Dichmont v. Newfoundland and Labrador (Minister of Government Services and Lands) et al., (2015) 361 Nfld. & P.E.I.R. 256 (NLTD(G))

• Judge: Faour, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: September 20, 2013
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 361 Nfld. & P.E.I.R. 256 (NLTD(G))

Dichmont v. Nfld. (2015), 361 Nfld. & P.E.I.R. 256 (NLTD(G));

    1122 A.P.R. 256

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. FE.013

Desiree A. Dichmont (applicant) v. Her Majesty the Queen in Right of Newfoundland and Labrador as represented by the Minister of Government Services and Lands (first respondent) and Newfoundland and Labrador Human Rights Commission (second respondent)

(201201G5863; 2015 NLTD(G) 14)

Indexed As: Dichmont v. Newfoundland and Labrador (Minister of Government Services and Lands) et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Faour, J.

February 9, 2015.

Summary:

Dichmont, for reasons of her religious convictions, resigned as a marriage commissioner when the Government of Newfoundland and Labrador insisted that same sex marriages had to be performed. She applied to the Human Rights Commission with a complaint of religious discrimination. The Commission dismissed the application without referring it to an adjudication panel for a full hearing. She applied for judicial review.

The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the application, set aside the Commission's decision and directed the Commission to refer the matter to a board of inquiry.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - Dichmont, for reasons of her religious convictions, resigned as a marriage commissioner when the Government of Newfoundland and Labrador insisted that same sex marriages had to be performed - She applied to the Human Rights Commission with a complaint of religious discrimination - The Commission dismissed the application without referring it to an adjudication panel for a full hearing - She applied for judicial review, asserting that the Commission's reasons were inadequate - The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the application - The Commission was authorized to dismiss a complaint without providing extensive reasons - The record, together with the decision, should provide sufficient rationale to permit a reviewing court to assess the rationale, and hence the reasonableness, of the decision - In this case, the reasons provided were inadequate and unresponsive to the issues raised - The lack of reasons in the decision could not be saved by the results of the investigation, as it drew no conclusions and made no recommendations - It merely repeated and summarized the positions of the parties - It did not provide a qualitative analysis of the government's assertion that no accommodation was possible - In that circumstance, the Commission was obligated to provide at least minimal reasons to show responsiveness to the submissions of the parties - See paragraphs 44 to 74.

Civil Rights - Topic 980.1

Discrimination - Duty to accommodate - General - [See second Civil Rights - Topic 7069.02 ].

Civil Rights - Topic 985

Discrimination - Employment - Duty to accommodate - [See second Civil Rights - Topic 7069.02 ].

Civil Rights - Topic 986

Discrimination - Employment - On basis of religion or creed - [See second Civil Rights - Topic 7069.02 ].

Civil Rights - Topic 7069.02

Federal or provincial legislation - Commissions or boards - Jurisdiction - Complaints - Decision to request board of inquiry - [See Administrative Law - Topic 549 ].

Civil Rights - Topic 7069.02

Federal or provincial legislation - Commissions or boards - Jurisdiction - Complaints - Decision to request board of inquiry - Dichmont, for reasons of her religious convictions, resigned as a marriage commissioner when the Government of Newfoundland and Labrador insisted that same sex marriages had to be performed - She applied to the Human Rights Commission with a complaint of religious discrimination - The Commission dismissed the application without referring it to an adjudication panel for a full hearing - She applied for judicial review - The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the application - The question of accommodation of the religious beliefs of marriage commissioners had not yet been resolved in this jurisdiction, nor, it appeared, in at least some other provinces, including Saskatchewan - It was reasonable to consider that further deliberation might be necessary before dismissing a complaint - In dismissing the complaint, the Commission precluded an opportunity for a board of inquiry to consider the question of discrimination and any accommodation options the government might propose - Further, the Commission failed to provide reasons - It had before it a prima facie allegation of religious discrimination which, if left unanswered made it unreasonable to dismiss the complaint rather than to refer to a hearing - Moreover, when presented with an assertion of the employer's obligation to accommodate those beliefs, it was unreasonable to dismiss the complaint without permitting a thorough hearing dealing with the reasonableness of possible methods of accommodation - The decision to dismiss, given the complaint and the submissions before it, was unreasonable, and should be quashed - See paragraphs 75 to 102.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - Dichmont, for reasons of her religious convictions, resigned as a marriage commissioner when the Government of Newfoundland and Labrador insisted that same sex marriages had to be performed - She applied to the Human Rights Commission with a complaint of religious discrimination - The Commission dismissed the application without referring it to an adjudication panel for a full hearing - She applied for judicial review - The Newfoundland and Labrador Supreme Court, Trial Division (General), agreed with the parties that the standard of "reasonableness" applied to a decision of the Commission at the screening stage - The court discussed the level of scrutiny required in a decision to dismiss a complaint at the screening level - See paragraphs 30 to 36.

