Ross v. Human Rights Board of Inquiry (N.B.), (1990) 110 N.B.R.(2d) 107 (CA)

• Judge: Stratton, C.J.N.B., Hoyt and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 06, 1990
• Jurisdiction: New Brunswick
• Citations: (1990), 110 N.B.R.(2d) 107 (CA)

Ross v. Bd. of Inquiry (1990), 110 N.B.R.(2d) 107 (CA);

    110 R.N.-B.(2e) 107; 276 A.P.R. 107

MLB headnote and full text

[French language version follows English language version]

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

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Malcolm Ross (applicant/appellant) v. The Board of School Trustees, District No. 15, Human Rights Board of Inquiry, David Attis, Human Rights Commission, The Minister of Labour, Department of Education, New Brunswick Teachers' Federation and The Canadian Jewish Congress (respondents)

(41/90/CA)

Indexed As: Ross v. Human Rights Board of Inquiry (N.B.)

New Brunswick Court of Appeal

Stratton, C.J.N.B., Hoyt and Ryan, JJ.A.

September 6, 1990.

Summary:

The New Brunswick Minister of Labour appointed a labour arbitrator as a Board of Inquiry to inquire into a complaint that Malcolm Ross, a public school teacher, was preaching hatred against Jews. Ross challenged the Board of Inquiry on the ground of a reasonable apprehension of systemic bias and applied to examine the Board, the Minister of Labour and the Human Rights Commissioner.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application to examine in a judgment reported 105 N.B.R.(2d) 29; 264 A.P.R. 29, and the application on the ground of apprehension of bias in a judgment reported 105 N.B.R.(2d) 34; 264 A.P.R. 34. Ross appealed both judgments.

The New Brunswick Court of Appeal dismissed the appeal.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Reasonable apprehension of - In an ongoing and very controversial case the New Brunswick Minister of Labour appointed an experienced arbitrator as a Board of Inquiry under the Human Rights Act to inquire into a complaint against a public school teacher accused of preaching hatred against Jews - The teacher claimed a reasonable apprehension of bias because of the many public statements against him by provincial politicians (both government and opposition) and the Federal and New Brunswick Human Rights Commissioners - The New Brunswick Court of Appeal affirmed that there was no reasonable apprehension of systemic bias in the appointment of the Board of Inquiry - See paragraphs 18 to 54.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal - Bias - Institutional or systemic bias - [See Administrative Law - Topic 2088].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See Practice - Topic 9012].

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - Requirement of establishing factual foundation - The applicant raised a Charter issue on appeal, which had not been raised below and on which there was no evidence - The New Brunswick Court of Appeal refused to hear the Charter issue not only because it was not raised before the court of first instance, but also because no evidentiary basis had been laid on which it might be considered - See paragraphs 55 to 60.

Practice - Topic 4160

Discovery - General principles - When available - Action v. application - The Minister of Labour appointed a Board of Inquiry to inquire into a complaint that a school teacher was preaching hatred against Jews - The teacher challenged the Board of Inquiry on the ground of a reasonable apprehension of bias and applied to examine the Board, Minister of Labour and the Human Rights Commissioner - The New Brunswick Court of Appeal affirmed that examination was not available as of right to a party to an application (as opposed to an action) and affirmed refusal of leave to examine - See paragraphs 12 to 17.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not raised on application or at trial or in pleadings or prior proceedings - The appellant raised Charter issues on appeal which had not been pleaded or raised before the court of first instance - The New Brunswick Court of Appeal refused to consider the new issues - See paragraphs 55 to 56.

Cases Noticed:

Committee for Justice and Liberty Foundation v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115, appld. [para. 32].

MacBain v. Canadian Human Rights Commission, [1985] 1 F.C. 856; 62 N.R. 117 (F.C.A.), dist. [para. 33].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, consd. [para. 33].

Satiacum v. Minister of Employment and Immigration, [1985] 2 F.C. 430; 64 N.R. 358 (F.C.A.), consd. [para. 33].

Sethi v. Minister of Employment and Immigration, [1988] 2 F.C. 552; 87 N.R. 389 (F.C.A.), consd. [para. 33].

Mohammad v. Minister of Employment and Immigration, [1989] 2 F.C. 363; 91 N.R. 121 (F.C.A.), consd. [para. 33].

Re McGavin Toastmaster Ltd. and Powlowski (1973), 37 D.L.R.(3d) 100, consd. [para. 34].

Re Winnipeg Free Press Ltd. and Newspapers Guild, CLC, AFL-CIO (1974), 44 D.L.R.(3d) 274 (Man. C.A.), consd. [para. 42].

R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 Q.A.C. 161, consd. [para. 51].

E. & P. Holdings Limited v. Koffler Stores Limited (1981), 36 N.B.R.(2d) 658; 94 A.P.R. 658 (C.A.), appld. [para. 56].

McKay v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, appld. [para. 59].

Starr v. Houlden, [1990] 1 S.C.R. 1366; 110 N.R. 81; 41 O.A.C. 81; 68 D.L.R.(4th) 641, dist. [para. 61].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(a), sect. 2(b), sect. 7 [para. 55].

Human Rights Act, R.S.N.B. 1973, c. H-11, sect. 5 [para. 3].

Rules of Court (N.B.), rule 1.04, rule 32.02(1) [para. 14]; rule 38.09(b) [para. 15]; rule 39.02(1) [para. 17].

Counsel:

Malcolm Ross appeared in person;

No one appeared for the Board of School Trustees, District No. 15;

No one appeared for Human Rights Board of Inquiry;

Joseph E. Weir, for David Attis;

Joanne E. McLeod, Q.C., for the Human Rights Commission;

Gabriel Bourgeois, for the Minister of Labour;

C. Clyde Spinney, for the Minister of Education;

George P.L. Filliter, for the New Brunswick Teachers' Federation;

Joel Richler, for the Canadian Jewish Congress.

This case was heard on June 14, 1990, at Fredericton, N.B., before Stratton, C.J.N.B., Hoyt and Ryan, JJ.A., of the New Brunswick Court of Appeal.

On September 6, 1990, Stratton, C.J.N.B., delivered the following judgment for the Court of Appeal: