Prince Edward Island v. Burge et al., (1994) 123 Nfld. & P.E.I.R. 143 (PEITD)

• Judge: DesRoches, J.
• Case Date: August 16, 1994
• Jurisdiction: Prince Edward Island
• Citations: (1994), 123 Nfld. & P.E.I.R. 143 (PEITD)

P.E.I. v. Burge (1994), 123 Nfld. & P.E.I.R. 143 (PEITD);

    382 A.P.R. 143

MLB headnote and full text

Her Majesty The Queen in Right of the Province of Prince Edward Island as represented by the Prince Edward Island Liquor Control Commission (applicant) v. Gerald R. Foster, Q.C., a Board of Inquiry appointed pursuant to s. 25 of the Human Rights Act, R.S.P.E.I. 1988, c. H-12, as amended, Michael Burge and the Prince Edward Island Human Rights Com­mission (respondents)

(GSC-12646)

Indexed As: Prince Edward Island v. Burge et al.

Prince Edward Island Supreme Court

Trial Division

DesRoches, J.

August 16, 1994.

Summary:

Burge, a Progressive Conservative sup­porter, was awarded the provincial liquor hauling contract when the Conservatives won the 1979 provincial election. In 1986, when the Liberals won the election, Burge's con­tract was terminated. Burge filed a complaint of discrimination in employment on the basis of his political belief. A board of inquiry was appointed under s. 25 of the Human Rights Act. Before the hearing, the province admitted that one of the reasons for termi­nating the contract was Burge's political beliefs (i.e., discrimination). The board ordered that the province pay Burge $275,598 for his monetary loss (six years' lost income) plus $2,000 for injured feelings. The province applied for judicial review of the compensation decision.

The Prince Edward Island Supreme Court, Trial Division, allowed the application in part. The board erred in obtaining post-hearing information from Burge's accountant and using that information without affording the province an opportunity to know of the information, comment on it or rebut it. Further, the board failed to consider relevant evidence on the issue of remedy and failed to apply the proper test (reasonable foreseeability) in assessing Burge's economic loss. The court remitted the matter to a differently constituted board to recalculate compensation with directions from the court on how to proceed.

Administrative Law - Topic 2145

Natural justice - Administrative decisions or findings - Failure to consider evidence - Burge's liquor hauling contract was terminated after seven years by a newly elected provincial government - Discrimi­nation was conceded as one of the reasons for termination - The board of inquiry awarded Burge six years' lost income ($275,598) as compensation for economic loss plus $2,000 for injured feelings - The Prince Edward Island Supreme Court, Trial Division, quashed the lost income assess­ment decision and remitted the matter, with directions, to a differently constituted tribunal for reconsideration - The board breached the rules of natural justice by requesting and relying on post-hearing information from one of the parties, with­out giving the other party an opportunity to comment on it or rebut it - The board also erred in failing to consider relevant evidence on the issue of remedy and failed to apply the proper test (reason­able foreseeability) in assessing Burge's eco­nomic loss - The court opined that six years' lost income was patently unreason­able - Somewhere between seven and 18 months was reasonable.

Administrative Law - Topic 2606

Natural justice - Evidence and proof - Receipt of evidence or information after close of hearing - [See Administrative Law - Topic 2145 ].

Civil Rights - Topic 1172

Discrimination - Remedies - Compensa­tion for economic loss - [See Adminis­trative Law - Topic 2145 ].

Cases Noticed:

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 16].

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses' Association et al., [1975] 1 S.C.R. 382; 41 D.L.R.(3d) 6, refd to. [para. 18].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81, refd to. [para. 20].

Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; 63 N.R. 161; 23 D.L.R.(4th) 122, refd to. [para. 21].

R. v. Labour Relations Board (Alta.) (1983), 27 Alta. L.R.(2d) 338 (Q.B.), refd to. [para. 22].

Cabot Institute of Applied Arts and Tech­nology v. Tripp et al. (1989), 75 Nfld. & P.E.I.R. 231; 234 A.P.R. 231 (Nfld. T.D.), refd to. [para. 23].

Piazza and Human Rights Commission (Ont.) v. Airport Taxicab (Malton) As­sociation and Mann (1989), 34 O.A.C. 349; 69 O.R.(2d) 281 (C.A.), refd to. [para. 59].

Canada (Attorney General) v. McAlpine (1989), 99 N.R. 221; 12 C.H.R.R. D/253 (F.C.A.), refd to. [para. 60].

Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd. v. Pontypridd Waterworks Co., [1903] A.C. 426 (H.L.), refd to. [para. 70].

Hunting Merritt Shingle Co. v. Minister of National Revenue, [1951] Ex. C.R. 148, refd to. [para. 70].

Dawson v. Helicopter Exploration Co. (1957), 8 D.L.R.(2d) 97 (B.C.C.A.), refd to. [para. 70].

Trainor v. Human Rights Commission (P.E.I.) et al., [1992] 1 P.E.I.R. D16; 98 Nfld. & P.E.I.R. 348; 311 A.P.R. 348 (P.E.I.T.D.), refd to. [para. 80].

Kane v. Board of Governors of the Uni­versity of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214; 110 D.L.R.(3d) 311, refd to. [para. 103].

Public Utilities Board Rules of Practice (Alta.) Rule 13, Re (1985), 67 A.R. 251 (C.A.), refd to. [para. 109].

Food City Ltd. v. Land Use Commission (P.E.I.) (1987), 63 Nfld. & P.E.I.R. 260; 194 A.P.R. 260 (P.E.I.S.C.), refd to. [para. 109].

Giroux v. Laurentian University, Monahan, Best and Bordeleau (1984), 3 O.A.C. 375; 46 O.R.(2d) 276 (C.A.), refd to. [para. 109].

Bristow v. Canada (1985), 64 N.R. 235 (F.C.A.), refd to. [para. 109].

Ladney and Garth v. Moore (Township) (1984), 5 O.A.C. 390; 46 O.R.(2d) 586 (Div. Ct.), refd to. [para. 109].

Vespra (Township) v. Ontario (Municipal Board) (1983), 43 O.R.(2d) 680 (Div. Ct.), refd to. [para. 109].

Statutes Noticed:

Human Rights Act, R.S.P.E.I. 1988, c. H-12, sect. 25 [para. 1]; sect. 26(1) [para. 97]; sect. 26(4) [para. 60].

Judicial Review Act, R.S.P.E.I. 1988, c. J-3, sect. 3(3) [para. 106]; sect. 6(1) [para. 101].

Counsel:

Karen Campbell and David W. Hooley, for the applicant;

Philip Mullally, for the Board of Inquiry;

Ian Bailey, for Michael Burge;

James Wyatt, for the Human Rights Com­mission.

This application was heard on June 6-7, 1994, before DesRoches, J., of the Prince Edward Island Supreme Court, Trial Divi­sion, who delivered the following judgment on August 16, 1994.