Nova Scotia (Attorney General) v. MacLean et al., (2016) 377 N.S.R.(2d) 254 (CA)

• Judge: Fichaud, J.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 15, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 377 N.S.R.(2d) 254 (CA);2016 NSCA 69

N.S. (A.G.) v. MacLean (2016), 377 N.S.R.(2d) 254 (CA);

    1187 A.P.R. 254

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. SE.021

The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia (including the Minister of Community Services and the Minister of Health and Wellness) (appellant/applicant) v. Beth MacLean, Olga Cain on behalf of Sheila Livingstone, Susan Lattie on behalf of Joseph Delaney, Disability Rights Coalition, J. Walter Thompson, Q.C., in his capacity as Nova Scotia Human Rights Board of Inquiry Chair, and The Nova Scotia Human Rights Commission (respondents)

(CA No. 454541; 2016 NSCA 69)

Indexed As: Nova Scotia (Attorney General) v. MacLean et al.

Nova Scotia Court of Appeal

Fichaud, J.A.

September 19, 2016.

Summary:

Complainants filed a complaint of discrimination under the Human Rights Act, naming the Attorney General of Nova Scotia as representative of Nova Scotia. A one member Board of Inquiry was appointed. The Attorney General sought to have the Chair of the Board (Thompson) recuse himself on the basis of a reasonable apprehension of bias. Thompson refused the request. The Attorney General appealed and moved to stay the Board's proceedings until the appeal was determined. The complainants asserted that Thompson's oversight of pre-hearing disclosure should continue.

The Nova Scotia Court of Appeal, per Fichaud, J.A., dismissed the motion for a stay of any processes of the Board, chaired by Thompson, respecting the resolution of any dispute respecting whether the Attorney General had complied with a prior decision of the Board respecting disclosure. With that exception, the court granted a stay of proceedings before the Board until the court issued its order on the appeal.

Civil Rights - Topic 7111

Federal, provincial or territorial legislation - Practice - Stay of proceedings - Complainants filed a discrimination complaint, naming the Attorney General of Nova Scotia as representative of Nova Scotia - A one member Board of Inquiry was appointed - The Attorney General sought to have the Chair of the Board (Thompson) recuse himself, asserting that there was a reasonable apprehension of bias based on an exchange of correspondence 15 years earlier between Thompson and the former Minister of Community Services - Thompson refused the request - The Attorney General appealed and moved to stay the Board's proceedings until the appeal was determined - The complainants asserted that Thompson's oversight of pre-hearing disclosure should continue - The Nova Scotia Court of Appeal, per Fichaud, J.A., referred to rules 90.41(2) and 90.41(8) and concluded that it had the discretion to fully or partially stay the proceedings - The court accepted that the grounds of appeal raised an arguable issue - A merits hearing before the Board, with Thompson as Chair, would cause irreparable harm if the court later ruled that Thompson should have recused - The effort of the merits hearing would be wasted, the remedies sought were not simply retractable, the matter would have to be reheard before another Chair, and there was no avenue to compensate for waste and duplication - The complainants would suffer little, if any, inconvenience from a stay - The balance of convenience favoured a stay - However, there was no irreparable harm to the Attorney General from the continuation of the process of the Board, chaired by Thompson, to see that the Attorney General complied with the Board's prior decision respecting disclosure - The early resolution of any dispute about the application of that decision would benefit both parties - The secondary test of "exceptional circumstances" did not support a stay of the Board's disclosure process - Justice between the parties did not warrant the procrastination of relevant disclosure that would enable a proper hearing of the merits before the Board - In the result, the court denied a stay of any processes of the Board, chaired by Thompson, respecting the resolution of any dispute respecting the Attorney General's compliance with the disclosure decision - With that exception, the court granted a stay.

Practice - Topic 8951

Appeals - Stay of proceedings pending appeal - Jurisdiction - [See Civil Rights - Topic 7111 ].

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - [See Civil Rights - Topic 7111 ].

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See Civil Rights - Topic 7111 ].

Practice - Topic 8958

Appeals - Stay or proceedings pending appeal - Balance of convenience and justice - [See Civil Rights - Topic 7111 ].

Counsel:

Dorianne Mullin and Robyn Kennedy, for the appellant/applicant, Attorney General of Nova Scotia;

Charlene Moore and Vincent Calderhead, for the respondents, Beth MacLean, Olga Cain on behalf of Sheila Livingstone and Susan Lattie on behalf of Joseph Delaney;

Claire McNeil and Donna Franey, for the respondent, Disability Rights Coalition;

Kymberly Franklin, for the Nova Scotia Human Rights Commission;

J. Walter Thompson, Q.C., not appearing.

This motion was heard in Chambers, at Halifax, Nova Scotia, on September 15, 2016, by Fichaud, J.A., of the Nova Scotia Court of Appeal, who delivered the following judgment on September 19, 2016.