Smith v. New Brunswick (Department of Public Safety) et al., (2012) 397 N.B.R.(2d) 1 (CA)

• Judge: Turnbull, Robertson and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: Thursday January 26, 2012
• Jurisdiction: New Brunswick
• Citations: (2012), 397 N.B.R.(2d) 1 (CA);2012 NBCA 41

Smith v. N.B. (2012), 397 N.B.R.(2d) 1 (CA);

    397 R.N.-B.(2e) 1; 1028 A.P.R. 1

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: [2012] N.B.R.(2d) TBEd. NO.002

Renvoi temp.: [2012] N.B.R.(2d) TBEd. NO.002

John Smith (appellant) v. Province of New Brunswick (Department of Public Safety) (respondent) and New Brunswick Human Rights Commission (respondent)

(99-11-CA; 2012 NBCA 41)

Indexed As: Smith v. New Brunswick (Department of Public Safety) et al.

Répertorié: Smith v. New Brunswick (Department of Public Safety) et al.

New Brunswick Court of Appeal

Turnbull, Robertson and Green, JJ.A.

January 26, 2012.

Summary:

Résumé:

Smith applied for an order to quash a decision of the New Brunswick Human Rights Commission dismissing his complaint of alleged discrimination on the basis of physical disability and mental disability. In the alternative, he asked that the investigation be reopened, that other people be examined and other reports considered.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 377 N.B.R.(2d) 84; 972 A.P.R. 84, dismissed the application. Smith appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Administrative Law - Topic 548

The hearing and decision - Decisions of the tribunal - Reasons for decision - When not required - Smith applied for an order to quash a decision of the New Brunswick Human Rights Commission dismissing his complaint of alleged discrimination - The application judge dismissed the application - On appeal, Smith submitted, inter alia, that the Commission's decision to dismiss his complaint was not supported by sufficient reasons - The Commission's dismissal letter was two paragraphs long and did not contain anything that would explain why it had held the complaint to be without merit - The New Brunswick Court of Appeal held that, in the circumstances, the tribunal had provided no reasons - However, the Commission was not obligated to provide reasons for its decision to dismiss a complaint, provided the decision was consistent with any views expressed by the investigator and the record presented to the Commission - See paragraphs 9 to 15.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decision - Sufficiency of - Smith applied for an order to quash a decision of the New Brunswick Human Rights Commission dismissing his complaint of alleged discrimination - The application judge dismissed the application - Smith appealed on the ground, inter alia, that the application judge failed to deal with his allegation that he had been subjected to discriminatory treatment based on a perception that he had a mental disability - The New Brunswick Court of Appeal stated that "It is true the application judge did not deal with this issue in his reasons, most likely for the reason the issue lacks an air of reality. In Newfoundland and Labrador Nurses' Union [2011 SCC], Abella J. [writing for a unanimous court] made an incisive comment in response to another issue, but which is instructive to both counsel and judges: 'This process would be paralyzed if arbitrators were expected to respond to every argument or line of possible analysis' ... . Justice Abella was referring to the arbitration process, but the observation is equally applicable to investigators ... and to judges sitting on applications for judicial review or on appeal." - See paragraph 18.

Civil Rights - Topic 981

Discrimination - Employment - General - [See Civil Rights - Topic 989].

Civil Rights - Topic 989

Discrimination - Employment - On basis of physical or mental disability - Smith worked for the Province as a corrections officer at a correctional centre - He applied for an order quashing a decision of the New Brunswick Human Rights Commission dismissing his complaint of alleged discrimination on the basis of physical disability and mental disability - Smith argued that the matters in issue amounted to harassment because of his being on light duties in an accommodated position in the control room and because of his physical disability of his back injury - Thus, he saw it as something that fell within the scope of the Human Rights Act and the Commission's jurisdiction - The Commission saw Smith's complaint as being about harassment in the workplace, not about physical disability - The application judge dismissed the application - Smith was in effect asking the court to enlarge the Commission's jurisdiction to include complaints of workplace harassment to the protections of the Human Rights Act - Uncertainty remained after detailed investigation and reports - The Commission adopted the investigator's view - Specific allegations were not proven to relate to the complainant's physical disability - Smith had not shown on the reasonableness standard of review that the Commission erred - Smith appealed - The New Brunswick Court of Appeal dismissed the appeal.

