Heard before: Lois Dyer-Mann (Chairperson), Paul Mullins, Wend Robson

Counsel for the appellant (Robichaud): Marguerite Russel

Counsel for the respondent (Brennan): Donald J. Rennie, Alain Préfontaine

Counsel for the Commission: James Hendry, Cheryl Crane and Patricia Lindsey Peck

Counsel for the Public Service Alliance of Canada: Andrew Raven

Heard in Ottawa, Ontario on November 28 to 30, 1988, January 30 to February 1, 1989, February 6 to 7, 1989, June 13 to 15 1989, and July 17 to 18, 1989 (13 total days of hearings)

This decision is a supplement to the Review Tribunal decision number T.D. 4/83 rendered on February 21, 1983

1) Does the tribunal have the power to review and set aside the agreement at the request of one of the parties to it? YES

2) If the Tribunal decides to do so, do the circumstances and or the terms of the agreement compel them to do so? NO

3) What remedies are appropriate to order at this late date?

Tribunal ordered the DND pay Mrs. Robichaud $5,000 on account of pain and suffering and;

That a formal apology be given to Bonnie Robichaud and that it be posted throughout all DND facilities

From decision:

The Tribunal took their guidance mainly from the SCC decision in this case

P.6, vol. 3: The Court was of the expressed view that despite the existence of a private settlement, there may be work for the Review Tribunal to do to complete its task as mandated by the Act. The Court restored the decision of the Review Tribunal and thereby returned the matter to us for our final determination on the matter of damages.

Mr. Rennie for DND (pgs 13+, vol. 3):

He admitted that significant gains have been made for women as a result of the diligence and effort of R. in pursuing the issue of sexual harassment before several courts of justice

He said that what the federal Court of Appeal had determined had been reversed by Parliament and the Canadian Human Rights Act was amended to provide that the employer was liable for the conduct of its employees in these circumstances.  

Requested leave to raise a preliminary objection as to jurisdiction of the Tribunal to proceed, arguing the final settlement being entered into removed the matter from the jurisdiction of the Tribunal. They argued Mrs. Robichaud entered into this agreement with the advice and instruction of counsel.

Crown argues the terms of the agreement have been respected in their entirety (28)

Also argue questions of whether the agreement is of sufficient scope, whether it was breached or not fulfilled, whether it goes against public policy, etc. are all beyond the scope of the jurisdiction of the Tribunal.

Argued Trial Division of the Federal Court of Canada. (45)

Also asked that the Tribunal consider what the effects of deciding to proceed in these circumstances is on the administration of justice, where parties settle, execute and implement agreements in good faith, ‘’only to find that some three or four years later they are brought back into court by the same parties seeking further compensation.’’ (46)

‘’If you are to proceed, if you reject my submissions and proceed, it can only be inferred that you are either prepared to award damages in excess of the Settlement Agreement or that you are prepared to consider the validity, scope or purpose of the Settlement Agreement. Either case, it is submitted, is something which is beyond the jurisdiction of this Tribunal to consider.’’ (47)

Argue the only party that is really properly before the Tribunal and that has not lost their jurisdiction is the Human Rights Commission itself (not Mrs. R)

Terms of the settlement:

No public disclosure of the contents of the settlement: the only public communication relating to the Agreement would be that R and the DND had arrived at a settlement of all of R’s complains

Compensation for R that would be full and final compensation to which she would be entitled following the complaint (three years’ leave with pay, reimbursement of tuition and books if she proceeded through a course of formal education. At the end, she would accept a transfer to an equivalent position in another federal government department. If that offer were outside of North Bay, the Crown would bear the relocation expenses.)

The settlement provided that the vicarious liability of the employer could proceed to the SCC

Ms. Russell for Mrs. Robichaud (pgs. 21+, vol. 3)

Did not make any representations concerning the text of the agreement at this point.

Did a review of pertinent facts at 49 (suspension without pay, psychiatric assessment request, suspensions within two days of Mr. Brennan)

Argues that it was clear, and that Mr. McLean (then lawyer of Mrs. R.) that to Mrs. R, the matter of her original complaint and the matter of the action in the SCC were separate from the Agreement, and should not have been involved in it (58).