Cases Noticed:

Tilley v. Law Society of Newfoundland and Labrador (2010), 303 Nfld. & P.E.I.R. 301; 941 A.P.R. 301; 2010 NLTD(G) 187, refd to. [para. 25].

Coady v. Human Rights Commission (Nfld. and Lab.) (2010), 293 Nfld. & P.E.I.R. 248; 906 A.P.R. 248; 2010 NLTD 21, refd to. [para. 27].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 30].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al., [2012] 1 S.C.R. 364; 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 31].

French v. Dalhousie University (2012), 323 N.S.R.(2d) 133; 1025 A.P.R. 133; 2012 NSSC 395, refd to. [para. 33].

French v. Human Rights Commission (N.S.) - see French v. Dalhousie University.

Keith v. Correctional Service of Canada (2012), 431 N.R. 121; 2012 FCA 117, refd to. [para. 33].

Burke v. Newfoundland and Labrador Association of Public and Private Employees et al. (2010), 294 Nfld. & P.E.I.R. 230; 908 A.P.R. 230; 2010 NLCA 12, refd to. [para. 35].

Francis v. Human Rights Commission (Nfld. and Lab.) et al. (2006), 253 Nfld. & P.E.I.R. 254; 759 A.P.R. 254; 2006 NLTD 5, refd to. [para. 52].

Francis v. CHC Composites Inc. - see Francis v. Human Rights Commission (Nfld. and Lab.) et al.

Hutchinson v. Canada (Minister of the Environment) (2003), 302 N.R. 66; 2003 FCA 133, refd to. [para. 56].

Jazairi v. Human Rights Commission (Ont.) et al. (1997), 99 O.A.C. 184; 1997 CarswellOnt 813 (Div. Ct.), refd to. [para. 57].

Grant v. Human Rights Commission (Nfld.) et al. (2003), 224 Nfld. & P.E.I.R. 225; 669 A.P.R. 225; 2003 NLCA 22, refd to. [para. 58].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1; 1996 CarswellNat 1693, refd to. [para. 59].

Spurrell v. Human Rights Commission (Nfld.) et al. (2003), 222 Nfld. & P.E.I.R. 290; 663 A.P.R. 290; 2003 NLSCTD 28, refd to. [para. 64].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193; 1999 CarswellNat 1124, refd to. [para. 65].

Stevens v. Human Rights Commission (Nfld. and Lab.) (2005), 250 Nfld. & P.E.I.R. 351; 746 A.P.R. 351; 2005 NLTD 153, refd to. [para. 67].

Hiscock v. Human Rights Commission (Nfld. and Lab.) et al. (2006), 262 Nfld. & P.E.I.R. 102; 794 A.P.R. 102; 2006 NLTD 172, refd to. [para. 68].

Hallingham v. Workers' Compensation Commission (Nfld.) (1997), 158 Nfld. & P.E.I.R. 21; 490 A.P.R. 21; 1997 CarswellNfld 234 (C.A.), refd to. [para. 68].

Kerr v. Bell Canada et al., [2007] F.T.R. Uned. 816; 2007 FC 1230, refd to. [para. 79].

Nichols v. Saskatchewan (2006), CHRR 06-887, refd to. [para. 87].

Bjerland v. Saskatchewan (2006), CHRR 06-888, refd to. [para. 87].

Goertzen v. Saskatchewan (2006), CHRR 06-889, refd to. [para. 87].

Nichols v. M.J. et al. (2009), 339 Sask.R. 35; 2009 SKQB 299, refd to. [para. 88].

Reference Re Marriage Act (2011), 366 Sask.R. 48; 506 W.A.C. 48; 2011 SKCA 3, refd to. [para. 97].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 103].

Taylor-Baptise v. Ontario Public Service Employees Union, 2013 HRTO 180, refd to. [para. 106].

Counsel:

Philip Fourie, Derek Nowak and Delina Warren, for the applicant;

David G. Rodgers, for the first respondent;

Carey S. Majid, for the second respondent.

This application was heard at St. John's, N.L., on September 20, 2013, by Faour, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on February 9, 2015.