SUPREME
COURT OF CANADA
Between:
Halifax
Regional Municipality, a body corporate
duly
incorporated pursuant to the laws of Nova Scotia
Appellant
and
Nova
Scotia Human Rights Commission,
Lucien
Comeau, Lynn Connors and Her Majesty
the
Queen in Right of the Province of Nova Scotia
Respondents
-
and -
Canadian
Human Rights Commission
Intervener
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein
and Cromwell JJ.
Reasons for
Judgment:
(paras. 1 to 60)
|
Cromwell J. (McLachlin C.J. and LeBel, Deschamps, Fish,
Abella and Rothstein JJ. concurring)
|
Halifax
(Regional Municipality) v. Nova
Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364
Halifax Regional Municipality, a body
corporate
duly
incorporated pursuant to the laws of Nova Scotia Appellant
v.
Nova Scotia Human Rights Commission,
Lucien Comeau, Lynn Connors and Her
Majesty
The Queen in
Right of the Province of Nova Scotia Respondents
and
Canadian
Human Rights Commission Intervener
Indexed as: Halifax (Regional
Municipality) v. Nova
Scotia
(Human Rights Commission)
2012 SCC 10
File No.: 33651.
2011: October 19; 2012: March 16.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein and Cromwell JJ.
on appeal from the court of appeal for nova scotia
Administrative law —
Judicial review — Standard of review — Complaint filed with Nova Scotia Human
Rights Commission — Commission requesting appointment of board of inquiry —
Decision set aside on judicial review — Board prohibited from proceeding —
Appeal allowed — Whether chambers judge applied correct standard of review —
Whether Commission erred in requesting appointment of board of inquiry.
The complainant, a francophone
Acadian parent who had children enrolled in one of the French‑first‑language
schools in Halifax, filed complaints alleging that the funding arrangements for
the schools discriminated against him and his children on the basis of their
Acadian ethnic origin. Following municipal amalgamation and the consequent
amalgamation of the affected school boards, Halifax imposed a tax to allow it
to satisfy the statutory requirement that it maintain supplementary funding to
schools that had received such funding prior to amalgamation. However, Halifax
schools that formed part of the newly created Conseil scolaire acadien
provincial, a province‑wide public school board that administers French‑first‑language
schools, did not receive supplementary funding. Legislation did not require
Halifax to provide it to these schools.
After investigating the
complaints, the Commission requested that a board of inquiry be appointed.
Shortly thereafter, a Charter challenge brought by other parents led to
a statutory amendment providing for supplementary funding for Conseil schools
in Halifax. The Charter challenge was dismissed on consent. Halifax
applied for judicial review of the Commission’s decision to refer the complaint
against it to a board of inquiry. A judge of the Nova Scotia Supreme Court set
the referral decision aside and prohibited the board from proceeding. The Nova
Scotia Court of Appeal reversed and cleared the way for the board of inquiry to
go ahead.
Held: The appeal should be dismissed.
Judicial intervention is not
justified at this preliminary stage of the Commission’s work. The Commission
did not decide that the complaint fell within the purview of the Act. Instead,
the Commission made a discretionary decision that an inquiry was warranted in
all of the circumstances. That decision should be reviewed for reasonableness.
The decision was reasonable in the circumstances of this case. Whether
judicial intervention is justified at this preliminary stage of the
Commission’s work turns mainly on the ongoing authority of this Court’s
decision in Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756
(“Bell (1971)”). It remains good authority for the proposition that
referral decisions are subject to judicial review, but, beyond that, it should
no longer be followed and courts should exercise great restraint in intervening
at this early stage of the process. Under the contemporary Canadian law of
judicial review, questions that would have been considered jurisdictional under
Bell (1971) would not be so quickly labelled as such. Moreover, the
notion of “preliminary questions”, which permeates the reasoning in Bell
(1971), has long since been abandoned. Even more fundamentally,
contemporary courts would not so quickly accept that questions such as the one
dealt with in Bell (1971) can be answered by an abstract interpretive
exercise conducted without regard to the statutory context. Early judicial
intervention also risks depriving the reviewing court of a full record bearing
on the issue; allows for judicial imposition of a “correctness” standard with
respect to legal questions that, had they been decided by the tribunal, might
be entitled to deference; encourages an inefficient multiplicity of proceedings
in tribunals and courts; and may compromise carefully crafted, comprehensive
legislative regimes. Moreover, contemporary administrative law accords more
value to the considered opinion of the tribunal on legal questions, whether the
tribunal’s ruling is ultimately reviewable in the courts for correctness or
reasonableness.
Given the breadth of the
Commission’s discretion and the preliminary nature of its referral decision, a
reviewing court should intervene in such a decision only if there is no
reasonable basis in law or on the evidence to support it. This standard of
review ensures that the reviewing court gives due deference to both the
administrative decision and the administrative process. Whatever the ultimate
merit of the complaints in this case might be, the information before the
Commission provided it with a reasonable basis for referring the novel and
complex complaints to a board of inquiry. The report of the Commission’s
investigator, along with the surrounding circumstances, provided a reasonable
basis in law and on the evidence for the Commission’s decision and it made no
reviewable error.
Cases Cited
Overruled: Bell v.
Ontario Human Rights Commission, [1971] S.C.R. 756, rev’g R. v. Tarnopolsky, Ex parte
Bell, [1970] 2 O.R. 672; referred to: Cowan v. Aylward,
2002 NSCA 76, 205 N.S.R. (2d) 324; Green v. Human Rights Commission (N.S.),
2011 NSCA 47, 303 N.S.R. (2d) 211; Cooper v. Canada (Human Rights
Commission), [1996] 3 S.C.R. 854; Zündel v. Canada (Attorney General),
[1999] 4
F.C. 289, aff’d (2000), 195 D.L.R. (4th) 394; Bell Canada v.
Communications, Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113;
Syndicat des employés de production du
Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Losenno v. Ontario Human Rights Commission (2005), 78 O.R. (3d) 161; Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; R. v. Tottenham and
District Rent Tribunal, Ex parte Northfield (Highgate) Ltd., [1957] 1
Q.B. 103; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Chaulk,
[1990] 3 S.C.R. 1303; Canadian Union of Public Employees, Local 963 v. New
Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Canada (Canadian Human Rights Commission) v. Canada
(Attorney General), 2011 SCC 53, [2011] 3 S.C.R.
471; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; C.B.
Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332; Ontario
Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Irvine
v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; Canada
(Attorney General) v. Canada (Commission of Inquiry on the Blood System),
[1997] 3 S.C.R. 440; Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339; Violette v. New Brunswick Dental Society,
2004 NBCA 1, 267 N.B.R. (2d) 205; Air Canada v. Lorenz, [2000] 1 F.C. 494; Szczecka v. Canada (Minister of Employment and Immigration) (1993), 170 N.R. 58;
Psychologist Y v. Board of Examiners in Psychology, 2005 NSCA 116, 236
N.S.R. (2d) 273; Potter v. Nova Scotia Securities Commission, 2006 NSCA 45, 246 N.S.R. (2d) 1;
Vancouver (City) v. British Columbia (Assessment Appeal Board) (1996),
135 D.L.R. (4th) 48; Mondesir v. Manitoba Assn. of Optometrists (1998),
163 D.L.R. (4th) 703; U.F.C.W., Local 1400 v. Wal‑Mart Canada Corp.,
2010 SKCA 89, 321 D.L.R. (4th) 397; Council of Canadians with Disabilities
v. VIA Rail Canada Inc., 2007
SCC 15, [2007] 1 S.C.R. 650; Alberta (Information and Privacy
Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011]
3 S.C.R. 654; Catalyst Paper Corp. v. North Cowichan (District),
2012 SCC 2, [2012] 1 S.C.R. 5; Canada (National Research Council) v. Zhou,
2009 FC
164 (CanLII).
Statutes and Regulations
Cited
Act to Amend Chapter 18 of the Acts of 1998, the Municipal
Government Act, S.N.S. 2006, c. 38, ss. 1,
2.
Boards of Inquiry Regulations, N.S. Reg.
221/91, s. 1.
Canadian Charter of Rights and Freedoms,
s. 15 .
Canadian Human Rights Act, R.S.C. 1985,
c. H‑6, s. 49(1) [am. 1998, c. 9, s. 27].
Education
Act, S.N.S. 1995‑96, c. 1, s. 76.
Establishment of Conseil scolaire acadien provincial, N.S. Reg. 38/2005.
Establishment of the Halifax Regional School Board, N.S. Reg. 40/2005.
Halifax Regional Municipality Act,
S.N.S. 1995, c. 3, s. 84.
Human Rights Act, R.S.N.S. 1989,
c. 214, ss. 5(1)(a), (q), 6(a), 29, 32A(1), 34(1), (7), (8), 36.
Municipal Government Act, S.N.S. 1998,
c. 18, ss. 530, 560.
Authors Cited
Brown, Donald J. M., and John M. Evans, with the
assistance of Christine E. Deacon. Judicial Review of Administrative
Action in Canada. Toronto: Canvasback, 1998 (loose‑leaf updated
August 2011).
Lemieux, Pierre. Droit administratif: Doctrine et jurisprudence,
5e éd. Sherbrooke: Revue de droit Université de Sherbrooke, 2011.
Mullan, David J. Administrative Law. Toronto: Irwin Law, 2001.
Mullan,
David J. Administrative Law, 3rd ed. Scarborough, Ont.: Carswell, 1996.
APPEAL from a judgment of the Nova
Scotia Court of Appeal (MacDonald C.J.N.S. and Oland and
Hamilton JJ.A.), 2010 NSCA 8, 287 N.S.R. (2d) 329, 912
A.P.R. 329, 66 M.P.L.R. (4th) 19, 8 Admin. L.R. (5th) 274, [2010] N.S.J. No. 54
(QL), 2010 CarswellNS 75, reversing a decision of Boudreau J., 2009 NSSC 12, 273 N.S.R. (2d) 258, 872
A.P.R. 258, 184 C.R.R. (2d) 295, 55 M.P.L.R. (4th) 69, 66 C.H.R.R. D/1, [2009]
N.S.J. No. 13 (QL), 2009 CarswellNS 13. Appeal dismissed.
Randolph
Kinghorne and Karen L. Brown, for
the appellant.
John
P. Merrick, Q.C., and Kelly L. Buffett, for
the respondent the Nova Scotia Human Rights Commission.
Michel
Doucet, Mark C.
Power and Jean‑Pierre Hachey, for
the respondent Lucien Comeau.
Edward
A. Gores, Q.C., for
the respondent Her Majesty the Queen in Right of the Province of Nova Scotia.
No one appeared for the respondent
Lynn Connors.
Philippe
Dufresne, for the intervener the Canadian Human Rights
Commission.
The
judgment of the Court was delivered by
Cromwell J. —
I. Introduction
[1]
The Nova Scotia Human Rights Commission (the
“Commission”) enforces and administers the Human Rights Act,
R.S.N.S. 1989, c. 214 (the “Act”), and the Act gives the Commission
considerable discretion as to how it carries out that mandate. When there is a
complaint that the Act has been violated and the Commission is satisfied that
an inquiry is warranted in all of the circumstances, it may set up a board of
inquiry to look into the matter. When the Commission sets up a board of inquiry,
what is the role of a court that is asked to review that decision?
[2]
This question arises out of the Commission’s
decision to refer Lucien Comeau’s complaints of discrimination to a board of
inquiry. On judicial review, a Nova Scotia Supreme Court judge set aside that
decision and prohibited the board from proceeding (2009 NSSC 12, 273 N.S.R.
(2d) 258). The Nova Scotia Court of Appeal reversed and cleared the way for
the board of inquiry to go ahead (2010 NSCA 8, 287 N.S.R. (2d) 329). The
difference between the two courts concerned the proper scope of judicial review
of the Commission’s decision. The appeal to this Court raises two main
questions.
[3]
The first concerns the standard of judicial
review of the Commission’s decision to refer the complaint to a board of
inquiry. My view is that, given the breadth of the Commission’s discretion and
the preliminary nature of its decision, a reviewing court should intervene only
if there is no reasonable basis in law or on the evidence to support the
Commission’s decision. The second question is whether, applying that standard
of judicial review, the Commission made any reviewable error in appointing the
board of inquiry. In my opinion, there was a reasonable basis in law and on
the evidence for the Commission’s decision here and it made no reviewable
error.
[4]
I therefore agree with the Court of Appeal that
the Commission’s decision should be upheld and I would dismiss the appeal.
II. Overview of Facts and Proceedings
A. Facts
[5]
Lucien Comeau complained to the Nova Scotia
Human Rights Commission that the funding arrangements for the French-first-language
schools in Halifax discriminated against him and his children on the basis of
their Acadian ethnic origin. In order to understand the complaint, some
background about school funding in Nova Scotia is required.
[6]
In the mid-1990s, Nova
Scotia created the Halifax Regional Municipality
(“Halifax”) by amalgamating the cities of Halifax and Dartmouth, the Town of
Bedford and the County of Halifax: the Halifax Regional Municipality Act,
S.N.S. 1995, c. 3, repealed by the Municipal Government Act, S.N.S.
1998, c. 18, s. 560 (“MGA”). Later, their school boards were similarly
amalgamated, forming the Halifax Regional School Board: the Establishment of
the Halifax Regional School Board, N.S. Reg. 40/2005. Before
amalgamation, the cities of Halifax and Dartmouth provided supplementary
funding to their respective school boards. (Provincial law allowed other
municipalities to do the same, but no others did.) After amalgamation, Halifax
was required by statute to maintain supplementary funding to the schools that
had received funding from the former cities of Halifax and Dartmouth: the Halifax
Regional Municipality Act, s. 84, and, after its repeal, the MGA, s.
530. Halifax raised this supplementary funding through taxation and then
provided the funds to the relevant school boards — the Halifax and
Dartmouth District School Boards at first, and then the Halifax Regional School
Board after the school boards’ amalgamation. (Some additional funds were also
raised and distributed in parts of Halifax other than in the former cities.)
[7]
At around the same time as the amalgamation, the
Province created the Conseil scolaire acadien provincial (“Conseil”), a
province-wide public school board that administers French-first-language
schools: the Education Act, S.N.S. 1995-96, c. 1; the Establishment
of Conseil scolaire acadien provincial, N.S. Reg. 38/2005. The Conseil’s
funding came entirely from the Province and, in this respect, it differed from
other Nova Scotia school boards, which also receive funding from the municipalities
they serve.
[8]
Conseil schools did not receive the supplemental
funding from Halifax that was given to other public schools in the two former cities.
Mr. Comeau took exception to this state of affairs. He is a francophone Acadian
parent who had children enrolled in l’École Bois-Joli, one of the three Conseil
schools in the former cities. He filed a complaint against Halifax with the
Commission in June 2003, and a similar complaint against the Province
(specifically, against Service Nova Scotia and Municipal Relations and the
Department of Education) in July 2004. (The Province made it clear in oral
argument that it does not seek reversal of the Court of Appeal’s decision,
meaning that the complaint against it is therefore no longer in issue.)
[9]
In his complaints, Mr. Comeau relied on ss.
5(1)(a) and (q) of the Act to allege discrimination in respect of the provision
of a service or facilities on the basis of ethnic origin. He also alleged
violation of his rights under s. 15 of the Canadian Charter of Rights and
Freedoms . The Commission appointed an investigator, who filed three
similar but separate reports on the complaints. In these reports, the
investigator suggested that Mr. Comeau’s complaints “would appear to establish
a prima facie case of discrimination” (A.R., at p. 136). It is worth
noting that while the MGA did not provide for supplementary funding to
Conseil schools, Halifax received a legal opinion that s. 76 of the Education
Act would allow it to provide such funding should it wish to do so.
[10]
The complaints were put on hold for a time as a
result of other litigation raising similar issues. In August 2004, five
parents of children in Conseil schools launched proceedings in the Supreme
Court of Nova Scotia. These parents contended that the funding scheme in s.
530 of the MGA violated the Charter , and asked for various
constitutional remedies. The Commission decided to defer Mr. Comeau’s two
complaints pending resolution of this Charter challenge. The Charter
challenge, though, was itself adjourned pending negotiations and proposed
legislative amendment. The Commission therefore reactivated the complaints
process, and, on November 3, 2006, requested the appointment of a board of
inquiry to deal with Mr. Comeau’s complaints. At the Commission’s request, the
Chief Judge of the Nova Scotia Provincial Court appointed such a board on
November 9, 2006.
[11]
Not long after, on November 23, 2006, an
amendment to the MGA received Royal Assent. This amendment provided for
supplementary funding for Conseil schools in Halifax, retroactive to April 1,
2006 (An Act to Amend Chapter 18 of the Acts of 1998, the Municipal
Government Act, S.N.S. 2006, c. 38, ss. 1 and 2). As a consequence of
this, the parties to the Charter challenge settled the matter and signed
a consent order dismissing the action.
B. Proceedings
(1) Supreme Court of Nova Scotia, 2009 NSSC 12, 273 N.S.R. (2d) 258
(Boudreau J.)
[12]
Halifax applied to the Supreme Court of Nova
Scotia for orders quashing the Commission’s decision to refer Mr. Comeau’s
complaint against it to a board of inquiry and prohibiting the board from
proceeding. The application was granted. The chambers judge was of the view
that, through the referral decision, the Commission had decided that the
complaint fell under the Act. This determination was, in his view, one
of jurisdiction subject to correctness review. The judge concluded that the
absence of jurisdiction was clear and there would be no benefit from a fuller
inquiry by the board. The judge considered but rejected the Commission’s
submission that the board of inquiry had the capacity to consider a
jurisdictional challenge and that the court should not intervene until the
board of inquiry had ruled on the question. Relying in part on this Court’s
decision in Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756 (“Bell (1971)”), he decided that
it was appropriate to intervene at this early stage and to prohibit the board
from embarking on a potentially long but ultimately fruitless proceeding.
(2) Nova Scotia Court of Appeal, 2010
NSCA 8, 287 N.S.R. (2d) 329 (MacDonald C.J.N.S. (Oland and Hamilton JJ.A.
concurring))
[13]
The Commission and Mr. Comeau successfully
appealed to the Nova Scotia Court of Appeal.
