International Association of Fire Fighters, Local 268 v. Adekayode et al., 2016 NSCA 6

• Judge: Fichaud, Saunders and Scanlan, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 17, 2015
• Jurisdiction: Nova Scotia
• Citations: 2016 NSCA 6;(2016), 371 N.S.R.(2d) 38 (CA)

IAFF v. Adekayode (2016), 371 N.S.R.(2d) 38 (CA);

    1169 A.P.R. 38

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. FE.025

International Association of Fire Fighters, Local 268 (appellant) v. Ray Adekayode, Nova Scotia Human Rights Commission, Nova Scotia Human Rights Commission Board of Inquiry, Attorney General of Nova Scotia, and Halifax Regional Municipality (respondents)

(CA 438510; 2016 NSCA 6)

Indexed As: International Association of Fire Fighters, Local 268 v. Adekayode et al.

Nova Scotia Court of Appeal

Fichaud, Saunders and Scanlan, JJ.A.

February 10, 2016.

Summary:

Adekayode was employed by the Halifax Regional Municipality. His collective agreement topped up the federal Employment Insurance benefits that were paid to adoptive parents who took parental leave, but not those of birth parents on parental leave. Adekayode, a birth parent, claimed that the collective agreement discriminated against him based on family status contrary to s. 5(1)(r) of the Nova Scotia Human Rights Act. A Human Rights Board of Inquiry allowed the complaint and ordered that Adekayode be given 12 weeks leave to be paid as if he were on parental leave and in receipt of Employment Insurance benefits plus the collective agreement's top-up allowance. The Board ordered Halifax and Adekayode's union to share the cost. The union appealed. Halifax endorsed the appeal. At issue was whether the Board's ruling offended the appellate standard of review either: (1) by concluding that the collective agreement discriminated within s. 5(1)(r), or (2) by ruling that the collective agreement's top-up provision was not saved by s. 6(i) of the Act.

The Nova Scotia Court of Appeal dismissed the ground of appeal that related to s. 5(1), but allowed the appeal respecting s. 6(i) of the Act. Section 6(i) excepted the adoption leave top-up from s. 5(1)(r). On that basis, the court overturned the Board's order and dismissed Adekayode's complaint.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - Adekayode's collective agreement topped up the federal Employment Insurance benefits that were paid to adoptive parents who took parental leave, but not those of birth parents on parental leave - Adekayode, a birth parent, claimed that the collective agreement discriminated against him based on family status contrary to s. 5(1)(r) of the Nova Scotia Human Rights Act - A Human Rights Board of Inquiry allowed the complaint and ordered a remedy against Adekayode's employer and union - The union appealed - The employer endorsed the appeal - At issue was whether the Board's ruling offended the appellate standard of review either: (1) by concluding that the collective agreement discriminated within s. 5(1)(r), or (2) by ruling that the collective agreement's top-up provision was not saved by s. 6(i) of the Act - The Nova Scotia Court of Appeal reviewed the law on the standard of review for questions of law and concluded that: "(1) Correctness governs the interpretation of constitutional principles under s. 15 of the Charter and the transference or usage of s. 15 principles and authorities to construe the same terms in the Human Rights Act. In this appeal, much argument focused on (1) whether the meaning of 'discrimination' under s. 15(1) of the Charter should drive the interpretation of 'discriminate' in s. 5(1) of the Human Rights Act, and (2) whether the meaning of 'law, program or activity', 'has as its object the amelioration' and 'disadvantaged' under s. 15(2) of the Charter should determine the meaning of the identical words in s. 6(i) of the Human Rights Code. The response to these arguments includes a discussion of constitutional or quasi-constitutional issues of central importance to the legal system for which the Board has no greater expertise than does this Court. ... (2) Other aspects of the Board's interpretation and application of its home legislation attract reasonableness." - See paragraph 40.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - Adekayode's collective agreement topped up the federal Employment Insurance benefits that were paid to adoptive parents who took parental leave, but not those of birth parents on parental leave - Adekayode, a birth parent, claimed that the collective agreement discriminated against him based on family status contrary to s. 5(1)(r) of the Nova Scotia Human Rights Act - A Human Rights Board of Inquiry allowed the complaint and ordered a remedy against Adekayode's employer and union - The union appealed - The employer endorsed the appeal - The Nova Scotia Court of Appeal stated that "This appeal also challenges the Board's findings of fact. Where, as here, the statutory right of appeal is limited to an issue of law, the Court may review a finding of fact only if there is no supporting evidence from which the finding may be made or the inference reasonably drawn. That is because a finding based on no evidence is arbitrary, and a tribunal errs in law by acting arbitrarily in any aspect of its process, including fact-finding. The standard of review would be reasonableness ... though it is difficult to conceive how an arbitrary finding could be reasonable. Alternatively, if there is some evidence, then the tribunal's factual findings and inferences are not appealable under the statute, nor are assessments of credibility, meaning the standard of review is not an issue. ..." - See paragraph 42.