Civil Rights - Topic 7105

Federal, provincial or territorial legislation - Practice - Parties - The New Brunswick Court of Appeal discussed when the New Brunswick Human Rights Commission might have standing as a party or intervener on judicial review or on an appeal - See paragraphs 20 to 24.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review - [See Civil Rights - Topic 7105].

Civil Rights - Topic 7117

Federal, provincial or territorial legislation - Practice - Appeals - [See Civil Rights - Topic 7105].

Practice - Topic 9228

Appeals - New trials - Grounds of appeal - Reasons for judgment insufficient - [See Administrative Law - Topic 549].

Droit administratif - Cote 548

Audience et décision - Décisions du tribunal - Motifs - Motivation non nécessaire - [Voir Administrative Law - Topic 548].

Droit administratif - Cote 549

Audience et décision - Décisions du tribunal - Motifs suffisants - [Voir Administrative Law - Topic 549].

Droits et libertés - Cote 981

Discrimination - Emploi - Généralités - [Voir Civil Rights - Topic 981].

Droits et libertés - Cote 989

Discrimination - Emploi - Discrimination fondée sur une incapacité physique ou mentale - [Voir Civil Rights - Topic 989].

Droits et libertés - Cote 7105

Législation fédérale, provinciale ou territoriale - Procédure - Parties - [Voir Civil Rights - Topic 7105].

Droits et libertés - Cote 7115

Législation fédérale, provinciale ou territoriale - Procédure - Révision judiciaire - [Voir Civil Rights - Topic 7115].

Droits et libertés - Cote 7117

Législation fédérale, provinciale ou territoriale - Procédure - Appels - [Voir Civil Rights - Topic 7117].

Procédure - Cote 9228

Appels - Nouveaux procès - Motifs - Insuffisance des motifs du juge du procès - [Voir Practice - Topic 9228].

Cases Noticed:

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 9].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 9].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 9].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 9].

R. v. Walker (B.G.), [2008] 2 S.C.R. 245; 375 N.R. 228; 310 Sask.R. 305; 423 W.A.C. 305; 2008 SCC 34, refd to. [para. 9].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 9].

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, appld. [para. 10].

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. 10].

Canada Post Corp. v. Public Service Alliance of Canada et al. (2010), 399 N.R. 127; 2010 FCA 56, revd. [2011] 3 S.C.R. 572; 423 N.R. 117; 2011 SCC 57, refd to. [para. 11].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 12].

New Brunswick (Attorney General) v. Dominion of Canada General Insurance (2010), 366 N.B.R.(2d) 105; 942 A.P.R. 105; 2010 NBCA 82, refd to. [para. 13].

New Brunswick (Attorney General) v. Pembridge Insurance Co. et al. (2011), 368 N.B.R.(2d) 134; 949 A.P.R. 134; 2011 NBCA 2, refd to. [para. 13].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 14].

New Brunswick v. Human Rights Commission (N.B.) (2010), 360 N.B.R.(2d) 283; 930 A.P.R. 283; 2010 NBCA 40, refd to. [para. 14].

United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction Ltd. et al. (2002), 249 N.B.R.(2d) 93; 648 A.P.R. 93; 2002 NBCA 27, consd. [para. 21].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 22].

Children's Lawyer for Ontario v. Goodis et al. (2005), 196 O.A.C. 350 (C.A.), refd to. [para. 24].

British Columbia Teachers' Federation et al. v. Information and Privacy Commissioner (B.C.) et al., [2005] B.C.T.C. 1562; 2005 BCSC 1562, refd to. [para. 24].

Leon's Furniture Ltd. v. Information and Privacy Commissioner (Alta.) et al. (2011), 502 A.R. 110; 517 W.A.C. 110; 2011 ABCA 94, refd to. [para. 24].

Counsel:

Avocats:

Kelly T. VanBuskirk and David M. Brown, for the appellant;

Andrea M. Folster, for the respondent, Province of New Brunswick (Department of Public Safety);

Chantal Gauthier, for the respondent, New Brunswick Human Rights Commission.

This appeal was heard and orally decided on January 26, 2012, by Turnbull, Robertson and Green, JJ.A., of the New Brunswick Court of Appeal. Robertson, J.A., delivered the following written reasons for judgment for the court, in both official languages, on April 26, 2012.