[14]
The Court of Appeal considered the
appropriateness of a superior court intervening “to stifle a Board of Inquiry
even before it begins” (para. 16). The court accepted that, in
appropriate circumstances, the courts have discretion to prohibit the work of
administrative bodies in mid-stream. However, the Court of Appeal referred to
cases commenting that this Court’s decision in Bell (1971) is of
doubtful ongoing authority and should not be applied too widely. The Court of
Appeal noted that Bell (1971) represents a “high watermark when it comes
to pre-emptively curtailing administrative decisions” (para. 18). When
courts are asked to prohibit the ongoing work of administrative bodies, they
should exercise restraint. The appropriate test for judicial intervention at
this early stage of the process is that the tribunal’s lack of jurisdiction to
deal with the matter is “clear and beyond doubt” (para. 22). This judicial
reluctance to interfere while the administrative process is unfolding is the
result of “significant deference” to the Commission’s broad mandate to
investigate complaints and to the Commission’s broad discretion to request the
appointment of a board of inquiry (paras. 24-29). Applying this approach, the
Court of Appeal found that the chambers judge had made two errors.
[15]
First, he had erroneously characterized Mr.
Comeau’s complaints as seeking only legislative reform. In fact, Mr. Comeau
had asked for, and the Commission had pointed to the possibility of, other
remedies which were not clearly and beyond doubt outside the Commission’s
mandate (paras. 32-33). Second, the chambers judge had misapprehended the
nature of the Commission’s decision. All the Commission had done was to refer
the complaint to a board of inquiry; the Commission had not decided any issue
on its merits. These remained for the board of inquiry to address. Both of
these errors represented “palpable and overriding errors of fact” on the part
of the chambers judge, while his failure to accord deference to the
Commission’s decision represented an error of law (paras. 33 and 36 (emphasis
deleted); see also para. 37).
[16]
In the Court of Appeal’s view, it was not clear
and beyond doubt that the complaint was outside the board’s jurisdiction and
the chambers judge had consequently been wrong to intervene. The court allowed
the appeal and reinstated the appointment of the board of inquiry.
III. Analysis
A. The Applicable Standard of Review
[17]
The resolution of two issues separated the
chambers judge and the Court of Appeal in their understanding of the role of
the reviewing court in this case. The first relates to the applicable standard
of judicial review. This turns mainly on the nature of the Commission’s
decision. My view is that the Commission’s decision was not a determination of
its jurisdiction but rather a discretionary decision that an inquiry was
warranted in all of the circumstances. That discretionary decision should be
reviewed for reasonableness. The second issue raises the related question of
when judicial intervention is justified at this preliminary stage of the
Commission’s work. This turns mainly on the ongoing authority of this Court’s
decision in Bell (1971). In my view, Bell (1971) should
no longer be followed and courts should exercise great restraint in intervening
at this early stage of the process. Further, the reasonableness standard of
review, applied in the context of proposed judicial intervention at this
preliminary stage of the Commission’s work, may be expressed as follows: is
there a reasonable basis in law or on the evidence for the Commission’s
conclusion that an inquiry is warranted? Applying that test here, the
Commission’s decision should have been allowed to stand.
(1) The Nature of the Commission’s
Decision
[18]
The chambers judge applied the correctness
standard of review because he thought that the Commission had made a
determination that “the complaint fell under the [Act] and
therefore under its jurisdiction” (para. 53). The Court of Appeal disagreed
with this characterization of the Commission’s decision. Rather than making a
decision about its jurisdiction, the Commission had “simply decided to advance
the complaint to the next level by establishing an independent Board of
Inquiry” (para. 35).
[19]
I respectfully agree with the Court of Appeal.
The Commission’s decision to refer a complaint to a board of inquiry is not a
determination of whether the complaint falls within the Act. Rather, within
the scheme of the Act, the Commission plays an initial screening and
administrative role; it may, for example, decide to refer a complaint to a
board of inquiry so that the board can resolve a jurisdictional matter.
[20]
The Act sets up a complete regime for the
resolution of human rights complaints. Within this regime, the Commission
performs a number of functions related to the enforcement and promotion of
human rights. With regard to complaints, it acts as a kind of gatekeeper and
administrator. Under s. 29 as it read at the relevant time, the Commission was
required to “instruct the Director [of Human Rights] or some other officer to
inquire into and endeavour to effect a settlement” of a complaint, provided
that the complaint is in writing in the prescribed form or that the Commission
“has reasonable grounds for believing that a complaint exists”.
[21]
Where a complaint is not settled or otherwise
determined, the Commission may appoint a board of inquiry
to inquire into it (s. 32A(1)). The Commission has
a broad discretion as to whether or not to take this step. The Commission may
do so if it “is satisfied that, having regard to all circumstances of the
complaint, an inquiry thereinto is warranted” (Boards of Inquiry Regulations,
N.S. Reg. 221/91, s. 1). There is no
legislative requirement that the Commission determine that the matter is within
its jurisdiction or that it passes some merit threshold before appointing a board of inquiry;
the Commission must simply be
“satisfied” having regard to all the circumstances of the complaint that an
inquiry is warranted.
[22]
Once appointed, a board of inquiry conducts
a public hearing into the complaint and decides the matter. The board of
inquiry has the authority to determine any question of fact or law required to
make a determination on whether there has been a contravention of the Act, and
has the power to remedy such contravention (ss. 34(1), (7) and (8)). There is
an appeal to the Court of Appeal from a decision of the board of inquiry on
questions of law (s. 36).
[23]
What is important here is that a decision to
refer a complaint to a board of inquiry is not a determination that the complaint
is well founded or even within the purview of the Act. Those determinations
may be made by the board of inquiry. In deciding to refer a complaint to a
board of inquiry, the Commission’s function is one of screening and
administration, not of adjudication.
[24]
The nature of this role has been recognized in
the Nova Scotia case law and in the case law which has developed in relation to
the similarly worded provisions of the Canadian Human Rights Act,
R.S.C. 1985, c. H-6 : see Cowan v. Aylward, 2002 NSCA 76, 205 N.S.R.
(2d) 324, at para. 40; Green
v. Human Rights Commission (N.S.), 2011 NSCA 47, 303 N.S.R. (2d) 211, at paras. 35-36; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R.
854, at para. 53; Zündel v. Canada (Attorney General), [1999] 4 F.C. 289
(T.D.), at para. 20 (“Zündel (1999)”), aff’d (2000), 195 D.L.R. (4th)
394 (F.C.A.) (“Zündel (2000)”); and Bell Canada v. Communications,
Energy and Paperworkers Union of Canada, [1999] 1 F.C. 113 (“Bell (1999)”),
at paras. 35-37. While there is some limited assessment of the merits inherent
in this screening and administrative role, the Commission is not making any
final determination about the complaint’s ultimate success or failure: see,
e.g., Cooper, at para. 53; and Syndicat des
employés de production du Québec et de l’Acadie v. Canada (Canadian Human
Rights Commission), [1989] 2 S.C.R. 879, at p. 899.
[25]
Moreover, the Commission’s referral decision is
a discretionary one. Subsection 32A(1) of the Act provides that the Commission
“may” appoint a board. Section 1 of the Boards of Inquiry Regulations
expands on this permissive language, stating that the Commission “may” appoint a board
“if the Commission is
satisfied that, having regard to all circumstances of the complaint, an inquiry
thereinto is warranted” (see Green, at para. 5). It is up to the Commission to perform an
initial investigation of a complaint and decide whether or not an inquiry is
warranted in all of the circumstances.
[26]
Having regard to the statutory scheme and the Commission’s role in it, I
agree with the Court of Appeal that the chambers judge erred in his
characterization of the decision to appoint a board of inquiry. The
Commission’s referral decision did not involve the sort of determinations that
the chambers judge thought it did. Instead, the Commission’s function was
simply one of exercising its statutory discretion to decide whether it was
satisfied that, having regard to all of the circumstances of the complaint, an
inquiry by a board of inquiry was warranted, a function “more administrative
than judicial in nature”: Losenno v. Ontario Human Rights
Commission (2005), 78 O.R. (3d) 161 (C.A.), at para. 15.
[27]
Discretionary decisions
by administrative tribunals, such as the Commission’s referral decision in
issue here, are normally subject to judicial review on a reasonableness
standard: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, at para. 53. Halifax, however, relies on the decision of this Court in Bell
(1971) for the proposition that neat and discrete points of law on which
referral decisions rely are reviewed for correctness by the courts and that
such review may occur before the administrative tribunal itself has addressed
the issue. The continuing authority of Bell (1971) was the second point
on which the chambers judge and the Court of Appeal disagreed and I turn to it
now.
(2) Bell (1971)
[28]
In Bell (1971),
Mr. McKay, a black man from Jamaica, complained to the Ontario Human Rights
Commission alleging discrimination on the basis of race, colour and place of
origin by being refused rental of living accommodations contrary to the Ontario
Human Rights Code, 1961-62, S.O. 1961-62, c. 93, s. 3, as amended by
S.O. 1967, c. 66, s. 1. The Code contained anti-discrimination
provisions with respect to refusal of “occupancy of any . . . self-contained
dwelling unit” (s. 3). The Commission referred the complaint to a board of
inquiry whose role was to investigate the matter, determine whether it was
supported by the evidence and, if so, recommend a course of action to the
Commission. At the outset of the hearing before the board of inquiry, the
respondent to the complaint asked that it be dismissed for lack of
jurisdiction, contending that the accommodation in question was not a
“self-contained dwelling unit” and thus did not fall within the purview of the Code.
The board refused to make the finding that the premises were not a
self-contained dwelling unit because, at that stage of the proceedings, there
was no way of knowing whether they were or not.
[29]
The respondent then
applied to the Supreme Court of Ontario for an order prohibiting the board from
proceeding and filed affidavit evidence supporting his contention that the
premises were not self-contained. The judge hearing the application found that
the premises were not a self-contained dwelling unit and prohibited the board
from proceeding with the inquiry. The Court of Appeal reversed on the ground
that the judicial intervention by way of prohibition had been premature. As
Laskin J.A., as he then was, put it on behalf of a unanimous five-member panel
of the Court of Appeal, “if no objection can be taken to the establishment or
constitution of the board of inquiry it is premature to seek to stall its
proceedings at their inception on the ground of an apprehended error of law . .
. which it is assumed the board will make”: sub nom. R. v.
Tarnopolsky, Ex parte Bell, [1970] 2 O.R. 672, at p. 679. On the
further appeal to this Court, the question was whether the respondent, who was
convinced that the complaint did not relate to a matter within the purview of
the Code, was precluded from having that issue determined by a court
until the board had done so (p. 769).
[30]
A majority of this Court answered the question
in the negative and restored the order of the judge at first instance
prohibiting the board from continuing with the inquiry. On the subject of
prematurity, Martland J., writing for the majority, quoted with approval from R.
v. Tottenham and District Rent Tribunal, Ex parte Northfield (Highgate) Ltd.,
[1957] 1 Q.B. 103. There, Lord Goddard C.J. had addressed the question of when
it was appropriate for a court to grant prohibition in an ongoing
administrative proceeding on the basis of a point the tribunal had not yet
considered. He stated that
it
would be impossible and not at all desirable to lay down any definite rule as
to when a person is to go to the tribunal or come here for prohibition where
the objection is that the tribunal has no jurisdiction. . . . For myself, I
would say that where there is a clear question of law not depending upon
particular facts . . . there is no reason why the applicants should not
come direct to this court for prohibition rather than wait to see if the
decision goes against them . . . . [Emphasis added; p. 108.]
[31]
Relying on this passage, the Court rejected the
position adopted by the Court of Appeal that the application for prohibition
had been premature. Martland J. noted that the facts about the nature of
the premises related only to the structure of the building and did not involve
choosing between the conflicting testimonies of witnesses. He took the view
that the judge to whom the application for prohibition was made had discretion
to grant it or not. However, he had not erred in intervening in this case. The
board of inquiry had “no power to deal with alleged discrimination in matters
not within the purview of the Act” and the respondent “was not compelled to
await the decision of the board on that issue before seeking to have it
determined in a court of law. . .” (p. 775). (I should add that the Court was
concerned that there might not be any effective judicial review after the board
completed its work: see p. 769.)
