New Brunswick Human Rights Commission v. Province of New Brunswick (Department of Social Development), 2010 NBCA 40

• Judge: Robertson; Quigg; Turnbull
• Court: Court of Appeal (New Brunswick)
• Case Date: Thursday June 03, 2010
• Jurisdiction: New Brunswick
• Citations: 2010 NBCA 40

N.B. v. HRC (2010), 360 N.B.R.(2d) 283 (CA);

    360 R.N.-B.(2e) 283; 930 A.P.R. 283

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] N.B.R.(2d) TBEd. JN.008

Renvoi temp.: [2010] N.B.R.(2d) TBEd. JN.008

New Brunswick Human Rights Commission (respondent/appellant) v. Province of New Brunswick as Represented by the Department of Social Development (applicant/respondent)

(39-09-CA; 2010 NBCA 40)

Indexed As: New Brunswick v. Human Rights Commission (N.B.)

Répertorié: New Brunswick v. Human Rights Commission (N.B.)

New Brunswick Court of Appeal

Turnbull, Robertson and Quigg, JJ.A.

June 3, 2010.

Summary:

Résumé:

Parents of an autistic young adult filed a discrimination complaint with the Human Rights Commission of New Brunswick. The parents alleged that the child was discriminated against on the basis of his mental disability by Estabrooks and the Department of Family and Community Services, with respect to services, contrary to s. 5 of the Human Rights Act (N.B.). The Commission dismissed the complaint respecting Estabrooks. As for the Province, the Commission recommended that the Minister of Post-Secondary Education, Training and Labour appoint a Board of Inquiry to investigate the parents' complaint. The Minister referred the matter to the Labour and Employment Board (N.B.), acting as a Board of Inquiry. The Province applied for judicial review of the Commission's recommendation.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 344 N.B.R.(2d) 210; 884 A.P.R. 210, allowed the application, ruling that the Commission had breached the duty of procedural fairness. The Commission appealed.

The New Brunswick Court of Appeal dismissed the appeal. While the court held that the Commission did not breach the duty of procedural fairness (see paragraphs 5 to 7, 42 to 59), the Commission's recommendation did not meet the threshold of an arguable case when it came to the issue of prima facie discrimination (see paragraphs 60 to 86).

Administrative Law - Topic 2158

Natural justice - Administrative decisions or findings - Delay - The New Brunswick Court of Appeal held as follows: "In the administrative law context, mere delay will not warrant a stay of proceedings for abuse of process, as that would be tantamount to imposing a judicially created limitation period. There must be proof of 'significant prejudice' which results from an unacceptable delay. The delay must be such that a party's ability to make full answer and defence to the complaint has been compromised (e.g., witnesses have died or are unavailable or evidence has been lost). The Supreme Court has framed the applicable test in terms of whether proof of prejudice has been demonstrated to be of sufficient magnitude to impact on the fairness of the hearing" - See paragraphs 56 to 59.

Civil Rights - Topic 974

Discrimination - Facilities and services customarily available to public - Discrimination on basis of a physical disability or mental handicap - [See Civil Rights - Topic 7069.02].

Civil Rights - Topic 7044

Federal, provincial or territorial legislation - Commissions or boards - General - Role of investigator - [See second Civil Rights - Topic 7046].

Civil Rights - Topic 7046

Federal, provincial or territorial legislation - Commissions or boards - General - Duty of fairness - A Human Rights Officer of the New Brunswick Human Rights Commission made a preliminary investigation of a discrimination complaint but did not offer an opinion or conclusion with respect to the merits of the complaint - The New Brunswick Court of Appeal held that this did not constitute a breach of the Commission's duty of procedural fairness where there was no evidence that the Commission delegated its authority to the investigator under s. 19.2(1) of the Human Rights Act (N.B.) - See paragraphs 42 to 49.

Civil Rights - Topic 7046

Federal, provincial or territorial legislation - Commissions or boards - General - Duty of fairness - In 2002, the parents of an autistic young adult filed a complaint with the New Brunswick Human Rights Commission, arguing that there was discrimination on the basis of mental disability regarding the institutionalization of their son, including institutionalization at Centracare in Saint John - A Human Rights Officer made a preliminary investigation but did not interview "key potential witnesses at Centracare" - The New Brunswick Court of Appeal held that the omission to interview the "key potential witnesses" did not constitute a breach of the Commission's duty of procedural fairness where this omission was not relevant to the issue at hand, once it was recognized that it was not the investigator's role to come to a definitive conclusion regarding the merits of the complaint, nor was it his role to provide the Commission with a recommendation - See paragraph 50.