‘’It is certainly my contention that throughout, from the moment this complaint was filed,, management treated Mrs. Robichaud as the problem, the complaint as the problem, and did nothing to rectify that workplace or the attitudes of workers in that workplace; that they then sought by this Agreement to take advantage of their own actions that summer, in effect, by a secrecy order, so that no one would ever, in the light of day, know what had gone on and, more particularly, whether or not that compensation, bearing in mind the wrongful dismissal which took place, was, in fact, this good order, or whether, in fact, in terms of human rights and what she was entitle to for her claim, that was a poor substitute for the kind of order that this Tribunal could have made.’’ (60-61)

‘’All we do know is that, although he (Mr. Brennan) was not present at those negotiations for the Agreement, his interests were well protected in that Agreement. He was absolved o fall personal liability. I would ask this Tribunal to consider this, in considering that Agreement and who is the appropriate forum to consider the circumstances of that Agreement.’’ (62)

Argues that the other party knew they intended to argue for full remedies (letter sent to them) and so that if they felt the matter was suited to a superior court, they could have both notified them that this would be their position, and could have brought a motion to superior court to get a determination on the matter, or could have indicated and asked for a preliminary hearing of this Tribunal on the matter. Bringing this issue up on the first day is inappropriate, argued Ms. Russell (66).

Argument that human rights legislation supersedes (70) and that the SCC has indicated that the fact that parties have reached a settlement, in terms of the Tribunal’s powers under the human rights legislation, means only that it is something that can be taken into account when considering what damages and entitlements should be made available (74), basically Tribunal should still be able to evaluate whether further expenses should be rectified at this stage.

‘’Therefore, I would say that what DND were trying to do, by way of this Agreement, was to say: ‘We have industrial unrest. It’s a poisoned environment. Let’s get rid of her.’ That, in my respectful admission, is not the sort of policy consideration that this Tribunal should allow’’ (76).

‘’In this case, where the employer has denied liability all the way to the SCC and has not made any changes in the workplace of the complainant, in those circumstances, obviously, the policy considerations to what goes on in an agreement are extremely important, particularly when you bear in mind that the Respondents in this case have the authority of government and the resources of government’’ (78). 

Contention is that the Tribunal had a duty under the Canadian Human Rights Act to determine remedies in this case before it. (86)

Mr. Hendry, Canadian Human Rights Commission (87+, vol. 3)

‘’It is the position of the Canadian Human Rights Commission that in these matters of complaint under the Canadian Human Rights Act, the Tribunal or the Review Tribunal, if the case were to reach that level, is in charge of the remedy to be given out, as well as the inquiry into the merits of the complaint. And it has not terminated its inquiry until the issue of remedy is dealt with; that is, in a case where the Tribunal finds that the complaint is substantiated, or, as in this case, where the Tribunal found that the Tribunal below should have found the claim substantiated.’’ (87)

Settlements in the course of human rights litigation are not void ab initio (void completely), but a settlement does not end the issue either. The Tribunal seized of the matter must decide whether the settlement is valid or not (90)

‘’…(the) appropriateness element is what governs your review of what should be the remedy in the particular case.’’ (97)

Russel makes four points at page 102 concerning 1) the legal issues that have been raised 2) the general argument about the voideness of the contract 3) the procedural points that have been raised 4) the Commission’s position

1) ‘’Human rights legislation is important, and it has a special place in our jurisprudential system. That does not confer jurisdiction.’’ (102)

‘’When my friend for the Commission suggests that somehow there is this role for the Commission to bless these settlements or get involved in these settlements, I say, with respect, that it is without any statutory foundation whatsoever.’’ (104)

2) Addresses the preposition that you cannot contract out of human rights legislation. ‘’Section 3 of the Canadian Human Rights Act still overrides that and allows am inquiry to take place as to whether or not that is a discriminatory practice under the Act (106).