Civil Rights - Topic 2

General - General principles - Interpretation of human rights legislation - Adekayode's collective agreement topped up the federal Employment Insurance benefits that were paid to adoptive parents who took parental leave, but not those of birth parents on parental leave - Adekayode, a birth parent, claimed that the collective agreement discriminated against him based on family status contrary to s. 5(1)(r) of the Nova Scotia Human Rights Act - A Human Rights Board of Inquiry allowed the complaint and ordered a remedy against Adekayode's employer and union - The union appealed, asserting that the jurisprudence under s. 15 of the Charter determined the meaning of "discrimination" in the Act, and those principles required Adekayode to prove historical prejudice or stereotyping - The Nova Scotia Court of Appeal rejected the assertion - Section 4 of the Act defined discrimination - Section 4 opened with "For the purpose of this Act, a person discriminates where ..." - Section 4's elements were not just examples that were included in an unscripted broader definition - The legislature designated s. 4 as the point of departure for any interpretation of "discrimination" in a human rights complaint under the Act - Adekayode did not bring a s. 15 Charter challenge - Neither the union nor the employer challenged the constitutional validity of any provision of the Act - Human rights legislation was quasi-constitutional, and it precepts should, within the principles of statutory construction, conform to Charter values - However, Adekayode's complaint initiated a statutory exercise, the object of which was to seek the intent of the legislature by applying statutory construction principles - The starting point was the definition of discrimination in s. 4 - The Board interpreted s. 4 to require a distinction on a basis listed in s. 5(1), namely family status, that affected Adekayode by imposing a burden, or denying a benefit given to others - That was what ss. 4 and 5(1) provided - The Board's view was consistent with Justice Abella's summary, for the Court, of the equivalent provisions in British Columbia's Human Rights Code, in Moore v. British Columbia (Education) (2012 SCC) - See paragraphs 52 to 61.

Civil Rights - Topic 2

General - General principles - Interpretation of human rights legislation - Section 6(i) of the Nova Scotia Human Rights Act provided that s. 5(1) ("Prohibition of discrimination") did not apply "to preclude a law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or classes of individuals including those who are disadvantaged because of a characteristic referred to in clauses (h) to (v) of subsection (1) of Section 5." - The Nova Scotia Court of Appeal noted that the terms of s. 6(i) reproduced wording in s. 15(2) of the Charter - The terms of s. 6(i) were not defined by the Act - Therefore the jurisprudence under s. 15(2) directly pertained to the interpretation of s. 6(i) - The court stated that "From [R. v. Kapp (J.M.) et al (2008 SCC)] and [Peavine Metis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al. (2011 SCC) (Cunningham)], the following principles emerge. The approach is 'purposive'. The question is whether the program is 'directed to improving the situation of a group that is in need of ameliorative assistance in order to enhance substantive equality'. 'What is required is that the impugned distinction in a general sense serves or advances the object of the program, thus supporting the overall s. 15 goal of substantive equality'. In other words 'the distinction must in a real sense serve or advance the ameliorative goal'. Both Kapp and Cunningham said that it need only be shown that it was 'rational' to expect that the means would 'contribute' to the goal. In Cunningham, the Supreme Court overturned the Court of Appeal's application of a stricter standard." - See paragraph 123.

