Green v. Human Rights Commission (N.S.) et al., 2010 NSSC 242

• Judge: Bryson, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 12, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 NSSC 242;(2010), 292 N.S.R.(2d) 246 (SC)

Green v. HRC (2010), 292 N.S.R.(2d) 246 (SC);

    925 A.P.R. 246

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. JN.044

C. Elizabeth Green (applicant) v. The Commissioners of the Nova Scotia Human Rights Commission, The Nova Scotia Human Rights Commission, Mount Saint Vincent University and The Attorney General of Nova Scotia (respondents)

(Hfx No. 312121; 2010 NSSC 242)

Indexed As: Green v. Human Rights Commission (N.S.) et al.

Nova Scotia Supreme Court

Bryson, J.

June 22, 2010.

Summary:

Green had a form of dyslexia and attention deficit disorder which compromised her ability to respond adequately to examinations in a traditional setting. Mount Saint Vincent University made efforts to accommodate Green's disability with respect to the writing of examinations. Green felt that the University had not met its obligation to fully accommodate her and she filed a complaint of discrimination against the University. The Nova Scotia Human Rights Commission decided not to refer the complaint to a Board of Inquiry. Green applied for judicial review of the Commission's decision, arguing that the Commission's failure to provide reasons for its decision was unfair. Alternatively, Green argued that the Commission's decision was unreasonable.

The Nova Scotia Supreme Court dismissed the application.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - Green filed a complaint of discrimination against a university - The Nova Scotia Human Rights Commission decided not to refer the complaint to a Board of Inquiry - The Commission's letter of decision stated that "After a thorough review of the matter, the Commissioners decided that based on the evidence and the information contained in the investigation report, the complaint is without merit and is dismissed" - Green applied for judicial review of the Commission's decision, arguing that the Commission's failure to provide reasons for its decision was unfair - The Human Rights Act did not oblige the Commission to provide reasons for a decision declining to refer a matter to a Board of Inquiry - The Nova Scotia Supreme Court dismissed the application - Although the Commission's terse decision lacked elaboration, the extensive materials before the Commission, coupled with Green's intimate involvement in the development of those materials, obviated any procedural unfairness - It was a reasonable inference that the Commission preferred the argument of the University to that of Green - An absence of reasons did not frustrate judicial review where the record allowed the court to discern whether the decision was reasonable in all of the circumstances - See paragraphs 10 to 24.

Civil Rights - Topic 960.1

Discrimination - Mental or physical disability - General - [See Civil Rights - Topic 7069.02 ].

Civil Rights - Topic 980.1

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

Civil Rights - Topic 7046

Federal, provincial or territorial legislation - Commissions or boards - General - Duty of fairness - [See Administrative Law - Topic 549 ].

Civil Rights - Topic 7069.02

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Decision to request board of inquiry - Green had a form of dyslexia and attention deficit disorder which compromised her ability to respond adequately to examinations in a traditional setting - Mount Saint Vincent University made efforts to accommodate Green's disability, which included giving her an opportunity to rewrite her December 2006 examinations and extending certain accommodations to her with respect to the rewriting of her examinations - Green felt that the University had not met its obligation to fully accommodate her and she filed a complaint of discrimination against the University - The Nova Scotia Human Rights Commission decided not to refer the complaint to a Board of Inquiry - Green applied for judicial review of the Commission's decision - The Nova Scotia Supreme Court dismissed the application - The Commission's decision not to refer the complaint to a Board of Inquiry was not unreasonable - It was open to the Commission to conclude that the University's offer of accommodation for the re-write was appropriate and that Green's failure to accept it meant that the complaint lacked merit and should not advance to an inquiry - See paragraphs 25 to 43.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - [See Civil Rights - Topic 7069.02 ].

Cases Noticed:

Bowater Mersey Paper Co. v. Communications, Energy and Paperworkers Union of Canada, Local 141 (2010), 289 N.S.R.(2d) 351; 916 A.P.R. 351; 2010 NSCA 19, refd to. [para. 10].

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. 12].

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. 13].

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. 13].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 15].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 16].

Future Inns Canada Inc. v. Labour Relations Board (N.S.) et al. (1997), 160 N.S.R.(2d) 241; 473 A.P.R. 241; 1997 CanLII 9361 (C.A.), refd to. [para. 16].

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. 17].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 17].

Gardner v. Canada (Attorney General) (2005), 339 N.R. 91; 2005 FCA 284, refd to. [para. 18].

Johnstone v. Canada (Attorney General) (2007), 306 F.T.R. 271; 2007 FC 36, affd. (2008), 377 N.R. 235; 2008 FCA 101, refd to. [para. 21].

Coward v. Human Rights and Citizenship Commission (Alta.) (2008), 455 A.R. 177; 2008 ABQB 455, refd to. [para. 25].

A.J. v. Canada (Attorney General), [2008] F.T.R. Uned. 407; 2008 FC 591, refd to. [para. 25].

Chartrand v. Human Rights and Citizenship Commission (Alta.) et al. (2008), 444 A.R. 43; 2008 ABQB 207, refd to. [para. 25].

Archibald et al. v. Nova Scotia Utility and Review Board et al. (2010), 290 N.S.R.(2d) 158; 920 A.P.R. 158; 2010 NSCA 27, refd to. [para. 26].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al. (2010), 287 N.S.R.(2d) 329; 912 A.P.R. 329; 2010 NSCA 8, refd to. [para. 29].

Garnthum v. Canada (Attorney General) (1996), 30 C.H.R.R. D/152 (F.C.T.D.), refd to. [para. 30].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1; 27 C.H.R.R. D/173, refd to. [para. 32].

Rogers v. Council of Human Rights (B.C.) et al., [1993] B.C.T.C. Uned. 384; 21 C.H.R.R. D/67 (S.C.), refd to. [para. 33].

Lee v. British Columbia (Attorney General) et al. (2004), 204 B.C.A.C. 113; 333 W.A.C. 113; 50 C.H.R.R. D/295; 2004 BCCA 457, refd to. [para. 34].

Counsel:

Blair H. Mitchell, for the applicant;

Lisa Teryl, for the Nova Scotia Human Rights Commission;

Peter McLellan, Q.C., and Lisa M. Gallivan, for Mount Saint Vincent University.

This application was heard in Chambers on May 12, 2010, at Halifax, N.S., before Bryson, J., of the Nova Scotia Supreme Court, who delivered the following decision on June 22, 2010.