‘’What we are saying in this case is that the Department of National Defence got a settlement via various means, which they then used to try and close down so that no public remedy would be given in this very important case. What we are asking for is a full and public remedy.’’ (119)

‘’What is so extraordinary about this case, and which I say the Respondents have done nothing to answer, is this: If everything was as clear as they say it was and that the public interest was being served, why did they not take the responsibility of involving the Commission in the negotiations for this settlement for Mrs. Robichaud?’’

Mr. Rennie: ‘’The only exhibit in evidence before you is Exhibit R-1, and that indicates, prima facie, a binding, complete, executed Settlement Agreement.’’ (111)

Decision of the Charman at p.142+

Decided that Mr. Rennie’s Motion failed.

‘’The Tribunal asserts its jurisdiction to continue this hearing, which was adjourned in 1983, notwithstanding the settlement document signed October 31, 1985.’’

Reasons:

Public policy makes it imperative that any settlement be made subject to the approval of the Tribunal which was seized of the jurisdiction in the matter.

‘’To keep its terms secret makes the settlement more vulnerable to either abuse or the apprehension of abuse.’’ (143-144)

Another concern was the face that all the parties before the tribunal were not parties to the agreement.

Mrs. Robichaud asked that the agreement be set aside. She based her argument on allegations of duress and issues of public policy, specifically because of the non-disclosure provision and the absence of an apology. (setting aside the agreement would allow her to receive considerable awards of compensation)

DND argued the agreement represented a binding, valid, legally enforceable agreement, completely disposing of all issues arising from Mrs. Robichaud`s sexual harassment complaint.

Lt. col. McDonald (152+, vol 4): “Robichaud was in receipt of pay, pursuant to the Agreement, until October 31 this year. With action being taken in that respect it is indicative of the fact that the position as whether or not the Agreement is in force, is equivocal on the part of the other side…

​It has consistently been the position of the department that the Agreement was valid and that the department has been attempting to comply with the Agreement in the utmost good fate.

​[Also] we received no notice that Ms Backhouse would be the first witness. In a normal presentation of evidence, it would be expected that Mrs. Robichaud would be the first witness in order to establish a factual basis for any expert testimony.”

M. Russell (182+, vol 4) : “ When for the first time in this whole processing, manager appear to be moving into conciliatory position … it is not surprising that she gasped at that particular straw and got herself involve in negotiations. But, DND never sat at the table with her. Nor, far as I understand it or so far as she had understood it, did the lawyer ever sit with those other parties. This was not a negotiation where people were all sitting around the table dawning up something on which everybody agreed. That first plan was drawn up, and then nothing. Mrs. Robichaud went to see her lawyer in October because by then, she had started to act within the terms of that Agreement.

In term of benefits, three years’ university is an enormous benefit to anyone. But to start that in the circumstances of doing the job and having to go to school and having a family of five children, this is a generous gift of “we’ill make it as easy of possible”. That was: you prove again that you’re the one who is going to co-operate, [and] put the work in, and we’ll see what we can do.”   

So, by October, while she was going to school, hoping that there is going to be some resolution, because they are obviously not going to do anything in the workplace, that is the circumstance in which that second Agreement of October 17 came into being. That Agreement has entirely to do with her rights before the Supreme Court and her right to damages in this Review Tribunal. Again was never intended to deal with the original complaint.

​When dealing with compensation, whilst you may take it into account in relation to what happened to her partially, I would urge this tribunal not to take it into account for the damages in this action.

​I want to make it clear to the tribunal that she lost by signing [that Agreement]. She as lead hand cleaner at CFB North Bay. […] reinforcement and reiteration of Mrs. Robichaud as the problem for the department, rather than the department as the problem for Mrs. Robichaud.

​That Agreement is itself […] see the victim as the person to be transferred out a bad environment.

​They are going to send her to university for 3 years [and] if she gets her degree, they will offer her a . There is no provision about consideration being given to whether or not she would change from being a cleaner or whether or not they would do a career program for her to see where her university studies have led her.

The Agreement is silent on the question of . The harassment took place because of the vulnerability of a person whilst on probation.

