McDougall v. Human Rights Commission (N.S.) et al., (2016) 373 N.S.R.(2d) 321 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: November 25, 2015
• Jurisdiction: Nova Scotia
• Citations: (2016), 373 N.S.R.(2d) 321 (SC);2016 NSSC 118

McDougall v. HRC (2016), 373 N.S.R.(2d) 321 (SC);

    1175 A.P.R. 321

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. MY.012

Joseph McDougall (applicant) v. Nova Scotia Human Rights Commission and 3053984 Nova Scotia Limited, carrying on business as Terri's Place (respondents)

(Hfx. No. 439437; 2016 NSSC 118)

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

Nova Scotia Supreme Court

LeBlanc, J.

May 4, 2016.

Summary:

McDougall suffered from several physical and mental disabilities. He had a prescription for medical marijuana and a Health Canada licence to use it. He went into the bathroom of a lounge to roll a marijuana cigarette to smoke outside. The lounge owner saw McDougall and ordered him to leave the premises. The owner argued that he was unaware that McDougall had disabilities and that he ordered him to leave because the lounge had a policy of no drugs or smoking on the premises. McDougall filed a complaint with the Human Rights Commission under ss. 5(1)(a) and (o) of the Human Rights Act, alleging discrimination on the ground of being denied access to services or facilities on account of his physical or mental disabilities. The investigating human rights officer recommended that the complaint be dismissed under s. 29(4)(b). McDougall made written representations to the Human Rights Commission and the Commission dismissed the complaint for want of sufficient evidence to support the allegation of discrimination. McDougall applied for judicial review. McDougall argued that the Commission erred in not considering or failing to give sufficient weight to relevant evidence that he had no intention of smoking on the premises. McDougall argued that the investigator failed to interview witnesses that would have supported his non-intention to smoke on the premises.

The Nova Scotia Supreme Court dismissed the application. There was no procedural unfairness in the investigative or Commission decision-making processes.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Civil Rights - Topic 974 ].

Civil Rights - Topic 974

Discrimination - Facilities and services customarily available to public - Discrimination on basis of a physical or mental disability - McDougall suffered from several physical and mental disabilities - He had a prescription for medical marijuana and a Health Canada licence to use it - He went into the bathroom of a lounge to roll a marijuana cigarette to smoke outside - The lounge owner saw McDougall and ordered him to leave the premises - The owner argued that he was unaware that McDougall had disabilities and that he ordered him to leave because the lounge had a policy of no drugs or smoking on the premises - McDougall filed a complaint with the Human Rights Commission under ss. 5(1)(a) and (o) of the Human Rights Act, alleging discrimination on the ground of being denied access to services or facilities on account of his physical or mental disabilities - The investigating human rights officer recommended that the complaint be dismissed under s. 29(4)(b) - McDougall made written representations to the Human Rights Commission and the Commission dismissed the complaint for want of sufficient evidence to support the allegation of discrimination - McDougall applied for judicial review, arguing that the Commission breached its duty of procedural fairness in not considering or failing to give sufficient weight to relevant evidence - McDougall argued that the investigator failed to interview witnesses that would have supported his non-intention to smoke on the premises - The Nova Scotia Supreme Court dismissed the application - There was no procedural unfairness in the investigative or Commission decision-making processes - There was no evidence that the investigator failed to conduct a thorough and neutral investigation - It was difficult to see how the witnesses McDougall argued should have been interviewed would have provided crucial, relevant evidence - The Commission's decision to dismiss the complaint without referring it to the Board of Inquiry was reasonable - The investigator was entitled to accept the owner's claim that he ejected McDougall solely because he believed that he was going to smoke in the bathroom contrary to the premise's non-smoking policy - The Commission's decision that there was inadequate evidence to find that the owner discriminated against McDougall because of his physical and mental disabilities was reasonable.

Civil Rights - Topic 7114

Federal, provincial or territorial legislation - Practice - Investigation of complaint (incl. report) - [See Civil Rights - Topic 974 ].

Counsel:

Barbara Darby, for the applicant;

Jason Cooke and Jennie Pick, for the defendant, NSHRC.

This application was heard on November 25, 2015, at Halifax, N.S., before LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment on May 4, 2016.