View source for Public Interest Remedy

[[Category:Human Rights]]

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==Human Rights Code{{HRC}}==

<b>Orders of Tribunal:  applications under s. 34</b>

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1.  An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2.  An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

<b><u>3.  An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.</b></u>

==<i>Sandhu v. Regional Municipality of Peel (Police Services Board),</i> 2017 HRTO 1221 (CanLII)<ref name="Sandhu"/>==

[21]        The respondent argues that the applicant should not be permitted to seek systemic remedies in a case where the finding of liability was not based on any evidence of systemic discrimination. <b><u>Though I agree that the scope of any remedies ordered must be tied to the finding of liability, it is also clear from the wording of s. 45.2 that public interest remedies are, by their nature, designed to go beyond addressing any wrong done to the individual applicant.</b></u> Public interest remedies may be ordered to ensure similar violations do not occur in the future. Even where based on a finding that one individual was subject to discrimination, public interest remedies will be broader in nature. See McWilliam, at paras. 24-27.

<b><u>[22]        Public interest remedies must nonetheless not be overreaching, and must be tied to the findings of the Tribunal.</b></u> See <i>Ontario Human Rights Commission v. Christian Horizons,</i> 2010 ONSC 2105 (Div. Ct.)<ref name="Christian Horizons"/>, (“Christian Horizons”), at paras. 114-121. In the present case, this means any public interest remedy ordered must be related to a finding in the Liability Decision, and must be designed to prevent similar treatment in the future.

[23]        Whether the public interest remedies sought by the applicant are appropriate based on my earlier findings is the issue to determine during at the remedy hearing. The remedies as framed do not appear to be clearly outside the scope of what could properly be ordered. As such, I am prepared to grant the applicant’s request to amend the public interest remedies sought. A decision on what remedies are appropriate will only be made after hearing the parties’ full submissions and, if appropriate, evidence on the issue of remedy, including whether the public interest remedies sought will promote future compliance with the Code.

<ref name="Sandhu"><i>Sandhu v. Regional Municipality of Peel (Police Services Board),</i> 2017 HRTO 1221 (CanLII), <https://canlii.ca/t/h68nf>, retrieved on 2021-08-18</ref>
<ref name="Christian Horizons"><i>Ontario Human Rights Commission v. Christian Horizons,</i> 2010 ONSC 2105 (CanLII), <https://canlii.ca/t/29sf6>, retrieved on 2021-08-18</ref>

==<i>Aiken v. Ottawa Police Services Board,</i> 2019 HRTO 934 (CanLII)<ref name="Aiken"/>==

[30]        Having said that, any public interest remedy that may be ordered must nonetheless be tailored to address the specific claim raised in the proceeding. A good example of a tailored public interest remedy comes from the Supreme Court of Canada’s decision in <i>C.N. v. Canada (Human Rights Commission),</i> 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114.<ref name="CN"/> In that case, the tribunal found that C.N. had engaged in discriminatory hiring and promotion practices by denying employment opportunities to women in certain blue-collar positions. Having made this finding, the tribunal ordered public interest remedies that included permanent measures, special temporary measures, and submission of data to the Canadian Human Rights Commission. The important point is that these public interest remedies were specifically tailored to address not every problem that women may confront in the context of their employment at C.N., but the specific claims of the women who appeared before the tribunal relating to discriminatory practices in the context of “non-traditional jobs” at C.N. and the need to remedy those discriminatory practices both directly, by prohibiting certain practices, and indirectly, by imposing an employment equity program to increase the representation of women in non-traditional jobs.

(...)

<b><u>[32]        In determining whether to order a public interest remedy, this Tribunal will consider steps that a respondent already has taken to address the issue raised in the proceeding when deciding whether ordering a public interest remedy is appropriate.</b></u> For example, in <i>Phipps v. Toronto Police Services Board,</i> 2009 HRTO 1604<ref name="Phipps"/>, this Tribunal held that ordering a public interest remedy was not warranted due to the actions taken by the respondent to reduce the occurrence of racial discrimination in policing. This Tribunal appended to its decision a document setting out these actions. The Tribunal found that, in light of these initiatives, no public interest remedy was required. Similarly, in <i>Maynard v. Toronto Police Services Board,</i> 2012 HRTO 1220, this Tribunal also declined to order a public interest remedy on the same basis.