[32]
In the case before us,
the chambers judge relied on Bell (1971) in deciding that it was appropriate
to deal with “the question of the Commission’s jurisdiction” at a preliminary
stage — indeed, before there had been any determination of whether the
complaints fell within the purview of the Act (para. 48). He was of the
view that there would be no benefit obtained from “a fuller or expanded factual
background . . . in order to adjudicate and decide the application and issues”
raised in the prohibition proceedings (para. 48). The Court of Appeal, for its
part, noted that courts should take a restrained approach to “pre-emptively
curtailing” administrative decisions (para. 18). After referring to cases that
cautioned against giving Bell (1971) too broad a reading and even
questioning its ongoing authority, the Court of Appeal stated that “a tribunal’s
work should not be prohibited unless its lack of jurisdiction is ‘clear and
beyond doubt’” (para. 22). Applying that test, the Court of Appeal concluded
that the board’s lack of jurisdiction was not “clear and beyond doubt” and that
the chambers judge should not have prohibited it from conducting its inquiry (para.
34).
[33]
I accept Bell
(1971) to the extent that it stands for the proposition that referral decisions
such as the one at issue in this case are subject to
judicial review. However, I consider that, beyond that, Bell (1971)
should no longer be relied on. Subsequent developments in Canadian
administrative law have undermined the validity of this precedent to the point
that there are compelling reasons for no longer following it: see R. v.
Bernard, [1988] 2 S.C.R. 833, at pp. 849-50 and 855-58; R. v. Chaulk,
[1990] 3 S.C.R. 1303, at p. 1353.
[34]
There are two aspects of Bell (1971) to
be considered. One is its holding that whether the premises were
“self-contained” was a preliminary jurisdictional question on which the courts
owed no deference to the views of the tribunal and with respect to which there
was no point in waiting for the tribunal’s decision. Martland J. noted
that whether the dwelling was self-contained concerned “an issue of law
respecting the scope of the operation of the Act, and on the answer to that
question depends the authority of the board to inquire into the complaint of
discrimination at all . . . and a wrong decision on it would not enable the
board to proceed further” (p. 775 (emphasis added)). However, under
the contemporary Canadian law of judicial review, the question of whether a
residence is “self-contained” would not be so quickly labelled as a
jurisdictional question on which
the courts are entitled to substitute their opinion for that of the board of
inquiry: see Zündel (1999), at paras. 44-45; and, more generally, Canadian
Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979]
2 S.C.R. 227, at p. 233; Dunsmuir, at para. 59; and Canada
(Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC
53, [2011] 3 S.C.R. 471, at para. 18.
Moreover, the whole notion of “preliminary questions”, which permeates the
reasoning in Bell (1971), has long since been abandoned: see, e.g., U.E.S.,
Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at pp. 1083-90; Dunsmuir,
at paras. 35-36 and 59; C.B.
Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, at paras. 39-45; D. J. M. Brown
and J. M. Evans, with the assistance of C. E. Deacon, Judicial Review of
Administrative Action in Canada (loose-leaf), at para. 3:4400; and D. J. Mullan,
Administrative Law (2001), at pp. 57-58 and 61-65. Even more
fundamentally, contemporary courts would not so quickly accept that the
question of whether a property is “self-contained” could be answered by the
abstract interpretive exercise undertaken in Bell (1971), conducted
without regard to the provision’s context within a specialized,
quasi-constitutional human rights regime: Ontario Human Rights Commission v.
Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at pp. 546-47; Canada (Canadian Human Rights Commission)
v. Canada (Attorney General), at para. 33; and Mullan (2001), at
p. 58.
[35]
The second aspect of Bell (1971) is its
approach to judicial intervention on grounds which have not been considered by
the tribunal or before an administrative process has run its course.
Since Bell (1971), courts, while recognizing that they have a discretion
to intervene, have shown restraint in doing so: see, e.g., the authorities
reviewed in C.B. Powell, at paras. 30-33; Irvine v. Canada
(Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at
p. 235; Canada (Attorney General) v. Canada (Commission of Inquiry on
the Blood System), [1997] 3 S.C.R. 440, at paras. 60 and 72; Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339,
at para. 51; Violette v. New Brunswick Dental Society, 2004 NBCA 1, 267
N.B.R. (2d) 205, at para. 14; and Air Canada v. Lorenz, [2000] 1 F.C.
494 (T.D.), at paras. 13-15.
[36]
While such intervention may sometimes be
appropriate, there are sound practical and theoretical reasons for restraint: D.
J. Mullan, Administrative Law (3rd ed. 1996), at §540; P. Lemieux, Droit administratif:
Doctrine et jurisprudence (5th ed. 2011), at pp. 371-72.
Early judicial intervention risks depriving the reviewing court of a full
record bearing on the issue; allows for judicial imposition of a “correctness”
standard with respect to legal
questions that, had they been decided by the tribunal, might be entitled to
deference; encourages an inefficient multiplicity of proceedings in tribunals
and courts; and may compromise carefully crafted, comprehensive legislative
regimes: see, e.g., Szczecka v. Canada (Minister of Employment
and Immigration) (1993), 170 N.R. 58 (F.C.A.), at
paras. 3-4; Zündel (1999), at para. 45; Psychologist Y v. Board of Examiners in Psychology, 2005 NSCA 116, 236 N.S.R. (2d) 273, at paras. 23-25; Potter v. Nova Scotia Securities
Commission, 2006 NSCA 45, 246 N.S.R. (2d) 1, at paras. 16 and 36-37; Vancouver
(City) v. British Columbia (Assessment Appeal Board) (1996), 135 D.L.R.
(4th) 48 (B.C.C.A.), at paras. 26-27; Mondesir v. Manitoba Assn. of
Optometrists (1998), 163 D.L.R. (4th) 703 (Man. C.A.), at paras.
34-36; U.F.C.W., Local 1400 v. Wal-Mart Canada Corp., 2010 SKCA
89, 321 D.L.R. (4th) 397, at paras. 20-23; Mullan (2001), at p. 58; Brown
and Evans, at paras. 1:2240, 3:4100 and 3:4400. Thus, reviewing courts now
show more restraint in short-circuiting the decision-making role of the
tribunal, particularly when asked to review a preliminary screening decision
such as that at issue in Bell (1971).
[37]
Moreover, contemporary administrative law
accords more value to the considered opinion of the tribunal on legal
questions, whether the tribunal’s ruling is ultimately reviewable in the courts
for correctness or reasonableness: Council of Canadians with Disabilities
v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 89; Alberta
(Information and Privacy Commissioner) v. Alberta Teachers’
Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 25; C.B. Powell, at para. 32; and Brown and Evans,
at para. 3:4400.
