MANITOBA HUMAN RIGHTS BOARD OF ADJUDICATION

IN THE MATTER OF: The Human Rights Code C.C.S.M. c. H175, as amended;

 

IN THE MATTER OF: A Complaint by C.R. against Canadian Mental Health Association, Westman Region Inc., alleging a breach of section 14 of The Human Rights Code.

BETWEEN:

C.R.,

Complainant,

- and -

 

CANADIAN MENTAL HEALTH ASSOCIATION,
WESTMAN REGION INC.,

Respondent.

Adjudicator:

M. Lynne Harrison

Appearances:

For the Manitoba Human Rights Commission
and the Complainant: Isha Khan

For the Respondent: G.K.

REASONS FOR DECISION
(Requests for recalculation and reconsideration)

In my Reasons for Decision in this matter released January 7, 2013, I found that the Respondent discriminated against the Complainant in her employment on the basis of disability in breach of section 14 of The Human Rights Code (the “Code”).

In the result, I ordered, among other things, that the Respondent pay to the Complainant the equivalent of four weeks’ wages as compensation for wages lost by reason of that breach.  I calculated such compensation to be in the amount of $1,894.20 based on amounts said to have been paid to the Complainant on account of two weeks’ wages in lieu of notice according to Records of Employment (“ROE”s) included in the Agreed Book of Documents submitted by the parties.  In the event that my calculation was incorrect, I retained jurisdiction for the purpose of resolving any issues which might arise with respect thereto.

By letter dated January 9, 2013, counsel for the Manitoba Human Rights Commission (the “Commission”) submitted a request on behalf of the Commission and the Complainant for recalculation of the lost wages award.  Referring to the eight ROEs included in the Agreed Book of Documents (a handwritten and a typed version for each of the four positions occupied by the Complainant), counsel submitted that the calculation should be based on the “total insurable earnings” amounts shown on the ROEs, instead of the “in lieu of notice” amounts.  It was also submitted that the typed versions of the ROEs should be relied upon, as opposed to the handwritten ones.

More particularly, counsel argued in her written submission that the amounts which had been paid to the Complainant on account of two weeks’ wages in lieu of notice had been miscalculated by the Respondent.  Noting that any outstanding amounts owing under The Employment Standards Code had been “pursued through Manitoba Labour”, counsel stated that they were not claiming any further amounts in respect of that two-week period.  It was submitted, however, that the total lost income award is intended to compensate the Complainant for four weeks’ wages.  Counsel argued that the Complainant’s total insurable earnings, as set out on the ROEs, are based on the last 14 (or, in one instance,13) consecutive bi-weekly pay periods.  Based on those earnings, counsel recalculated lost wages for a four-week period to be in the amount of $3,526.24.  It was submitted that these recalculations “more appropriately align with the Complainant earning a gross amount of . . . approximately $45,679.38 per year, before taxes”.  It was therefore submitted, on behalf of the Commission and the Complainant, that the award of $1,894.20 for lost wages be amended to $3,526.24.

On January 9, 2013, I wrote to the Respondent by e-mail and asked that it advise as to its position with respect to the request by the Commission and the Complainant.

On January 15, 2013, I received an e-mail from G.K. stating:

Please note that [counsel's] assertion that [C.R.] was making approximately $45,679.38 annually is not correct. The total Gross Wages for [C.R.] from September 1, 2007 to August 31, 2008 was $30,652.34.

On January 17, 2013, I again e-mailed the Respondent to ask that it advise as to what position it was taking, if any, with respect to the Commission's request for recalculation of the lost wages award. By return e-mail, G.K. advised that the Respondent "does not support any increase with regards to lost wages . . . ."

On March 5, 2013, I received a further, unsolicited e-mail from G.K., in which he stated that the Respondent had noted "several unintentional errors" in the Commission's calculations. Attached to that e-mail was a two-page document detailing and correcting such "errors". At the end of that document, the Respondent recalculated the wages lost for a four-week period to be in the amount of $2,908.94, and the equivalent of the Complainant's annual wages to be in the amount of $37,371.40.

On March 6, 2013, I received yet another e-mail from G.K., in which, among other things, he referred to a passage which was said to be from the Commission’s “Investigation Assessment of March 9th, 2010” and to relate to what the Complainant had told the Commission’s investigator.  Attached to the e-mail was a single page (numbered 22) where that passage appeared and was underlined.  In his e-mail, G.K. concluded as follows:

Based upon [C.R.’s] above statement to the Human Rights Investigator, which is new evidence to you, CMHA requests that you deny her request for a recalculation of wages, and furthermore, CMHA requests that you reverse your judgment against CMHA Westman and order that 100% of those funds that were paid to [C.R.] be returned to CMHA Westman.

