Nova Scotia Liquor Corp. v. Human Rights Board of Inquiry (N.S.) et al., (2016) 371 N.S.R.(2d) 367 (CA)

• Judge: Scanlan, Oland and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 01, 2015
• Jurisdiction: Nova Scotia
• Citations: (2016), 371 N.S.R.(2d) 367 (CA);2016 NSCA 28

N.S. Liquor Corp. v. Inquiry Bd. (2016), 371 N.S.R.(2d) 367 (CA);

    1169 A.P.R. 367

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. AP.033

Nova Scotia Liquor Corporation (appellant) v. Nova Scotia Board of Inquiry under the Human Rights Act, the Nova Scotia Human Rights Commission, Pearl Kelly, and the Attorney General of Nova Scotia (respondents)

(CA 438443; 2016 NSCA 28)

Indexed As: Nova Scotia Liquor Corp. v. Human Rights Board of Inquiry (N.S.) et al.

Nova Scotia Court of Appeal

Scanlan, Oland and Bourgeois, JJ.A.

April 20, 2016.

Summary:

The complainant (Kelly), a store manager with Nova Scotia Liquor Corp. (NSLC) who was on sick leave, filed a complaint, alleging that the NSLC discriminated against her on the grounds of gender and mental disability. A Board of Inquiry found that some of her allegations constituted discrimination contrary to the Human Rights Act. The Board retained jurisdiction to determine issues of accommodation should Kelly be able to return to work in the future. The NSLC appealed and Kelly cross-appealed.

The Nova Scotia Court of Appeal allowed the appeal in part. The court set aside Board's finding of discrimination on the basis of mental disability and its retention of jurisdiction to determine the issues of accommodation and undue hardship in the future. In light of its conclusions on the appeal, the court found it unnecessary to deal with the cross-appeal.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See second Civil Rights - Topic 907 and first Civil Rights - Topic 987 ].

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - [See both Civil Rights - Topic 7117 ].

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - A store manager with the Nova Scotia Liquor Corp. (NSLC), who was on sick leave for anxiety and depression, filed a human rights complaint alleging that the NSLC caused her mental disability - A Board of Inquiry agreed - The NLSC appealed, arguing that the Board erred in admitting certain medical evidence as expert opinion in the absence of a properly qualified expert and in concluding that NSLC caused the store manager's mental disability - The Nova Scotia Court of Appeal held that the Board's conclusion that the store manager suffered from a mental disability was reasonable - A Board of Inquiry was not bound by the same evidentiary considerations as a court (Human Rights Act Regulations, s. 7) - It was well within the Board's purview to accept into evidence the testimony of the store manager's treating psychologist and two medical reports - The court rejected NSLC's contention that only where a medical diagnosis of mental disability was made could disability be found, and that properly qualified expert evidence was required to make such a finding - See paragraphs 63 to 77.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - A store manager with the Nova Scotia Liquor Corp. (NSLC), who was on sick leave for anxiety and depression, filed a discrimination complaint against the NSLC - A Board of Inquiry appointed under the Human Rights Act found that some of the allegations constituted discrimination - The NSLC appealed, arguing that the Board erred in failing to give reasons on key issues of credibility - The Nova Scotia Court of Appeal stated that the Board's assessment of credibility was shielded from appellate review, provided there was some supporting evidence in the record - The court saw no reason, solely on the basis of the treatment of credibility in the reasons, to interfere with the conclusions of the board - See paragraphs 78 to 83.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - A store manager with the Nova Scotia Liquor Corp. (NSLC), who was on sick leave for anxiety and depression, filed a discrimination complaint against the NSLC - A Board of Inquiry appointed under the Human Rights Act found that some of the allegations constituted discrimination - The NSLC appealed, arguing that the Board erred in using evidence of statute barred conduct that was not discriminatory under the Act as evidence of ongoing misconduct by the NSLC - The Nova Scotia Court of Appeal rejected this ground of appeal - If a Board made a finding of current discrimination based on statute-barred conduct, that would constitute an improper end-run around the limitation period specified in s. 29(2) - However, in this case, even if the Board relied on a statute barred incident as evidence of ongoing misconduct, it had no impact on the result of the appeal which was determined on other grounds - See paragraphs 97 to 120.