Civil Rights - Topic 902

Discrimination - General principles - Discrimination defined - [See first Civil Rights - Topic 2 ].

Civil Rights - Topic 902

Discrimination - General principles - Discrimination defined - Adekayode's collective agreement topped up the federal Employment Insurance benefits that were paid to adoptive parents who took parental leave, but not those of birth parents on parental leave - Adekayode, a birth parent, claimed that the collective agreement discriminated against him based on family status contrary to s. 5(1)(r) of the Nova Scotia Human Rights Act - A Human Rights Board of Inquiry allowed the complaint and ordered a remedy against Adekayode's employer and union - The union appealed, asserting that the jurisprudence under s. 15 of the Charter determined the meaning of "discrimination" in the Act and those principles required Adekayode to prove historical prejudice or stereotyping - The Nova Scotia Court of Appeal held that s. 15 Charter jurisprudence did not determine the meaning of "discrimination" under the Act - Further, while historical prejudice and stereotyping were relevant to whether there was discrimination under s. 15, those criteria were no longer legally essential to an infringement of s. 15 - Rather, the "disproportionate effect" on the plaintiff could be established by other evidence that varied depending on the context of the claim - The one question under s. 15(1) was "Does the challenged law violate the norm of substantive equality in s. 15(1) of the Charter?" - The Board correctly concluded that the Act did not require a claimant to establish some historical disadvantage or stereotyping as a precondition to a legitimate claim of discrimination - See paragraphs 62 to 69.

Civil Rights - Topic 902

Discrimination - General principles - Discrimination defined - Adekayode's collective agreement topped up the federal Employment Insurance benefits that were paid to adoptive parents who took parental leave, but not those of birth parents on parental leave - Adekayode, a birth parent, claimed that the collective agreement discriminated against him based on family status contrary to s. 5(1)(r) of the Nova Scotia Human Rights Act - A Human Rights Board of Inquiry allowed the complaint and ordered a remedy against Adekayode's employer and union - The union appealed, asserting that the jurisprudence under s. 15 of the Charter determined the meaning of "discrimination" in the Act and those principles required Adekayode to prove historical prejudice or stereotyping - The Employer supported the appeal, asserting that the one question under s. 15 was whether the challenged law (the collective agreement) violated the norm of substantive equality - The employer asserted that the answer was no and the Board erred by failing to dismiss Adekayode's complaint on that basis - The Nova Scotia Court of Appeal stated that substantive equality aimed to capture the discriminatory effects of a facially neutral law or a formally well-meaning program - It was about substance over form - Seen through the lens of substantive equality, historical prejudice and stereotyping were relevant, but not essential to determine whether the distinction had the effect of exacerbating or perpetuating disadvantage - That was the Board's approach to Adekayode's complaint - The Board was not obligated to dismiss Adekayode's complaint just because birth parents had not suffered historical prejudice and stereotyping - See paragraphs 70 to 78.

