal of a JR challenging a CHRC decision, here stemming from a discrimination complaint by an airline passenger that sought 'financial relief'.
Here the court considered whether the CHRC remedial provisions were overridden by those of an international treaty (the Montreal Convention) - which expressly provides that "punitive, exemplary or any other non-compensatory damages shall not be recoverable" [Art. 29] and it's implementing federal statute (the Carriage by Air Act) (it strikes me that but for the SCC precedent, this case should have been dealt with under 'paramountcy' doctrine):[14] Soon after the appellant filed his complaint, the Commission informed him that it was going to screen his complaint under ss. 40 and 41 of the Canadian Human Rights Act. Due to the Carriage by Air Act, the Commission was concerned that it would not have jurisdiction to give him financial compensation. After receiving submissions on point, the Commission found that the Tribunal had no jurisdiction to award damages. It screened out the entire complaint.
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[20] However, as mentioned above, the Federal Court found (at paras. 46 and 52) that the appellant might be entitled to other human rights remedies not barred by the Montreal Convention and the Carriage by Air Act. For example, Air Canada might be subject to an order to take "“measures to redress the alleged discriminatory practice or prevent similar practices from occurring in future”" (at para. 52), for example by training its staff to handle circumstances such as this in a more rights-friendly way. It returned the matter to the Commission to decide these issues.
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(3) As a matter of interpretation, did the Montreal Convention and the Carriage by Air Act bar the appellant’s human rights claim?
[51] The Commission answered this in the affirmative. In doing so, it acted reasonably.
[52] In its reasons, the Commission adopted paragraphs 60-68 of the investigation report. The report began (at para. 60) by reviewing the Montreal Convention and the Carriage by Air Act. It noted, as mentioned above, that article 17 of the Montreal Convention allows only for monetary compensation in cases of "“death or bodily injury of a passenger”" where "“the accident ... took place on board the aircraft or in the course of any of the operations of embarking or disembarking”".
[53] However, the report did not leap to the conclusion that the appellant’s claim was excluded. It asked itself whether there was any room under the Montreal Convention for claims based on "“fundamental, quasi-constitutional rights”" (at para. 62).
[54] Here, it found (at para. 62) that the Supreme Court had already decided that issue: Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340. The Supreme Court found that damages for breaches on aircraft of language rights — fundamental, quasi-constitutional rights — could not be claimed because of the Warsaw Convention, the predecessor to the Montreal Convention.
[55] The report went further (at paras. 64-65) and examined the Supreme Court’s reasoning in support of that conclusion. The Supreme Court had examined a case where a couple alleged that they were bumped from a flight because of their race: King v. American Airlines, Inc., 284 F.3d 352 (2d Cir. 2002). In that case, like here, the couple enjoyed statutory human rights protections against racial discrimination. Sotomayor J. (as she then was) concluded that the claim was caught by the Warsaw Convention which, like the Montreal Convention, exhaustively covers claims for injuries suffered while "“in the course of [one of] the operations of embarking”": Thibodeau at para. 68. The Supreme Court agreed with the analysis in King: Thibodeau at paras. 67-73.
[56] On the authority of Thibodeau, King (adopted by the Supreme Court) and the specific wording of the Montreal Convention and the Carriage by Air Act, the report concluded that the appellant’s human rights damages claim was barred.
[57] The Commission’s decision to adopt this part of the report and its reasoning is reasonable. The outcome is fully consistent with an authoritative decision of the Supreme Court and the meaning of the Montreal Convention and the Carriage by Air Act. As well, there is a clear, sufficiently articulated chain of reasoning leading from the facts of the case to the outcome. . Ontario (Minister of Children, Community and Social Services) v. Robinson-Cooke [HRC Overrides Statute and Regulatory Law]
In Ontario (Minister of Children, Community and Social Services) v. Robinson-Cooke (Div Court, 2024) the Divisional Court dismissed a Crown JR respecting a claimant-successful (and unusual) ODSP 'guide dog benefit' (GDB) HRTO 'disability' decision.
Here the court considers (and dismisses) the remedial argument that the HRC cannot override statutory or regulatory law:Issue 5 – Was the Tribunal’s remedy reasonable?
[105] Ontario argues that the Tribunal’s remedy unreasonably departed from the principles that govern public interest orders. Ontario submits that despite the Tribunal’s reliance on Ball v. Ontario (Community and Social Services), 2010 HRTO 360 to essentially direct the development of a new public policy, that case actually stands for the proposition that the HRTO ought to avoid making such orders since it is unnecessary and inconsistent with the role of the HRTO in relation to the Legislature and the Executive, and because the Tribunal failed to adequately justify the Decision’s departure from this previous case.[18]
The Tribunal’s remedy was reasonable
[106] The Code provides the HRTO with a broad remedial discretion to order remedies that are fair, effective, and responsive to the circumstances of the case.[19] Pursuant to ss. 45.2(1)3 and 47 of the Code, the HRTO may direct the respondent (Ontario in this case) not to follow the offending legislation or scheme, not only with respect to the applicant in a given case (Ms. Robinson-Cooke in this case), but also with respect to those similarly situated to the applicant.[20]
[107] The Supreme Court has directed human rights tribunals to ensure that their remedies are effective, creative when necessary, and respond to the fundamental nature of the rights in question.[21] Human rights tribunals must also be sensitive to their role as quasi-judicial arbiters and not fashion remedies which usurp the role of the other branches of governance by taking on tasks to which other persons or bodies are better suited.[22] The HRTO therefore has the authority to direct Ontario to take positive remedial steps to effective Code compliance.[23] The Supreme Court of Canada has “stressed the need for flexibility and imagination in crafting remedies for infringements of fundamental human rights”. This court has declined to disturb the Tribunal’s public interest remedies, unless an order is overbroad or overreaching, or where there are practical difficulties related to implementation.[24]
[108] Remedial awards under the Code are both compensatory and restorative. The recognition of the quasi-constitutional right must be accompanied by a closely linked remedy. The focus of the analysis is on whether the remedy is consistent with the goal of enforcing and restoring fundamental rights.[25]
[109] As the Court of Appeal for Ontario stated succinctly in Piazza v. Airport Taxi (1989), 1989 CanLII 4071 (ON CA), 69 O.R. (2d) 281 (C.A.) “[t]he purpose of the compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred.” Piazza has been applied consistently by both Ontario courts and tribunals and adopted by other Canadian jurisdictions.[26]
[110] The Court of Appeal for Ontario has affirmed that the “Code provides the Tribunal with broad remedial authority to do what is necessary to ensure compliance with the Code”, and this Court has found that the HRTO’s remedial decisions fall at the very heart of its expertise and are entitled to an “extremely high degree of deference”.[27]
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