​They were just her, because, if they were to dismiss her, it would be unlawful. So they paid her wages but didn’t make up any of other benefits. In effect, they paid her to go away.

In 2 very important respects that Agreement was breached. (186+)

Whether or not the motion to quash and the introduction of the Agreement as a reason for quashing the action in the Supreme Court was breach in spirit, if not in terms, of the Agreement, is a matter that I am not going to pursue expect to say that it was the clear understanding of every single party that that was of considerable importance to Mrs. Robichaud.

​That Agreement was so bad in protecting her rights and such poor remedy – at the end of the 3 years, she could be . The Agreement give no protection. She had no say as to where they would go. However, the government did agree to pay the moving costs.

Going to the university, because she was then on basic wage with no overtime, was expensive and difficult. The family income was lower than it was when she was actually working.

​This was an Agreement to get her out of the way [and to] silence her.

​Once she had indicated that she was properly pursuing her rights all question of moving expenses was put in abeyance. Her moving expenses have not been paid.

Up until the first week of October, the position on her job was “you go on the ”. That is what it what it means. You don’t actually have a job. It was only after reference was made to the Agreement that an actual job was then suddenly offered by the Public Service Commission. She was offered a job at 500$ a year less. When I pointed that out, they offered a second job without any job description.

​The years of anguish and stress deprived [her] children of the sort of home life she would have hoped to have given them. (193) It cost her time and she was paying the costs of this Tribunal.

​Ever since she put that complaint, she has lost all promotion opportunities. That is another quantifiable damage that this Tribunal can quite properly make remedy for (199).

​I will be asking for damages … 5 000$. (Mr. Brennan took out a civil action for slander he asked 30 000$ in damage. He could ask six times the amount for having something said about him that she could ask for having it actually doe to her).  

Tribunal agreed with DND that the agreement is binding and enforceable, and said they found R`s arguments that the agreement was reached under conditions of duress, oppression, lack of adequate counsel, and undue pressure unconvincing.

Tribunal found evidence showed R was represented by counsel throughout, was advised and supported by PSAC, received friendly advice from Dr. Marguerite Ritchie. R herself indicated satisfaction with the terms of the settlement, which allowed her continuance to the SCC on the matter of employer liability, a matter that was important to her. R`s counsel at the time, Scott MacLean, found the settlement to be generous.

Tribunal said they therefore could not set the agreement aside on that issue.

As per s. 41(1), if, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, subject to subsection (4) and section 42, it may make an order against the person found to be engaging or to have engaged in the discriminatory practice

Tribunal believed the settlement is conclusive of any private remedies

Found it unnecessary to set aside the private agreement in order to ensure that the public interests identified in s. 2 of the Human Rights Act were addressed

Therefore they did not address the claims for job guarantees, moving expenses, personal time, interests, and costs (only dealt with pain and suffering and apology)

A. Pain & Suffering

Tribunal was persuaded by the evidence that DND was responsive to the finding of discrimination in a variety of ways since the `80s

Programs established, procedures created, brochures distributed, info posted and newsletter articles written to highlight the forms of discrimination, including sexual harassment (but Tribunal notes it is impossible to effectiveness of these actions)

Types of prohibited conduct were identified and the provisions of the Act articulated

Procedures were identified and made known for lodging and dealing with complaints

Tribunal urged that programming and educations awareness activities continue so that consistency of application and sensitivity can be built for the future benefit of the employee and employer alike

‘’We believe that Mrs. Robichaud’s goal of a healthy work environment is being achieved. Due to her persistence and personal sacrifices in pursuing the matter, when a lesser individual would have abandoned the cause, employees throughout Canada have benefitted.’’

‘’Although we have held that the private agreement has settled her monetary claims, S. 41 (3) (b), which deals with the matter of pain and suffering, goes beyond a mere private entitlement. Its primary purpose is to signal society’s condemnation of discriminatory practices. It is not intended to be a full monetary compensation by way of damages for the pain and suffering experienced by the victim. We find an award under this section is not precluded by reason of the private settlement.’’

