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Human Rights (Fed) - Remedy. Canada (Public Service Alliance) v. Canada
In Canada (Public Service Alliance) v. Canada (Fed CA, 2026) the Federal Court of Appeal dismissed appeals, these brought against dismissals of actions in the Federal Court challenging the constitutionality of the 'Caps', which are "limits on the amount that may be awarded to a maximum of $20,000 for pain and suffering and $20,000 for reckless and wilful conduct" under the CHRA, these grounded in Charter s.15.
Here the court reviews the CHRA regime, focussing on it's remedies:[1] When the Canadian Human Rights Tribunal determines that a human rights complaint has been substantiated, its remedial discretion is engaged. The Canadian Human Rights Act, R.S.C., 1985, c. H-6 provides the Tribunal with a range of remedial powers. Amongst other things, these include the power to order a respondent to cease the discriminatory practice in question, and to make available to the victim the rights, the opportunities or privileges that were denied to them as a result of the discriminatory practice. The Act further empowers the Tribunal to provide complainants with compensation for wages lost and expenses incurred as a result of the discriminatory practice. There is no monetary limit on the amount that may be awarded to a victim of discrimination for lost wages and expenses incurred as a result of the discriminatory conduct.
[2] The Tribunal can also compensate complainants for the pain and suffering that they experienced as a result of a discriminatory practice and can provide them with additional compensation where the Tribunal finds that the respondent has engaged in the discriminatory practice wilfully or recklessly. In these latter two situations, however, the Act imposes limits on the amount that may be awarded to a maximum of $20,000 for pain and suffering and $20,000 for reckless and wilful conduct. These statutory maximums are referred to as "“the Caps”" in these reasons.
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II. The Statutory Regime
[11] Before addressing the appellants’ arguments, it is first necessary to appreciate the statutory context in which the Caps are situated.
[12] Parliament enacted the Canadian Human Rights Act in 1977, with the stated purpose of giving effect, within the purview of matters coming within its legislative authority, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated without discriminatory practices based on prohibited grounds: see section 2 of the Act.
[13] Section 3 of the Act prohibits discrimination on a number of specified grounds. These are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
[14] Many, but not all, of these grounds are also enumerated or analogous grounds for the purpose of section 15 of the Charter. That said, genetic characteristics and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered, are prohibited grounds of discrimination under the Act but have not been recognized as analogous grounds under the Charter. Moreover (and subject to the comments of the Supreme Court in Thibaudeau v. Canada, 1995 CanLII 99 (SCC), [1995] 2 S.C.R. 627, 124 D.L.R. (4th) 449), family status has also yet to be recognized as analogous grounds under the Charter.
[15] The Canadian Human Rights Commission receives and investigates complaints of discrimination within the federal sphere. If the Commission determines that further inquiry into a complaint is warranted, the complaint will be referred to the Canadian Human Rights Tribunal for determination. Where the Tribunal decides that the complaint has been substantiated, it has a wide range of discretionary remedies available to it under section 53 of the Act, the full text of which is attached as an appendix to these reasons.
[16] In addition to the Tribunal, labour boards and arbitrators adjudicating grievances presented by federally regulated employees also have the authority to interpret and apply the Act and to award damages in accordance with the Act.
[17] The purpose of the remedial provisions provided for under section 53 of the Act "“is to make a victim of discrimination whole and to put the complainant back in the position he or she would have been in had the discrimination not occurred”": Christoforou v. John Grant Haulage Ltd., 2021 CHRT 15 at para. 37, citing Public Service Alliance of Canada v. Canada Post, 2010 FCA 56 at para. 299, aff’d 2011 SCC 57.
[18] The Tribunal can provide systemic remedies, such as orders that the respondent "“cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future”": paragraph 53(2)(a).
[19] The Tribunal can also provide individual remedies that assist in making whole the victim of the discrimination, such as orders that the respondent "“make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice”": paragraph 53(2)(b).
[20] Insofar as a victim’s monetary losses are concerned, paragraph 53(2)(c) of the Act provides that the Tribunal can order the respondent to "“compensate the victim 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”". Paragraph 53(2)(d) further provides that the Tribunal can order a respondent to "“compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice”". The Act does not impose a limit on the amount of the awards that the Tribunal can make under these headings.
[21] The Act further authorizes two types of awards for non-pecuniary damages. These are the provisions at issue in these appeals.
[22] Paragraph 53(2)(e) of the Act allows the Tribunal to order that a respondent compensate the victim of the discriminatory practice "“""by an amount not exceeding twenty thousand dollars"", for any pain and suffering that the victim experienced as a result of the discriminatory practice”". The Tribunal can also award what the Act calls "“special compensation”" under subsection 53(3). That is, where the Tribunal finds that a respondent has engaged in a discriminatory practice wilfully or recklessly, it may order that the respondent "“pay such compensation ""not exceeding twenty thousand dollars"" to the victim”". The italicized portions of the two provisions are the words with which the appellants take issue and that PSAC seeks to have severed from the Act.
[23] As originally enacted, the Canadian Human Rights Act permitted awards for pain and suffering and reckless and willful behaviour of up to a combined total of $5,000. The $20,000 caps were introduced in amendments to the Act that came into force in 1998. They have not been varied since, and they are not indexed for inflation. . Matos v. Canada (Attorney General)
In Matos v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal allowed a JR, here against a Federal Public Sector Labour Relations and Employment Board (FPSLREB) finding against discrimination (here, a 'non-discrimination' right embodied in the collective agreement, not from the CHRA).
Here the court considers the remedy, once discrimination has been found:[73] As noted earlier, paragraph 53(2)(e) of the Canadian Human Rights Act allows the Board to compensate a victim of discrimination "“by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice”".
[74] In addressing the question of damages for pain and suffering, the Board accepted the CBSA’s contention that Mr. Matos "“experienced no harm, or at the worst very little harm”": at para. 195. The Board went on in the same sentence to say "“I would, in the alternative, if I am mistaken in my finding on the matter of a ""prima facie case of discrimination, award a nominal $1000 under s. 53(2)(e) of the ""CHRA for any pain and suffering that he experienced as a result of the discriminatory practice”".
[75] It is thus clear that the Board’s assessment of the pain and suffering suffered by Mr. Matos was based on its mistaken understanding as to the nature and extent of this harm, and it must be set aside for this reason.
[76] Mr. Matos also asks that he be given an opportunity to reargue his entitlement to special compensation under subsection 53(3) of the Canadian Human Rights Act. It will be recalled that this provision allows the Board to order special compensation in an amount not to exceed $20,000.00 if it finds that the respondent "“has engaged in the discriminatory practice willfully or recklessly”".
[77] The Board refused to make any award to Mr. Matos under this provision, finding that the CBSA had not acted willfully or recklessly. This was a finding that was reasonably open to the Board on the record before it, based as it was on the Board’s appreciation of the nature of the CBSA’s conduct, rather than its understanding of the impact that the conduct had on Mr. Matos. Consequently, I would decline to make such an order.
[78] We were advised at the hearing that the Board member who decided Mr. Matos’ case has since retired. As a result, I would remit Mr. Matos’ case to a different Board member for a reassessment of his entitlement to damages for pain and suffering under paragraph 53(2)(e) of the Act. I would allow the parties to rely on the existing record and/or to lead additional evidence on the damages question, as they see fit.
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