Civil Rights - Topic 987

Discrimination - Employment - On basis of sex - A store manager with the Nova Scotia Liquor Corp. (NSLC) filed a human rights complaint, alleging that the NSLC discriminated against her on the basis of sex in conducting a performance appraisal - She claimed that she was held to a different standard than her male counterparts in terms of her annual performance evaluations - A Board of Inquiry appointed under the Human Rights Act agreed - The NSLC appealed - The Nova Scotia Court of Appeal rejected this ground of appeal - The NSLC raised a valid concern that the Board's reasons were silent with respect to how Kelly's gender contributed to the finding of discrimination - However, the court was not to review the reasons for perfection, nor whether they could have been improved, but rather, based on a broader context including the whole of the decision and the evidentiary record - The court had to consider whether the conclusion was understandable and fell within the range of reasonable outcomes - In the court's view it did - In my view it does - See paragraphs 34 to 52.

Civil Rights - Topic 987

Discrimination - Employment - On basis of sex - A store manager with the Nova Scotia Liquor Corp. (NSLC) filed a human rights complaint, alleging that the NSLC discriminated against her on the basis of sex because management and other staff referred to her as "Pregnant Pearl in Pictou" suggesting that her position or promotions were without merit - The NSLC appealed, arguing that the Board err in law when it made its factual and legal findings in relation to the comments - The NSLC submitted that the Board erred in finding liability, despite the store manager's lack of complaining about it - The Nova Scotia Court of Appeal held that the Board's finding of discrimination was reasonable - By the repeated use of "Pregnant Pearl in Pictou", the store manager was subjected to a work environment where her achievements were negatively linked to her pregnancies, as opposed to her genuine abilities - That conduct, participated in by management and by other staff with management's knowledge, was objectively offensive, and did not require her to indicate her objection to it - See paragraphs 84 to 96.

Civil Rights - Topic 989

Discrimination - Employment - On basis of physical or mental disability - The Nova Scotia Liquor Corp. (NSLC) wrote a letter to a store manager who was on sick leave, reprimanding her for picking up from a store, without permission, two bottles of wine, traditionally given as a Christmas bonus - She was on sick leave with anxiety and depression at the time - She filed a human rights complaint, alleging that the letter amounted to discrimination of the basis of mental disability - A Board of Inquiry appointed under the Human Rights Act agreed - The NSLC appealed - The Nova Scotia Court of Appeal held that the Board's decision was unreasonable and set aside the Board's finding of discrimination based on mental disability - The court held that it was not clear from the Board's decision how the wine incident letter met the three-part test for a finding of discrimination, and especially how she was differentially treated - See paragraphs 53 to 62.

Civil Rights - Topic 989

Discrimination - Employment - On basis of physical or mental disability - [See first Civil Rights - Topic 907 ].

Civil Rights - Topic 7061

Federal or provincial legislation - Commissions or boards - Jurisdiction - General - A store manager with the Nova Scotia Liquor Corp. (NSLC), who was on sick leave for anxiety and depression, filed a discrimination complaint against the NSLC - A Board of Inquiry appointed under the Human Rights Act found that some of the allegations constituted discrimination - The Board also retained jurisdiction to determine, at some future date, whether the NSLC had met its obligation to accommodate the store manager - The NSLC appealed, arguing that the Board erred in law in retaining jurisdiction - The Nova Scotia Court of Appeal stated that "The Board's decision to retain jurisdiction is not a true question of jurisdiction, but falls squarely within the interpretation of its home statute. As such, a reasonableness standard applies. In my view, the Board's decision to maintain jurisdiction to hear some possible, future question of undue hardship, or accommodation, failed to recognize that it has jurisdiction to only determine current contraventions of the Act. Although a board may retain the ability to oversee implementation of a remedy arising from a complaint, the complaint must be one which has occurred, not one that might occur in future. As such, the Board's decision to retain jurisdiction was unreasonable" - See paragraphs 121 to 137.