Civil Rights - Topic 902

Discrimination - General principles - Discrimination defined - Adekayode's collective agreement topped up the federal Employment Insurance benefits that were paid to adoptive parents who took parental leave, but not those of birth parents on parental leave - Adekayode, a birth parent, claimed that the collective agreement discriminated against him based on family status contrary to s. 5(1)(r) of the Nova Scotia Human Rights Act - Section 3(h) of the Act provided that "'family status' means the status of being in a parent-child relationship" - The Human Rights Board of Inquiry held that "family status" in s. 3(h) "included the way the parent and child came to be in their relationship: whether by birth, adoption placement, ..." - The Board concluded that the Act prohibited discrimination on the basis of a person's parent/child relationships, including a prohibition on distinctions based on how the parent/child relationship was created and distinctions based on the care obligations created by a person's parent/child relationship - The Board concluded that the collective agreement made a distinction based on family status with the effect of denying Adekayode a benefit given to adoptive parents - That distinction implicated Adekayode's human dignity - Those findings satisfied the Board's interpretation of the requirements for prima facie discrimination under s. 4 of the Act - The Board concluded that the collective agreement discriminated based on family status - The union appealed, asserting that the Board's approach of inquiring whether the differential engaged Adekayode's human dignity was "misdirected" - The Nova Scotia Court of Appeal rejected the assertion - Given that the Act expressly defined "discrimination", the meaning under the Act did not have to stride in lockstep with every modulation in the term's usage under s. 15(1) of the Charter - Rather, human rights "discrimination" should remain true to the statutory definition while being consistent with the Charter's rooted values - The Board folded the Charter's value into the interpretation of the Act by saying the differential treatment had to engage Adekayode's "human dignity" - Section 2 of the Act identified human dignity as the legislature's primary objective - The Board did not apply the factor as a confusing hurdle to substantive equality - With human dignity as a broad purposive guide, the Board undertook a straightforward analysis of substantive equality in Adekayode's household - The Board focused on Adekayode's "ability to create and manage the integration of a new human being into his family" - Whether that vital family dynamic was termed an aspect of human dignity or as "basic ... for full participation in Canadian society" was etymology that did not change the outcome - See paragraphs 79 to 97.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - [See second Civil Rights - Topic 902 ].

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - Adekayode's collective agreement topped up the federal Employment Insurance benefits that were paid to adoptive parents who took parental leave, but not those of birth parents on parental leave - Adekayode, a birth parent, claimed that the collective agreement discriminated against him based on family status contrary to s. 5(1)(r) of the Nova Scotia Human Rights Act - A Human Rights Board of Inquiry allowed the complaint and ordered a remedy against Adekayode's employer and union - The union appealed, asserting that the Board's findings about Adekayode's choices and home circumstances were "entirely unsupported by any evidence" - The Nova Scotia Court of Appeal rejected the assertion, stating that "The Board found ... that the impugned provision 'materially affected Ray Adekayode's choices about how to manage the integration of a new infant into his family' and 'his participation in the initial care relationship and care responsibilities involving his son'. Consequently 'the lack of access to advantages available to other individuals here affects a recognized aspect of Mr. Adekayode's legitimate sense of human dignity'. Mr. Adekayode's transcript of testimony to the Board, and that of his wife Colleen, are in the record. Not every finding must be transposed from direct evidence. The Board was entitled to draw reasonable inferences. The Board's findings and inferences are well supported by the testimony of Mr. and Mrs. Adekayode." - See paragraphs 98 to 101.

Civil Rights - Topic 918

Discrimination - Family status - What constitutes "family status" - [See fourth Civil Rights - Topic 902 ].

Civil Rights - Topic 920

Discrimination - Family status - Adopting parents vs. biological parents - [See fourth Civil Rights - Topic 902 ].

Civil Rights - Topic 988

Discrimination - Employment - On basis of family, civil or marital status - [See fourth Civil Rights - Topic 902 ].

Civil Rights - Topic 990

Discrimination - Employment - Affirmative action program or ameliorative program - [See second Civil Rights - Topic 2 ].

