Human Rights Commission (N.S.) et al. v. Play It Again Sports Ltd. et al., (2004) 227 N.S.R.(2d) 292 (CA)

• Judge: Glube, C.J.N.S., Chipman and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 29, 2004
• Jurisdiction: Nova Scotia
• Citations: (2004), 227 N.S.R.(2d) 292 (CA);2004 NSCA 132

HRC v. Play It Again Sports Ltd. (2004), 227 N.S.R.(2d) 292 (CA);

 720 A.P.R. 292

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. NO.015

The Nova Scotia Human Rights Commission and Dorothy Kateri Moore (appellants) v. Play It Again Sports Ltd., Trevor Muller and Ronald Muller (respondents)

(CA 217567; 2004 NSCA 132)

Indexed As: Human Rights Commission (N.S.) et al. v. Play It Again Sports Ltd. et al.

Nova Scotia Court of Appeal

Glube, C.J.N.S., Chipman and Hamilton, JJ.A.

October 29, 2004.

Summary:

Moore was the only aboriginal employee of a retail sports store. She quit her employment following a discussion with her employer over poor customer service. Moore filed a complaint under the Human Rights Act of discrimination on account of race, submitting that she was subjected to a poisoned work environment due to racial harassment, particularly the use of the greeting "kemosabe", which was a greeting meaning "friend" used in the 1940's and 1950's television show The Lone Ranger. A board of inquiry dismissed the complaint. There was contradictory evidence as to whether "kemosabe" was a racial slur and, in any event, Moore's assertion that she considered the term an insult to her aboriginal origin, and was therefore exposed to a poisoned work environment, was not consistent with the probabilities surrounding the circumstances. Moore failed to satisfy the board that she was, in fact, offended. Moore appealed.

The Nova Scotia Court of Appeal dismissed the appeal. The board committed no error in reaching its conclusion.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - [See Civil Rights - Topic 989.1 ].

Civil Rights - Topic 989.1

Discrimination - Employment - On basis of nationality, race or ethnic origin - Moore was the only aboriginal employee at a retail store - Moore quit following a discussion concerning an incident of poor customer service - Moore filed a complaint under the Human Rights Act of discrimination on account of race, submitting that she was subjected to a poisoned work environment due to racial harassment, particularly the use of the greeting "kemosabe", which was a greeting meaning "friend" used in the 1940's and 1950's television show The Lone Ranger - A board of inquiry dismissed the complaint - The employer used the term generally without any intention to offend - There was contradictory evidence as to whether "kemosabe" was a racial slur - The term was not inherently offensive, but had the capacity to offend - Moore, if she was offended, did not make that known to her employer - In fact, the board found, on a balance of probabilities, that Moore was not, in fact, offended - There was no poisoned work environment - The Nova Scotia Court of Appeal dismissed Moore's appeal - The board committed no error in reaching its conclusion.

Civil Rights - Topic 1034

Discrimination - Race and national or ethnic origin - Indians - [See Civil Rights - Topic 989.1 ].

Civil Rights - Topic 7117

Federal, provincial or territorial legislation - Practice - Appeals - A board of inquiry dismissed a discrimination complaint made under the Human Rights Act - Section 36(1) of the Act provided an appeal from the decision of a board of inquiry on a question of law - The Nova Scotia Court of Appeal held that the standard of appellate review was "correctness" - See paragraph 47.

Cases Noticed:

Canadian Armed Forces v. Swan (1994), 25 C.H.R.R. D/312 (Can. Trib.), refd to. [para. 36].

Kaiser v. Multibond Inc. (2003), 219 N.S.R.(2d) 91; 692 A.P.R. 91 (C.A.), refd to. [para. 47].

Human Rights Commission (N.S.) v. Dural - see Kaiser v. Multibond Inc.

Toneguzzo-Norvell et al. v. Savein and Burnaby Hospital, [1994] 1 S.C.R. 114; 162 N.R. 161; 38 B.C.A.C. 193; 62 W.A.C. 193, refd to. [para. 49].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 49].

Canadian Lift Truck Co. v. Deputy Minister of National Revenue for Customs and Excise (1955), 1 D.L.R.(2d) 497 (S.C.C.), refd to. [para. 49].

Fox v. Registered Nurses' Association (N.S.) (2002), 209 N.S.R.(2d) 342; 656 A.P.R. 342 (C.A.), refd to. [para. 49].

Dhanjal v. Air Canada (1997), 139 F.T.R. 37 (T.D.), refd to. [para. 49].

Midland Transport Ltd. v. Big Wheels Transport and Leasing Ltd. (1986), 63 Nfld. & P.E.I.R. 350; 194 A.P.R. 350 (P.E.I.C.A.), refd to. [para. 49].

Sunbury Transport Ltd. v. Brookville Transport Ltd. et al. (1991), 113 N.B.R.(2d) 318; 285 A.P.R. 318 (C.A.), refd to. [para. 49].

Imperial Oil Ltd. v. Board of Commissioners of Public Utilities (N.S.) (1974), 10 N.S.R.(2d) 415; 2 A.P.R. 415 (C.A.), refd to. [para. 49].

Director of Assessment (N.S.) v. Gatsby's Bar & Eatery Ltd. et al. (2004), 223 N.S.R.(2d) 70; 705 A.P.R. 70 (C.A.), refd to. [para. 49].

Potter v. Korn, [1996] B.C.J. No. 692 (S.C.), refd to. [para. 50].

Janzen v. Platy Enterprises - see Janzen and Govereau v. Pharos Restaurant and Grammas et al.

Janzen and Govereau v. Pharos Restaurant and Grammas et al., [1989] 1 S.C.R. 1252; 95 N.R. 81; 58 Man.R.(2d) 1, refd to. [para. 59].

Dhanjal v. Air Canada (1996), 26 C.H.R.Q. 367 (H.R.T.), affd. (1997), 139 F.T.R. 37 (T.D.), refd to. [para. 59].

Canadian Human Rights Commission v. Canadian Armed Forces et al., [1999] 3 F.C. 653; 167 F.T.R. 216 (T.D.), refd to. [para. 59].

Bushey v. Sharma, 2003 CarswellNat 2461 (Can. Trib.), refd to. [para. 62].

Farnya v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), refd to. [para. 67].

McLellan v. Mentor Investments Ltd. (1991), 15 C.H.R.R. D/134, refd to. [para. 67].

Mohammed v. Maraposa Stores Ltd., 14 C.H.R.R. D/15 (B.C.H.R.C.), refd to. [para. 72].

Noffke v. McClaskin Hot House (1989), 11 C.H.R.R. D/407, refd to. [para. 73].

Dupuis v. British Columbia (Ministry of Forests) (1994), 20 C.H.R.R.D./87 (B.C.C.H.R.), refd to. [para. 79].

Statutes Noticed:

Human Rights Act, R.S.N.S. 1989, c. 214, sect. 4 [para. 56]; sect. 5(1)(d), sect. 5(1)(q) [para. 57].

Authors and Works Noticed:

Mendes, Racial Discrimination: Law and Practice, p. 3-67 [para. 72].

Tarnopolsky and Pentney, Discrimination and the Law, pp. 8-104 [para. 77]; 8-111, 8-112 [para. 78].

Zinn and Brethour, The Law of Human Rights in Canada, p. 11-12 [para. 73].

Counsel:

Michael Wood, Q.C., and Anne E. Smith, for the appellant, Nova Scotia Human Rights Commission;

Elizabeth Cusack, Q.C., for the appellant, Dorothy Kateri Moore;

Trevor Muller, respondent, for the respondents.

This appeal was heard on October 6, 2004, at Halifax, N.S., before Glube, C.J.N.S., Chipman and Hamilton, JJ.A., of the Nova Scotia Court of Appeal.

On October 29, 2004, Chipman, J.A., delivered the following judgment for the Court of Appeal.