[38]
For these reasons, Bell (1971) should no longer be followed in relation to its
approach to preliminary jurisdictional questions or when judicial intervention is
justified in an ongoing administrative process.
[39]
How, then, should the chambers judge have
approached Halifax’s application for prohibition?
[40]
First, he ought to have applied the standard of
reasonableness to the Commission’s decision to refer the complaint to a board
of inquiry. He should not have asked whether the Commission had correctly
determined that the complaint was within the purview of the Act, but whether
the Commission had reasonably concluded that, having regard to all the circumstances,
an inquiry was warranted.
[41]
Second, the chambers judge should have exercised
restraint in intervening to prohibit a determination by the board of inquiry as
to whether the complaints fell within the purview of the Act. With the
benefit of hindsight, we can see that the risks of this course of action
resulting in an inefficient multiplicity of proceedings and delay materialized
here — and in a dramatic fashion. Nearly nine years and three levels of court
proceedings after Mr. Comeau filed his complaints, this proceeding has only
reached the end of the beginning. Only now can the board of inquiry appointed
in November 2006 finally begin to address the substance of Mr. Comeau’s
complaints and the objections by Halifax and the province to them.
(3) Applying the Standard of Review to
the Commission’s Screening Decision
[42]
As we have seen, there are two aspects of the
jurisprudence about judicial review of screening decisions sought in the midst
of an ongoing administrative tribunal process. The first relates to the
applicable standard of review and is concerned mainly with the outcome of the
decision-making process. The standard of review ensures that the reviewing
court gives due deference to the administrative decision maker. The
second relates to the risks of premature intervention. The focus here is
mainly on the process and the concern for efficiency, the minimization of costs
and the preservation of the administrative scheme’s integrity. Of course, this
second aspect also resembles the first in its desire that courts should enjoy
the benefit of considered administrative decisions, and should pay deference to
those decisions where appropriate.
[43]
While these two aspects are well entrenched in
the jurisprudence, it is artificial to separate the analysis in this way in the
context of judicial review of a preliminary screening decision such as the one
in issue here. Where, as here, reasonableness is the applicable standard of
review, a more straightforward approach is to bring these two aspects together in
the application of the standard of review. The reviewing court’s approach must
reflect the appropriate level of judicial deference both to the substance of
the administrative tribunal’s decision and to its ongoing process.
[44]
Reasonableness as a standard of review reflects
the appropriate deference to the administrative decision maker. It recognizes
that certain questions that come before administrative tribunals do not lend
themselves to a single result; administrative decision makers have “a margin of
appreciation within the range of acceptable and rational solutions”: Dunsmuir,
at para. 47 (emphasis added). Reasonableness is a concept that must be applied
in the particular context under review. The range of acceptable and rational
solutions depends on the context of the particular type of decision making
involved and all relevant factors: Catalyst Paper Corp. v. North Cowichan
(District), 2012 SCC 2, [2012] 1 S.C.R. 5, at paras. 17-18 and 23. As was
said in Khosa, reasonableness is a single concept that “takes its
colour” from the particular context (para. 59). In this case, both the nature
of the Commission’s role in deciding to move to a board of inquiry and the
place of that decision in the Commission’s process are important aspects of
that context and must be taken into account in applying the reasonableness
standard.
[45]
In my view, the reviewing court should ask
whether there was any reasonable basis on the law or the evidence for the
Commission’s decision to refer the complaint to a board of inquiry. This
formulation seems to me to bring together the two aspects of the jurisprudence
to ensure that both the decision and the process are treated with appropriate
judicial deference.
[46]
There is precedent for taking this approach.
Particularly helpful is the decision of Evans J. (as he then was) in Zündel (1999).
While this is a pre-Dunsmuir decision, the approach is completely
consistent with that set out by the Court in that case. Zündel (1999) concerned an application for judicial review of the Canadian
Human Rights Commission’s decision to request the appointment of a Human Rights
Tribunal to inquire into certain complaints made to the Commission. While the
legislative scheme in issue in Zündel (1999) was not identical to that in the Nova Scotia Act, the power of the
Canadian Human Rights Commission to request the appointment of a Tribunal is
conferred in words virtually identical to those in the Nova Scotia Boards of
Inquiry Regulations. The federal Commission, at any stage after the
filing of a complaint, “may request the Chairperson of the Tribunal to
institute an inquiry into the complaint if the Commission is satisfied that,
having regard to all the circumstances of the complaint, an inquiry is
warranted” (s. 49(1) of the Canadian Human Rights Act , as amended by
S.C. 1998, c. 9, s. 27). Evans J. held that he should only intervene to
prohibit continuation of the inquiry if satisfied that “there [was] no rational
basis in law or on the evidence to support the Commission’s decision that an
inquiry by a Tribunal is warranted in all the circumstances of the complaints” (para.
49).
[47]
While I would use the word “reasonable” rather
than “rational”, I do not think there is any difference in substance between
the two formulations. As the Court said in Dunsmuir, a result reached
by an administrative tribunal is reasonable where it can be “rationally
supported” (para. 41).
[48]
In my view, this formulation is an appropriate
way to reflect, in the context of the Nova Scotia statutory scheme, both the
appropriate standard of review and the judicial reluctance to intervene in
relation to the Commission’s decision to refer a complaint to a board of
inquiry. I reach this conclusion for several reasons.
[49]
First, this threshold for judicial intervention
is firmly tied to the reasonableness standard of judicial review. In the
context of the broad discretion given to the Commission to refer a complaint
for inquiry, reasonableness review must focus primarily on whether there is any
basis in reason for such an inquiry. The test of any reasonable basis on the
law or the evidence seems to me to appropriately reflect this requirement.
[50]
Second, this formulation, in my view, is well
adapted to the particular role which the legislation gives to the Commission, a
role which has been described by this Court as “an administrative and
screening” role (Cooper, at p. 893). While no doubt the
Commission, in deciding to refer for inquiry, has some quite limited role to
screen the merits of the complaint, its task is not to decide the issues which
underlie its decision to proceed to the next stage; these are left to the board
of inquiry (Zündel (2000), at para. 4). By not focussing solely on the merits of the
complaint, the formulation I propose recognizes that the Commission might
decide to appoint a board of inquiry in order to allow the board, after a full
hearing, to decide a jurisdictional or other important legal point. This would
provide a reasonable basis for the Commission’s decision.