Civil Rights - Topic 990

Discrimination - Employment - Affirmative action program or ameliorative program - Article 29.02.8 of Adekayode's 2004 collective agreement topped up the federal Employment Insurance benefits that were paid to adoptive parents who took parental leave, but not those of birth parents on parental leave - Adekayode, a birth parent, claimed that the collective agreement discriminated against him based on family status contrary to s. 5(1)(r) of the Nova Scotia Human Rights Act - A Human Rights Board of Inquiry allowed the complaint and ordered a remedy against Adekayode's employer and union - The union appealed, asserting that the Board erred by ruling that the collective agreement's top-up provision was not saved by s. 6(i) of the Act - Section 6(i) provided that s. 5(1) did not apply "to preclude a law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or classes of individuals including those who are disadvantaged because of a characteristic referred to in clauses (h) to (v) of subsection (1) of Section 5." - The Nova Scotia Court of Appeal allowed the appeal - The uncontradicted evidence before the Board was that adoptive parents faced significant challenges not encountered by birth parents - The Board incorrectly concluded that there was no "program or activity" of which the top-up formed a part - Nothing in the Act prescribed a discrete level of strategies, components or outcomes for a "program or activity" - To establish the required correlation between the program and the disadvantaged suffered by the target group, the "program or activity" had to have the wherewithal to answer the ultimate question of whether it was rational to conclude that the means chosen to reach the ameliorative goal (the top-up program) would contribute to the ameliorative purpose (the integration of the adopted child into the family) - The court answered that question in the affirmative - Contrary to the Board's finding, it was to be expected that an ameliorative program activity under s. 6(i) would distinguish between sub-classes of the protected category by preferring one over the other - Also contrary to the Board's finding, there did not have to be proof of effect, i.e., the actual adoption experience in the bargaining unit after 2004 - The Board held the view that, given the top-up's genealogy during the 2004 labour negotiations, article 29.02.8 did not "have as its object the amelioration" of adoptive parents under s. 6(i) - Although article 29.02.8 was the objective manifestation of the compromised mutual intent of the employer and the union, that did not mean the article colourably shielded an ulterior discriminatory objective - Nobody questioned that article 29.02.8 genuinely recited the mutually agreed goal of the employer and the union, at the conclusion of negotiations, to provide a benefit for adoptive parents - Under the purposive approach to substantive equality, that established the "object" to ameliorate the condition of adoptive parents - See paragraphs 103 to 158.

Civil Rights - Topic 1194

Discrimination - Exemptions or exceptions - General - Affirmative action or ameliorative programs - [See second Civil Rights - Topic 2 and second Civil Rights - Topic 990 ].

Civil Rights - Topic 7003

Federal, provincial or territorial legislation - General - Interpretation of human rights legislation - [See first Administrative Law - Topic 9122 and both Civil Rights - Topic 2 ].

Civil Rights - Topic 7004

Federal, provincial or territorial legislation - General - Interpretation of human rights legislation - Application of legislation - [See second Civil Rights - Topic 990 ].

Civil Rights - Topic 7110

Federal, provincial or territorial legislation - Practice - Evidence and proof - [See second Civil Rights - Topic 907 ].

Civil Rights - Topic 7117

Federal, provincial or territorial legislation - Practice - Appeals - Standard of review - [See both Administrative Law - Topic 9122 ].

Cases Noticed:

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, refd to. [para. 30].

Kaiser v. Multibond Inc. (2003), 219 N.S.R.(2d) 91; 692 A.P.R. 91 (C.A.), refd to. [para. 30].

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

Human Rights Commission (N.S.) et al. v. Play It Again Sports Ltd. et al. (2004), 227 N.S.R.(2d) 292; 720 A.P.R. 292; 2004 NSCA 132, refd to. [para. 30].

Izaak Walton Killam Health Centre v. Human Rights Commission (N.S.) et al. (2014), 340 N.S.R.(2d) 369; 1077 A.P.R. 369; 2014 NSCA 18, refd to. [para. 31].

Tri-County Regional School Board v. Human Rights Commission (N.S.) et al. (2015), 354 N.S.R.(2d) 289; 1120 A.P.R. 289; 2015 NSCA 2, refd to. [para. 31].

Foster v. Human Rights Commission (N.S.) et al. (2015), 362 N.S.R.(2d) 190; 1142 A.P.R. 190; 2015 NSCA 66, refd to. [para. 31].

Nova Scotia (Minister of Environment) v. Wakeham et al. (2015), 368 N.S.R.(2d) 38; 1160 A.P.R. 38; 2015 NSCA 114, refd to. [para. 31].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1, refd to. [para. 31].

Canada (Attorney General) v. Johnstone et al. (2014), 459 N.R. 82; 2014 FCA 110, refd to. [para. 33].

Canadian National Railway v. Seeley et al. (2014), 458 N.R. 349; 2014 FCA 111, refd to. [para. 35].

Bish v. Elk Valley Coal Corp. et al. (2015), 602 A.R. 210; 647 W.A.C. 210; 2015 ABCA 225, refd to. [para. 35].