Civil Rights - Topic 7046

Federal, provincial or territorial legislation - Commissions or boards - General - Duty of fairness - In 2008, after having taken into account the 2005 placement of the autistic complainant at Spurwink in Maine, the New Brunswick Human Rights Commission recommended that a Board of Inquiry be appointed to investigate a 2002 mental disability discrimination complaint filed on the complainant's behalf - At issue was whether the Commission breached its duty of procedural fairness when it included the 2005 Spurwink placement in the equation - The New Brunswick Court of Appeal held that the Commission did not breach its duty of procedural fairness where the respondent Province did not suffer prejudice by the Commission's consideration of the 2005 Spurwink placement since the Spurwink placement had been raised on several occasions with the Province between 2005 and 2008 - See paragraphs 54 and 55.

Civil Rights - Topic 7046

Federal, provincial or territorial legislation - Commissions or boards - General - Duty of fairness - At issue was whether the New Brunswick Human Rights Commission breached its duty of procedural fairness because of a six year delay between the filing of a discrimination complaint against the Province and the Commission's recommendation that a Board of Inquiry be appointed to investigate the complaint - The New Brunswick Court of Appeal held that the Commission did not breach its duty of procedural fairness where the respondent Province did not suffer prejudice of sufficient magnitude to impact on the fairness of the proceedings - See paragraphs 56 to 59.

Civil Rights - Topic 7069.02

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Decision or recommendation to request board of inquiry - Section 5 of the Human Rights Act (N.B.) provided that no person shall be denied services available to the public and no person shall discriminate against any person with respect to services available to the public because of mental disability - In the present case, the parents of an autistic young adult filed a complaint under s. 5, arguing that there was discrimination on the basis of mental disability in respect of "Services, Facilities or Accommodation" provided to their son when he was removed from a Level IV adult group home in Fredericton, transferred to Centracare in Saint John and finally transferred to Spurwink in Maine - The New Brunswick Human Rights Commission recommended that the Minister of Post-Secondary Education, Training and Labour appoint a Board of Inquiry to investigate the parents' complaint - The Minister referred the matter to a Board of Inquiry - A reviewing judge quashed the Commission's recommendation - The New Brunswick Court of Appeal upheld the decision, where the Commission's recommendation did not meet the threshold of an arguable case when it came to the issue of prima facie discrimination - The court held that this was not a case where the complainant was denied access to a Level IV residential facility - It was a case in which the Level IV facility could not accommodate the care needs of the complainant - There was no facility in the Fredericton area, or for that matter the respondent Province, available to persons with mental disabilities, which provided the level of care needed for someone with "severe autism" - In the circumstances, there was no logical basis to conclude there was an arguable case that the complainant was denied access to a level of service that was available to the public generally or to other persons with mental disabilities - See paragraphs 60 to 86.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - The Human Rights Commission of New Brunswick recommended that the Minister of Post-Secondary Education, Training and Labour appoint a Board of Inquiry to investigate a discrimination complaint under s. 5 of the Human Rights Act (N.B.) - The Minister referred the matter to a Board of Inquiry - Judicial review was sought of the Commission's recommendation - At issue was the applicable standard of review - The New Brunswick Court of Appeal held that the Minister's decision to accept the recommendation was owed deference - By extrapolation, so too was the Commission's decision to make the recommendation - Thus, the applicable standard of review had to be reasonableness - See paragraphs 25 to 41 and 60.

Droit administratif - Cote 2158

Justice naturelle - Décisions ou conclusions administratives - Retard - [Voir Administrative Law - Topic 2158].

Droits et libertés - Cote 974

Discrimination - Installations et services habituellement offerts au public - Discrimination fondée sur la déficience physique ou un handicap mental - [Voir Civil Rights - Topic 974].

Droits et libertés - Cote 7044

Législation fédérale, provinciale ou territoriale - Commissions, offices, régies ou tribunaux - Généralités - Rôle de l'enquêteur - [Voir Civil Rights - Topic 7044].

Droits et libertés - Cote 7046

Législation fédérale, provinciale ou territoriale - Commissions, offices, régies ou tribunaux - Généralités - Devoir d'équité - [Voir Civil Rights - Topic 7046].

Droits et libertés - Cote 7069.02

Législation fédérale, provinciale ou territoriale - Commissions, offices, régies ou tribunaux - Compétence - Plaintes - Décision ou recommendation de nommer une commission d'enquête - [Voir Civil Rights - Topic 7069.02].

Droits et libertés - Cote 7115

Législation fédérale, provinciale ou territoriale - Procédure - Révision judiciaire (y compris la norme de révision) - [Voir Civil Rights - Topic 7115].

Cases Noticed:

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [paras. 8, 76].

British Columbia (Minister of Education) v. Moore et al., 2005 BCHRT 580, revd. [2008] B.C.T.C. Uned. A86; 81 B.C.L.R.(4th) 107; 2008 BCSC 264, refd to. [para. 8].

Ontario (Community and Social Services), Re, 1995 CanLII 6496 (Ont. I.P.C.), refd to. [para. 25].

Moumdjian v. Security Intelligence Review Committee et al., [1999] 4 F.C. 624; 246 N.R. 287 (F.C.A.), refd to. [para. 26].

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. 27].

Potash Corp. of Saskatchewan Inc. v. Scott et al. (2006), 301 N.B.R.(2d) 204; 783 A.P.R. 204; 2006 NBCA 74, affd. [2008] 2 S.C.R. 604; 377 N.R. 91; 332 N.B.R.(2d) 341; 852 A.P.R. 341; 2008 SCC 45, refd to. [para. 27].

Powell v. TD Canada Trust (2007), 320 F.T.R. 17; 2007 FC 1227, refd to. [para. 29].

Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al., [1999] 1 F.C. 113; 233 N.R. 87 (F.C.A.), refd to. [para. 30].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 30].

Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 30].

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 30].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 31].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 32].

Fundy Linen Service Inc. v. Workplace Health, Safety and Compensation Commission (N.B.) (2009), 341 N.B.R.(2d) 286; 876 A.P.R. 286; 2009 NBCA 13, refd to. [para. 32].

Slattery v. Canadian Human Rights Commission, [1994] 2 F.C. 574; 73 F.T.R. 161 (T.D.), affd. (1996), 205 N.R. 383 (F.C.A.), refd to. [para. 34].

Sanderson v. Canada (Attorney General) (2006), 290 F.T.R. 83; 2006 FC 447, refd to. [para. 34].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, consd. [para. 38].

Council of Canadians with Disabilities v. VIA Rail Canada Inc. - see VIA Rail Canada Inc. v. Canadian Transportation Agency et al.

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 38].

Cucek v. British Columbia (Minister of Children and Family Development), 2005 BCHRT 247, refd to. [para. 41].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, consd. [para. 56].

British Columbia (Minister of Education) v. Moore et al., [2008] B.C.T.C. Uned. A86; 81 B.C.L.R.(4th) 107; 2008 BCSC 264, consd. [para. 56].

Pritchard v. Human Rights Commission (Ont.), [2004] 1 S.C.R. 809; 319 N.R. 322; 187 O.A.C. 1; 238 D.L.R.(4th) 1; 2004 SCC 31, refd to. [para. 62].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 66].

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; 2004 SCC 78, refd to. [para. 66].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, consd. [para. 69].

Wynberg et al. v. Ontario (2006), 213 O.A.C. 48; 82 O.R.(3d) 561 (C.A.), refd to. [para. 69].

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; 2008 SCC 41, refd to. [para. 70].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 70].

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. 72].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329; 2000 SCC 28, refd to. [para. 77].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, consd. [para. 82].

Statutes Noticed:

Human Rights Act, R.S.N.B. 1973, c. H-11, sect. 5 [para. 2].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2009 Looseleaf Supp.), pp. 55-15 [para. 71]; 55-35 [para. 69].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (5th Ed. 2009), p. 259 ff. [para. 33].

Rosenbaum, P., and Chadha, E., Reconstructing Disability (2006), 33 Sup. Ct. L. Rev.(2d) 343, generally [para. 77].

Counsel:

Avocats:

Seamus I. Cox and Matthew R. Letson, for the appellant;

Krista L. Colford, for the respondent.

This appeal was heard on November 10, 2009, by Turnbull, Robertson and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following decision of the Court of Appeal was delivered in both official languages on June 3, 2010, by Robertson, J.A.