[51]
Third, this formulation reflects the appropriate
deference to the Commission’s process. Just as reasonableness requires
appropriate deference to a tribunal’s decision, it also implies appropriate
deference to its processes of decision-making. The proposed formulation makes
it clear that reviewing courts should be reluctant to intervene before a board
of inquiry has addressed the substance of the points with respect to which the
application for judicial review is brought. A reviewing court should take into
account the benefit of having the board’s considered view of the point raised
on review as well as the risks of an unnecessary multiplication of issues and
delay as was caused by premature judicial intervention in this case. Only
where there is no reasonable basis in law or on the evidence to support the Commission’s
decision that an inquiry by a board of inquiry is warranted in all the
circumstances would it be appropriate to overcome judicial reluctance to
intervene.
[52]
Finally, this approach is consistent not only
with case law on judicial review of decisions to refer complaints for
adjudication, but also with the modern law concerning the discretion in
relation to intervening by way of judicial review in ongoing administrative
proceedings. As to the former, I refer for example not only to Zündel (1999), but also to other
cases in the federal courts in relation to the similarly worded powers of the
Canadian Human Rights Commission to request referral of complaints to the Human
Rights Tribunal: see, e.g., Bell (1999); and Canada (National Research Council)
v. Zhou, 2009 FC 164 (CanLII). As to the latter, I refer to decisions such
as Lorenz, Psychologist Y, C.B. Powell, and the other
cases and texts to which I referred earlier in my reasons on this point.
[53]
I conclude that in reviewing the Commission’s
decision to request appointment of a board of inquiry to inquire into these
complaints, the reviewing court should ask itself whether there is any
reasonable basis in law or on the evidence to support that decision.
B. Did the Commission Make a Reviewable Error?
[54]
I agree with the Court of Appeal that the
Commission’s referral decision should not be disturbed. While Mr. Comeau’s
complaint faces some challenging legal hurdles, my view is that there was a
reasonable basis, provided primarily by the novelty and complexity of the
complaints, for the Commission to be satisfied that an inquiry was warranted in
all of the circumstances. It is not our role to opine on the merits or
otherwise of the complaint, but I will briefly explain why I think that the
Commission’s referral decision meets this standard.
[55]
Mr. Comeau alleged that Halifax had “treated,
and continue[d] to treat, [him] and [his] children differentially on account of
[their] ethnic origin (Acadian) by levying the supplementary tax . . . and by
not providing any of the funds generated by the supplementary tax to the [Conseil]” (A.R., at p. 119). Mr. Comeau
contended that this differential treatment violated ss. 5(1)(a) and (q) of the Act. (He also contended
that it violated his s. 15 Charter rights, but the Commission has made
clear that it does not intend to pursue this aspect of his claim.)
[56]
In this appeal, Halifax
presents a number of arguments as to why the Commission erred in deciding to
refer Mr. Comeau’s complaint to a board of inquiry. It argues that the funding
regime was not arbitrary or discriminatory; that at the relevant time Nova
Scotia municipal bodies lacked the statutory authority to provide supplementary
funding to the Conseil; that the amendments to the MGA have rendered Mr.
Comeau’s complaint moot or res judicata; that language is not a
protected characteristic under the Act because it does not fall under s.
5(1)(q)’s reference to ethnic origin; and that s. 6(a) of the Act, which
shields “the provision of or access to services or facilities [and] the
conferring of a benefit on or the providing of a protection to youth or senior
citizens” from scrutiny under the Act, exempts school funding from the Act’s
purview.
[57]
The Commission’s investigator addressed many of
these points in his reports. He was of the view that the funding situation
might have constituted differential treatment on the basis of ethnic origin,
and that this differential treatment might have prevented Conseil schools from
providing some services. On the basis of a legal opinion drafted by Halifax’s
municipal solicitor, the investigator also thought that Halifax might have had
the legal authority to correct the situation by providing supplementary funding
to Conseil schools (A.R., at pp. 130, 134 and 136). He considered that a
possible remedy could be requiring Halifax to provide such funding, perhaps
retroactively (A.R., at p. 133). (It is worth noting in this regard that
Mr. Comeau’s complaint covers a period that begins before the period
covered by the retroactive amendments to the MGA.) Moreover, the
investigator was of the view that the intent of s. 6(a) was to protect programs
for youth and seniors from complaints of age discrimination; the provision,
interpreted in this way, would not shield programs that benefit some young
people and not others in a discriminatory way (A.R., at p. 133).
[58]
With respect, Halifax’s submissions on Mr.
Comeau’s complaint, whatever their ultimate validity, are largely beside the
point in a judicial review of a referral decision such as the one before the
Court in this appeal. It is not this Court’s role to assess the complaint.
This Court’s role is limited to assessing the Commission’s decision to refer
the complaint to a board of inquiry. In making its referral decision, the
Commission had the investigator’s reports before it. Without expressing any
opinion on the merits of Mr. Comeau’s complaint, I am of the view that these
reports, along with the surrounding circumstances, provided a reasonable basis
for the Commission to refer Mr. Comeau’s novel and complex complaints to a
board of inquiry which, of course, would be entitled, among other things, to
enter into a detailed consideration of the merits of Halifax’s objections.
[59]
I conclude that, whatever the ultimate merit of
Mr. Comeau’s novel and complex complaints might be, the Commission had a
reasonable basis for concluding that an inquiry before a board of inquiry was
warranted in all of the circumstances.
IV. Disposition
[60]
I would dismiss the appeal, with costs to both
the Commission and Mr. Comeau.
Appeal dismissed with costs.
Solicitor for the
appellant: Halifax Regional Municipality, Halifax.
Solicitors for the respondent the
Nova Scotia Human Rights Commission: Merrick Jamieson Sterns
Washington & Mahody, Halifax.
Solicitor for the respondent Lucien
Comeau: Université de Moncton, Moncton.
Solicitor for the
respondent Her Majesty the Queen in Right
of the Province of Nova Scotia: Attorney General of Nova
Scotia, Halifax.
Solicitor
for the intervener the Canadian Human Rights Commission: Canadian
Human Rights Commission, Ottawa.