(...)

<b><u>[51]        The respondent submitted before me that public interest remedial orders made by human rights tribunals are often general in nature, and often leave the details of implementation up to the respondent.</b></u> For example, in <i>Johnson v. Halifax Regional Police Service,</i> (2003) 2003 CanLII 89397 (NS HRC), 48 C.H.R.R. D/307,<ref name="Johnson"/> the Nova Scotia Human Rights Board of Inquiry ordered the Halifax police to retain two consultants from a list to be provided by the Nova Scotia Human Rights Commission to conduct a needs assessment of the police service’s current practices and policies on anti-racism education and diversity training, with the consultants’ report to be made public as well as the police service’s response to the report. In making this order, the Board of Inquiry expressly balanced the need of the public to know that its police service was making its best efforts to provide services in a non-discriminatory fashion, with the need of police management to be able to plan for deployment of its budgetary and human resources in an efficient fashion. For that reason, the Board of Inquiry stated that it had left the modes of implementation of the order largely to the police, while the public was kept informed about measures that were underway and had the ability to comment.

[52]        Similarly, in <i>Krieger v. Toronto Police Services Board,</i> 2010 HRTO 1361<ref name="Krieger"/>, this Tribunal made a general order for the respondent to work in consultation with the Toronto Police Association and the OHRC or another external human rights expert to develop a disability accommodation policy consistent with the OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate. In addition, in <i>Nkwazi v. Correctional Service Canada,</i> 2001 CHRT 6296, the Canadian Human Rights Tribunal made a general order for the respondent to consult with the Canadian Human Rights Commission with respect to its anti-discrimination and harassment policies, procedures and employee education programs, and to take measures to prevent the same or similar practices from occurring in the future.

<b><u>[53]        The applicant also submitted that any public interest remedial order that I make should not be overly detailed or prescriptive, in order to retain flexibility for the parties to adapt the implementation of any order in light of potentially changed circumstances</b></u>, relying on the decision in <i>First Nations Child and Family Caring Society of Canada v. Canada (Attorney General),</i> 2016 CHRT 10<ref name="First Nations"/> at paras. 14 to 18.

[54]        In <i>Doucet-Boudreau</i>,<ref name="Doucet-Boudreau"/> above, <b><u>the Supreme Court of Canada emphasized the need for courts to be sensitive to their role as judicial arbiters and not fashion remedies which usurp the role of other branches of governance by taking on tasks to which other persons or bodies are better suited: see para. 34ff.</b></u>

[55]        This admonition applies equally in the context of public interest remedial orders made by this Tribunal: see <i>Ball</i><ref name="Ball"/>, above. Even if making a particular public interest remedial order is not viewed as usurping the role of the government, the steps taken by government to address a particular issue are nonetheless a contextual factor that needs to be taken into account when this Tribunal considers whether making a public interest remedial order is appropriate in the circumstances.