In determining the amount of the award, the Tribunal considered the following factors:

a) the singling out of Mrs. Robichaud by downgrading her job responsibilities;

b) the failure to monitor Brennan’s conduct to prevent him from attempting to influence witnesses before the Tribunal of the first instant;

c) the failure to prepare both Robichaud and her fellow employees for her return to work two days after Brennan’s dismissal; and

d) the failure, even to this date, to offer an unequivocal apology to Mrs. Robichaud.

‘’We believe the existence of the cap of $5000 does not suggest a rating structure whereby one must experience the “worst” case of discrimination in order to be awarded the maximum. Nor are we persuaded that the Charter arguments advanced by counsel for Mrs. Robichaud have any merit. The existence of a cap of $5000 is not of itself a discriminatory act by Parliament. Accordingly, we make an order for payment of $5000 under this Section of the Act.

Pecuniary damages

Mr. Rennie (p. 824+, book 7)

‘’It will be my submission, at the end of this, that the claim for damages is so totally devoid of any reliability or evidentiary foundation that it will have to be discounted entirely.’’

Mr. Rennie interrogated Mrs. Robichaud about every single receipt during trial

(Newsletter – Bonnie Robichaud – September – October 1988 Issue Number 8)

Robichaud is asking for all the costs as a result of the discriminatory practice. (670, vol. 6)

Madame Robichaud was awarded three years of paid education leave, plus education expenses and related expenses (between 75 000$ and 100 000$) (902, vol. 8)

Economic losses (workplace losses) have been evaluated at approximately 162 000$ by Salter. Compensatory special damages has been revised at 59 000$ (927, vol. 8)

Actual back pay losses of twenty-two-eight-forty for the promotions, and the overtime, and the fringe benefits, to the total of thirty-nine-eight-five-eight … So the total adjustments, for all three of the wage-based categories, amounts to the nine-thousand-nine-sixty –five adjustment factor.

​

Mr. Mullins (833+)

‘’And I’m advising you that in my mind, as a member of this Tribunal, that I find it very difficult to consider the types of expenses relating to her household, inconveniences that resulted from the case, to be in the same kind of category as those where she was directly advancing the case itself – and that’s taking the two extremes. There are other categories in there too, and to put them all together, as you seem intent on doing, and to advance them all on the same basis, is not doing yourself justice, or your clients justice, in terms of the strength of the case you might make on those items that are more directly related to the case in front of us.’’ (833-844)

B. Apology

‘’Any apology goes far beyond a confirmation of the personal vindication of the victim. It serves a broad educational function that can advance the purposes of the Act: it tells every employee throughout the country and abroad that a prominent institution and employer in our society stands firmly for equality in the workplace. By its very existence it acknowledges that it was a party to a serious affront to human dignity. It holds out the hope and the commitment that the mistakes of the past will not be repeated in the future. We recognize that an apology under compulsion is somewhat diminished but nevertheless the gesture and words signal an important commitment to change. Accordingly, we order that a formal apology be given to Bonnie Robichaud and that it be posted throughout all DND facilities’’ (p. 12).

C. Enforcing the compliance of the private settlement (obiter)

While the Tribunal had no jurisdiction to enforce compliance with the terms of the private settlement, they noted they expected that its terms be honored, including the provision of suitable permanent position in the public service, at a level that reflects the upgraded qualifications and experience Mrs Robichaud has earned in the interim, and that she be paid her moving expenses according to the approved federal government guidelines in effect at the time of the move.

Observation of the Review Tribunal (167, vol 4) : in this case there was no clearly-defined policy against sexual harassment which had been communicated to the employers.

When the complaints were brought to the attention of Mr Brennan’s superiors, no investigation was conduct by the employer.

On the contrary, steps were taken to remove Mrs. Robichaud to from the normal routine of a lead hand.

​There was certainly no indication that Mr. Brennan was disfavored.

​There was an orchestrated attempt to discredit Mrs. Robichaud after she had filed her complaint by the flood or letter and petition against her.

​We find particularly irresponsible on the part of the employer that the activities of Mr. Brennan in relation to the personnel who were called to testify before the Tribunal were not monitored so as to prevent any coercion or intimidation of them.