Stewart v. Elk Valley Coal Corp. - see Bish v. Elk Valley Coal Corp. et al.

Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 et al., [1996] 1 S.C.R. 571; 194 N.R. 81; 72 B.C.A.C. 1; 119 W.A.C. 1, ref to. [para. 36].

University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241, refd to. [para. 36].

Whatcott v. Human Rights Tribunal (Sask.) et al., [2013] 1 S.C.R. 467; 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75, refd to. [para. 38].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 38].

Mouvement laïque québécois et al. v. Saguenay (City), [2015] 2 S.C.R. 3; 470 N.R. 1, refd to. [para. 39].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1, refd to. [para. 39].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248, refd to. [para. 39].

Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., [2012] 2 S.C.R. 283; 432 N.R. 1, refd to. [para. 39].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 42].

Fashoranti v. College of Physicians and Surgeons (N.S.) et al. (2015), 356 N.S.R.(2d) 350; 1126 A.P.R. 350; 2015 NSCA 25, refd to. [para. 42].

Fadelle v. Nova Scotia College of Pharmacists et al., [2013] N.S.R.(2d) Uned. 38; 2013 NSCA 26, refd to. [para. 42].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 58].

Carrigan and Human Rights Commission (N.S.) v. Nova Scotia (Minister of Community Services) (1997), 157 N.S.R.(2d) 307; 462 A.P.R. 307; 1997 NSCA 19, refd to. [para. 59].

British Columbia (Minister of Education) v. Moore et al., [2012] 3 S.C.R. 360; 436 N.R. 152; 328 B.C.A.C. 1; 558 W.A.C. 1, refd to. [para. 61].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75, refd to. [para. 63].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2009] 1 S.C.R. 222; 384 N.R. 203, refd to. [para. 63].

A. v. B., [2013] 1 S.C.R. 61; 439 N.R. 1; 2013 SCC 5, refd to. [para. 64].

Quebec (Attorney General) v. A. - see A. v. B.

Taypotat v. Taypotat, [2015] 2 S.C.R. 548; 471 N.R. 173, refd to. [para. 65].

Kahkewistahaw First Nation v. Taypotat - see Taypotat v. Taypotat.

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 75].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 76].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201, refd to. [para. 76].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1, refd to. [para. 76].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120, refd to. [para. 76].

Muggah v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2015), 362 N.S.R.(2d) 201; 1142 A.P.R. 201; 2015 NSCA 63, refd to. [para. 76].

Tranchemontagne et al. v. Disability Support Program (Ont.) (2010), 269 O.A.C. 137; 2010 ONCA 593, refd to. [para. 86].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 93].

Peavine Metis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al., [2011] 2 S.C.R. 670; 418 N.R. 101; 505 A.R. 1; 522 W.A.C. 1; 2011 SCC 37, refd to. [para. 117].

Alberta (Minister of Aboriginal Affairs and Northern Development) et al. v. Cunningham - see Peavine Metis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al.

Eli Lilly & Co. et al. v. Novopharm Ltd. et al., [1998] 2 S.C.R. 129; 227 N.R. 201, refd to. [para. 151].

Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633; 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1, refd to. [para. 151].

Statutes Noticed:

Human Rights Act, R.S.N.S. 1989, c. 214, sect. 3, sect. 5(1)(r) [para. 45]; sect. 6(i) [para. 103].

Counsel:

Gordon N. Forsyth, Q.C., for the appellant;

Ann E. Smith, Q.C., and Jason Cooke, for the respondent, Nova Scotia Human Rights Commission;

Martin Ward, Q.C., and Tara Gault, for the respondent, Halifax Regional Municipality;

Ray Adekayode, appearing but not making submissions;

Edward A. Gores, Q.C., for the respondent, Attorney General of Nova Scotia, not appearing;

Nova Scotia Human Rights Commission Board of Inquiry, not appearing.

This appeal was heard at Halifax, Nova Scotia, on November 17, 2015, by Fichaud, Saunders and Scanlan, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following judgment for the court on February 10, 2016.