<ref name="Aiken"><i>Aiken v. Ottawa Police Services Board,</i> 2019 HRTO 934 (CanLII), <https://canlii.ca/t/j0vxm>, retrieved on 2021-08-18</ref>
<ref name="CN"><i>CN v. Canada (Canadian Human Rights Commission),</i> 1987 CanLII 109 (SCC), [1987] 1 SCR 1114, <https://canlii.ca/t/1lpg8>, retrieved on 2021-08-18</ref>
<ref name="Phipps><i>Phipps v. Toronto Police Services Board,</i> 2009 HRTO 1604 (CanLII), <https://canlii.ca/t/2608k>, retrieved on 2021-08-18</ref>
<ref name="Maynard"><i>Aiken v. Ottawa Police Services Board,</i> 2019 HRTO 934 (CanLII)</ref>
<ref name="Johnson"><i>
Johnson v. Halifax Regional Police Service,</i> 2003 CanLII 89397 (NS HRC), <https://canlii.ca/t/gb7sl>, retrieved on 2021-08-18</ref>
<ref name="Krieger"><i>Krieger v. Toronto Police Services Board,</i> 2010 HRTO 1361 (CanLII), <https://canlii.ca/t/2b6p0>, retrieved on 2021-08-18</ref>
<ref name="First Nations"><i>
First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada),</i> 2016 CHRT 10 (CanLII), <https://canlii.ca/t/gppjk>, retrieved on 2021-08-18</ref>
<ref name="Doucet-Boudreau"><i>Doucet-Boudreau v. Nova Scotia,</i> [2003] S.C.R. 3 <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2096/index.do>, retrieved August 18, 2021</ref>
<ref name="Ball"><i>Ball v. Ontario (Community and Social Services),</i> 2010 HRTO 360 (CanLII), <https://canlii.ca/t/285qv>, retrieved on 2021-08-18</ref>

==<i>Giguere v. Popeye Restaurant</i>, 2008 HRTO 2 (CanLII){{Giguere v. Popeye Restaurant, 2008 HRTO 2 (CanLII)}}==

[78]  I have found that the respondents violated the Code in terminating Ms. Giguere's employment on April 20, 2004. In the normal course, I would consider awarding special damages for lost income and general damages for the breach of Ms. Giguere's right to be free from discrimination. I decline, however, to award any personal remedies to Ms. Giguere. I have found that she did offer money to Ms. MacIvor in exchange for providing false testimony before the Tribunal. This is an extremely serious breach of the Tribunal's process.

<b><u>[80]  These statutory provisions give the Tribunal a broad discretion to award remedies it considers appropriate in particular circumstances.</b></u> In the instant case, I have found that the complainant engaged in a serious abuse of process. Coaching or soliciting a witness to commit perjury, and offering money to do so, is one of the gravest abuses a party can commit. It undermines the Tribunal's ability to determine complaints based upon the facts and the true merits of a case. The Tribunal is dependent upon the individuals who testify before the Tribunal to tell the truth.

b.    Public Interest Remedies

[90]  Having found that Ms. Landry and Popeye Restaurant violated the <i>Code</i>, I turn now to the appropriate public interest remedies. The Commission seeks a broad range of remedies, including training for Ms. Landry and her employees, the posting of this decision and the posting of public information notices about the <i>Code</i> ("<i>Code cards</i>").

<b><u>[91]  Public interest remedies should be reflective of the facts in the case, should be remedial, not punitive and should focus on ensuring that the key objects of the Code, to eradicate discrimination and to ensure future compliance, are achieved in the particular circumstances.</b></u> (See: <i>Papa Joe's Pizza v. Ontario (Human Rights Commission)</i>, [2007] O.J. No. 2499 (QL), 2007 CanLII 23487 (Div.Ct.) [reported 60 C.H.R.R. D/517];{{Papa Joe's Pizza v. Ontario Human Rights Commission, 2007 CanLII 23487 (ON SCDC)}} <i>Pchelkina v. Tomsons</i>, 2007 HRTO 42 [ CHRR Doc. 07-675].){{Pchelkina v. Tomsons, 2007 HRTO 42 (CanLII)}}

[94]  In my view, there may well be a need for public education in this community about discrimination against people living with HIV/AIDS. The Tribunal is not in a position to order that remedy. But there are organizations that do support individuals living with HIV/AIDS, who work to raise awareness in Geraldton and to provide community education. In that respect, I believe that it would be an appropriate remedy for Ms. Landry to be required to provide assistance in those efforts. This approach will send the message to local businesses and service providers that there are consequences for violating the <i>Code</i>. At the same time, this remedy will assist in raising awareness and understanding in the community.

==References==