As a general rule, the doctrine of functus officio provides that once an adjudicator, whether it be an administrative tribunal or a court, renders a final decision, its authority is exhausted.  At that point, the adjudicator cannot alter its award, subject to certain exceptions.

The origin of this rule and its exceptions were outlined as follows by Mr. Justice Sopinka in the decision of the Supreme Court of Canada in Chandler v. Association of Architects (Alberta), [1989] 2 S.C.R. 848 (“Chandler”), at page 860:

The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88.  The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:
  1. where there had been a slip in drawing it up, and,
  2. where there was an error in expressing the manifest intention of the court.  See Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186.

As regards the application of the doctrine of functus officio to administrative tribunals, Mr. Justice Sopinka went on to state, at pages 861 to 862, that:

… there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals.  As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances.  It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.

To this extent, the principle of functus officio applies.  It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal.  For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law.  Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. . . .

Furthermore, if the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task.  If, however, the administrative entity is empowered to dispose of a matter by one or more specified remedies or by alternative remedies, the fact that one is selected does not entitle it to reopen proceedings to make another or further selection.  Nor will reserving the right to do so preserve the continuing jurisdiction of the tribunal unless a power to make provisional or interim orders has been conferred on it by statute. . . .

(Emphasis added)

In the instant case, the Commission has argued that the award for lost income ought to be recalculated based on the insurable earnings listed on the ROEs to reflect what was intended, namely, to compensate the Complainant for four weeks’ wages in lieu of notice.

In the course of the hearing in these proceedings, I expressly asked what amount the Complainant was claiming for financial losses resulting from the alleged discrimination.  Notwithstanding that request, no specific amount was identified.  Rather, as stated in my Reasons and as acknowledged by counsel in her request for recalculation, it was submitted on behalf of the Commission and the Complainant that the amount should be calculated based on the information disclosed in the ROEs contained in the Agreed Book of Documents, and in particular, based on the wages in lieu of notice referred to in those ROEs.  In keeping with that submission, I calculated compensation for lost wages based on the amounts paid for wages in lieu of notice as disclosed on the ROEs.

The Commission now argues that the wages in lieu of notice as listed on the ROEs were miscalculated, and that I should instead rely on the insurable earnings as disclosed on the ROEs.  There was no evidence or even suggestion at the hearing that the wages in lieu of notice as listed on the ROEs had been miscalculated.  On the contrary, as indicated above, the Commission expressly sought an order for four weeks’ wages in lieu of notice based on those amounts.  What the Commission is now arguing is that I should adopt a different approach or basis for calculating such compensation.  I do not believe that it is open to me to do so.

The amount of compensation was specifically raised, and the parties had full opportunity to address, and did address, that issue at the hearing.  I made my decision, including the compensation calculation, based on the evidence which was before me and the submissions of the parties.  Having issued that decision, I am functus officio, and have no jurisdiction to reopen the proceedings and decide the matter on a different basis.

I recognize, as stated in Chandler, that the application of the principle of functus officio must be more flexible and less formalistic in proceedings of this nature.  I am satisfied, nevertheless, that none of the exceptions to the rule of functus officio applies in this instance.  I do not believe that there is any suggestion that I made a clerical or mathematical error in my calculation or that the award on this point was unclear.  I am further satisfied that the award of $1,894.20 as compensation for lost wages expressed and gave effect to what I meant and intended when the Reasons were issued.  That the Commission and the Complainant concluded, after my decision was released, that wages in lieu of notice ought to have been calculated on a different basis than what  had previously been submitted, does not mean that the award failed to express what was intended.

The fact that I expressly retained jurisdiction to address any issues in respect of my calculation, in the event that that calculation was incorrect, does not change my conclusion in this regard.  Chandler makes it clear that reserving the right to deal with a question or issue with respect to the decision does not necessarily preserve jurisdiction.  My retention of jurisdiction did not empower me to reconsider or change the basis on which the calculation of lost compensation was made as requested herein, nor could it have done so.

Even if I am wrong in this regard and I do have the authority to “recalculate” the lost compensation award as requested by the Commission, I am not satisfied that it would be appropriate to do so in these circumstances and based on the evidence and submissions which are properly before me.  Commission counsel refers to the “insurable earnings” listed on the ROEs which form part of the Agreed Book of Documents.  While the ROEs were in evidence at the hearing, there was no reference at that time to the “insurable earnings”, and no submission or other evidence as to what was included in those earnings.  Block 15B of the ROE, which is now relied on by the Commission, is labelled “total insurable earnings according to chart on reverse” (or “on page 2”) (emphasis added).  The reverse or page 2 of the ROEs was not included in the Agreed Book of Documents; in each case, what was submitted was a single one-sided page.  In its submission, the Commission refers to one section of an online employer’s guide to completing the ROE, dealing with Block 6, the pay period type.  The Commission does not refer to other portions of that guide which deal with insurable earnings, notably Block 15 and Annex 1 of the guide.  Annex 1 lists a large number of different types of earnings which are to be included in “insurable earnings”, such as bonuses, vacation pay and pay in lieu of notice.  In the circumstances, I do not know which types of earnings were in fact included in the amount listed under “total insurable earnings” on each ROE.  It is not open to me to surmise or guess as to what the “total insurable earnings” on the ROEs consist of, or what portion of those earnings might properly be used to calculate the equivalent of four weeks’ wages in lieu of notice.