Civil Rights - Topic 7117

Federal, provincial or territorial legislation - Practice - Appeals - Standard of review - Section 36(1) of the Human Rights Act provided that "Any party to a hearing before a board of inquiry may appeal from the decision or order of the board to the Nova Scotia Court of Appeal on a question of law in accordance with the rules of court" - The Nova Scotia Court of Appeal, stated that "... some of the issues raised on this appeal challenge findings of fact made by the Board. Given the scope of s. 36(1), this poses difficulty for those seeking to advance such arguments. In International Association of Fire Fighters, Local 268 v. Adekayode, 2016 NSCA 6, Fichaud, J.A. considered s. 36(1) and noted that the door to reviewing the factual findings of a board of inquiry may only be cracked where there is no evidence upon which such conclusions could have been reached" - See paragraph 23.

Civil Rights - Topic 7117

Federal, provincial or territorial legislation - Practice - Appeals - Standard of review - The complainant (Kelly), a store manager with Nova Scotia Liquor Corp. (NSLC), filed a complaint, alleging that the NSLC discriminated against her on the grounds of gender and mental disability - A Board of Inquiry found that some of her allegations constituted discrimination contrary to the Human Rights Act, while others did not - The NSLC appealed and Kelly cross-appealed - Issues raised included challenges to findings of fact, a jurisdiction issue, and sufficiency of the written reasons - The Nova Scotia Court of Appeal discussed the standard of review applicable to the various issues raised on appeal - See paragraphs 28 to 33.

Cases Noticed:

International Association of Fire Fighters, Local 268 v. Adekayode et al. (2016), 371 N.S.R.(2d) 38; 1169 A.P.R. 38; 2016 NSCA 6, refd to. [para. 23].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 25].

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. 26].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 27].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 29].

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. 30].

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. 30].

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. 30].

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. 31].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 31].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Bombardier Inc. et al. (2015), 473 N.R. 50; 2015 SCC 39, refd to. [para. 43].

Crowley v. Liquor Control Board of Ontario, 2011 HRTO 1429, refd to. [para. 70].

Simcoe Condominium Corporation No. 89 v. Dominelli, 2015 ONSC 3661, refd to. [para. 71].

Desormeaux v. Ottawa-Carleton Regional Transit Commission - see Ottawa (City) v. Canadian Human Rights Commission et al.

Ottawa (City) v. Canadian Human Rights Commission et al., 2003 CHRT 2, revd. (2004), 267 F.T.R. 216; 2004 FC 1778, revd. (2005), 341 N.R. 201; 2005 FCA 311, leave to appeal refused [2005] S.C.C.A. No. 534 (S.C.C.), refd to. [para. 73].

Cooper v. 133668899 Ltd. (o/a Best Western Strathmore Inn), 2015 AHRC 6, refd to. [para. 74].

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. 85].

O'Hara v. Human Rights Commission (B.C.), [2002] B.C.T.C. 559; 2002 BCSC 559, refd to. [para. 106].

Manitoba v. Human Rights Commission (Man.), Galbraith and Lylyk (1983), 25 Man.R.(2d) 117; 2 D.L.R.(4th) 759 (C.A.), refd to. [para. 106].

ExxonMobil Canada Ltd. v. Carpenter et al. (2011), 310 N.S.R.(2d) 177; 983 A.P.R. 177; 2011 NSSC 445, refd to. [para. 108].

Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section local 2000 (SCFP-FTQ) v. Hydro-Québec, [2008] 2 S.C.R. 561; 377 N.R. 136; 294 D.L.R.(4th) 407; 2008 SCC 43, refd to. [para. 130].

Statutes Noticed:

Board of Inquiry Regulations (N.S.) - see Human Rights Act Regulations (N.S.), Boards of Inquiry Regulations.

Human Rights Act, R.S.N.S. 1989, c. 214, sect. 4 [para. 42]; sect. 29(2) [para. 97]; sect. 34(7), sect. 34(8) [para. 135]; sect. 36(1) [para. 22].

Human Rights Act Regulations (N.S.), Boards of Inquiry Regulations, N.S. Reg. 221/91, sect. 7 [para. 67].

Counsel:

Bradley Proctor and Kyle MacIsaac, for the appellant/respondent on cross-appeal;

Ann Smith, Q.C., for the respondent, Nova Scotia Human Rights Commission;

Barry Mason, Q.C., and Laura Veinot, for the respondent, Pearl Kelly/appellant on cross-appeal;

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

This appeal was heard in Halifax, N.S., on December 1, 2015, before Scanlan, Oland and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal. The following decision was delivered for the court by Bourgeois, J.A., on April 20, 2016.