The Commission argues in its submission that the calculations based on “total insurable earnings” “more appropriately align with the Complainant earning a gross amount of . . . approximately $45,679.38 per year, before taxes.”  There was no evidence adduced and no argument advanced at the hearing as to what the Complainant’s gross annual earnings were.  As stated in my Reasons, the Respondent did not make any submission at the hearing with respect to remedies.  Faced with the Commission’s current submission, however, G.K. responded in his e-mail of January 15, 2013, that the above amount was incorrect and referred to a lesser amount as representing the Complainant’s gross wages from September 1, 2007 to August 31, 2008.  That amount is not properly before me. It is reasonable to expect, however, that had the arguments and amounts that are now being advanced by the Commission been raised at the hearing, the Respondent might well have chosen to respond to them.

The Commission has also submitted that the typed versions of the ROEs should be relied upon, instead of the handwritten ones.  As noted by the Commission, the award for lost wages was calculated based on the amounts paid as two weeks’ wages in lieu of notice as indicated on the handwritten versions of the ROEs for the positions of fundraising coordinator (wage) and housing co-ordinator, being $358.75 and $588.33 on Agreed Document Nos. 16 and 20, respectively, multiplied by two.  In the case of the fundraising co-ordinator, the same amounts appeared on the handwritten and typed versions of the ROEs (Doc. Nos. 16 and 17).  In the case of the housing co-ordinator position, however, a higher amount was shown as having been paid for wages in lieu of notice on the typed version of the ROE: $708.02 on Document No. 21, as opposed to $588.35 on Document No. 20.  Using the amount indicated on the typed version would have increased the amount of the award for lost compensation by $235.34, to $2,129.54 instead of $1,894.20.

As before, however, I am satisfied that I do not have jurisdiction to change or increase the award for lost compensation in this way, based on the principle of functus officio.

Further, or in any event, I do not believe that such a change or increase would be appropriate in these circumstances.  The Commission submits that the typed versions of the ROEs should be relied on “as these are the documents obtained from the Complainant’s Employment Insurance file and will therefore be relied upon with respect to any amounts she is required to repay to EI on receipt of the adjudication award.”  I am not sure that I entirely understand this submission, but at any rate, there was certainly no evidence or argument to this effect at the hearing.  While all eight ROEs were filed as part of the Agreed Book of Documents, no reference was made as to any difference between the handwritten and typed versions of each document, or as to whether one version was to be preferred over the other.  I note that at the bottom of all eight ROEs is the statement “I am aware that it is an offense to make false entries and hereby certify that all statements on this form are true.”  The signature of J.N., as the person who issued the ROE, appears below that statement on each of the four handwritten ROEs.  The typewritten name of the issuer, J.N., appears below that statement on the other four ROEs.  With respect to three of the positions, the typed and the handwritten versions of the ROEs bear the same date.  As regards the caretaker position, however, the typed ROE appears to predate the handwritten one, as the typed ROE (Doc. No. 14) is dated September 22, 2008, and the handwritten ROE (Doc. No. 15) is dated September 27, 2008.

In sum, I am not persuaded that I have the authority to amend the award for lost compensation as requested.  Further, or in any event, I do not believe that it would be appropriate to do so in the circumstances.

In the result, the request on behalf of the Commission and the Complainant to recalculate the award of compensation for lost wages in the Reasons for Decision in these proceedings is denied.

The Respondent has also recently requested, by way of G.K.’s e-mail of March 6, 2013, that I reverse my decision dated January 7, 2013 based on new evidence, and order that the funds which the Respondent has paid to the Complainant as a result of that decision be returned to it.  What the Respondent is requesting is clearly precluded by the doctrine of functus officio as outlined above.  My decision having issued, I have no jurisdiction to receive that evidence or to entertain that request.  The proper place to challenge that decision would have been through judicial review, as contemplated under the Code.  For whatever reasons, as G.K. stated in his e-mail of March 6, 2013, the Respondent decided not to pursue that option.  It cannot now come back to me and ask me to admit new evidence and reverse my decision.

Accordingly, the Respondent's request, as set out in its e-mail of March 6, 2013, is denied.

Dated at the City of Winnipeg, in Manitoba, this 8th day of April, 2013.

“M. Lynne Harrison”          
Adjudicator