Tessier v. Human Rights Commission (N.S.) et al., (2014) 345 N.S.R.(2d) 215 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 27, 2014
• Jurisdiction: Nova Scotia
• Citations: (2014), 345 N.S.R.(2d) 215 (SC);2014 NSSC 189

Tessier v. HRC (2014), 345 N.S.R.(2d) 215 (SC);

    1092 A.P.R. 215

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. MY.056

Liane Elizabeth Tessier (applicant) v. Nova Scotia Human Rights Commission, Nova Scotia (Attorney General) and Halifax Regional Municipality (respondents)

(Hfx No. 390961; 2014 NSSC 189)

Indexed As: Tessier v. Human Rights Commission (N.S.) et al.

Nova Scotia Supreme Court

LeBlanc, J.

May 27, 2014.

Summary:

A female volunteer firefighter (Tessier) with the Halifax Regional Municipality (HRM) filed a complaint of discrimination based on sex and mental disability respecting how she, and other female firefighters, were treated by male firefighters. The Human Rights Commission assigned an investigator, who recommended that the discrimination complaint be dismissed under s. 29(4)(b) of the Human Rights Act for insufficient evidence to support the allegations. The Commission, performing its gate-keeping function, adopted the recommendation and dismissed the complaint without a hearing. Tessier applied for judicial review to quash the decision.

The Nova Scotia Supreme Court, in a judgment reported (2014), 341 N.S.R.(2d) 201; 1081 A.P.R. 201, quashed the Commission's decision and remitted the complaint to the Commission for reconsideration after a fresh investigation conducted by an investigator having no contact with Tessier's complaint file. Tessier was denied procedural fairness in the investigation of her complaint. Tessier sought costs against the Commission and the HRM.

The Nova Scotia Supreme Court awarded Tessier lump sum costs of $10,000 plus disbursements of $518.34. The Commission and the HRM were equally liable for costs.

Administrative Law - Topic 3349

Judicial review - Practice - Costs - The Nova Scotia Supreme Court stated that "Generally, costs against an administrative decision-maker will only be ordered in unusual or exceptional circumstances. That being said, costs have been awarded where there has been a breach of procedural fairness or other misconduct on the decision-maker's part, or where it has demonstrated a notable lack of diligence." - See paragraph 11.

Administrative Law - Topic 3349

Judicial review - Practice - Costs - A female volunteer firefighter with the Halifax Regional Municipality (HRM) filed a complaint of discrimination based on sex and mental disability respecting how she, and other female firefighters, were treated by male firefighters - The Human Rights Commission assigned an investigator - After several extensions, the HRM consultant taxed with preparing the response of the Chief and Deputy Chief failed to file a response or seek further extensions - The investigator advised Tessier that the allegations of discrimination would be considered unchallenged due to the lack of a response - However, the investigator then contacted the consultant for information and offered a further extension to file a response, which the consultant did - The investigator advised Tessier that a response was received and more witnesses needed to be interviewed - Several months later, the investigator left HRM employment - The file was transferred to a new investigator - Nothing was done on the file for 1.5 years - The Chief and Deputy Chief were never interviewed - The investigator prepared a report recommending that the discrimination complaint be dismissed under s. 29(4)(b) of the Human Rights Act for insufficient evidence to support the allegations - The Commission, performing its gate-keeping function, adopted the recommendation and dismissed the complaint without a hearing - Tessier's application for judicial review to quash the decision was allowed and the matter was remitted for reconsideration following a fresh investigation - Tessier was denied procedural fairness where the Chief and Deputy Chief, key witnesses who had obviously crucial evidence, were not interviewed by the investigator - Tessier sought costs against the Commission and the HRM - The Nova Scotia Supreme Court held that "it would be contrary to the public interest for the Commission to avoid liability for costs in situations where it has mishandled a complaint to the degree seen in this case" - The Commission and the HRM were jointly liable for lump sum costs of $10,000 plus disbursements of $518.34 - Tessier's legal costs approximated $20,000 - Awarding Tariff costs would not provide substantial indemnity as the most that could be awarded using the maximum multiplier (4) would be $8,000.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See second Administrative Law - Topic 3349 ].

Practice - Topic 7134

Costs - Party and party costs - Disbursements - Photocopies, scanning or printing - The Nova Scotia Supreme Court stated that "Photocopy charges fall within the scope of recoverable disbursements, but only as they relate to materials sent to the court or to the other parties. Copies sent to the client or prepared for internal use are normally not recoverable." - See paragraph 29.

Cases Noticed:

Pink v. Davis (2011), 304 N.S.R.(2d) 338; 960 A.P.R. 338; 2011 NSSC 237, refd to. [para. 12].

St. Peters Estates Ltd. v. Land Use Commission (P.E.I.) (1991), 93 Nfld. & P.E.I.R. 45; 292 A.P.R. 45 (P.E.I.T.D.), refd to. [para. 13].

Cowan et al. v. Aylward et al. (2001), 193 N.S.R.(2d) 111; 602 A.P.R. 111; 2001 NSSC 51, refd to. [para. 15].

Morrison Estate v. Nova Scotia (Attorney General) (2012), 323 N.S.R.(2d) 37; 1025 A.P.R. 37; 2012 NSSC 386, refd to. [para. 19].

Marsh v. Paquette (2011), 300 N.S.R.(2d) 301; 950 A.P.R. 301; 2011 NSSC 70, refd to. [para. 19].

Campbell v. Jones et al. (2001), 197 N.S.R.(2d) 212; 616 A.P.R. 212; 2001 NSSC 139, refd to. [para. 19].

Salman v. Al-Sheikh Ali (2011), 299 N.S.R.(2d) 308; 947 A.P.R. 308; 2011 NSSC 30, refd to. [para. 19].

MacIntyre v. Cape Breton District Health Authority (2010), 290 N.S.R.(2d) 300; 920 A.P.R. 300; 2010 NSSC 170, refd to. [para. 19].

Halifax Regional Municipality Pension Committee v. Superintendent of Pensions (N.S.) et al. (2005), 248 N.S.R.(2d) 38; 789 A.P.R. 38; 2005 NSSC 228, refd to. [para. 19].

Bevis et al. v. CTV Inc. et al. (2004), 228 N.S.R.(2d) 34; 723 A.P.R. 34; 2004 NSSC 209, refd to. [para. 20].

Williamson v. Williams et al. (1998), 223 N.S.R.(2d) 78; 705 A.P.R. 78 (C.A.), refd to. [para. 22].

Peach v. Nova Scotia (Minister of Transportation and Infrastructure Renewal), [2010] N.S.R.(2d) Uned. 137; 2010 NSSC 207, refd to. [para. 24].

Xceed Mortgage Corp. et al. v. Jesty, [2014] N.S.R.(2d) Uned. 18; 2014 NSSC 51, refd to. [para. 29].

Drummond v. Grafton-Connor Property Inc. et al. (2014), 340 N.S.R.(2d) 317; 1077 A.P.R. 317; 2014 NSSC 52, refd to. [para. 30].

MacQueen et al. v. Nova Scotia et al., [2012] N.S.R.(2d) Uned. 346; 2012 NSSC 461, refd to. [para. 31].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2013 looseleaf), vol. 2, p. 5:2560 [para. 11].

Counsel:

Angela Walker, for the applicant;

Lisa Teryl, for the respondent, N.S. Human Rights Commission;

Karen MacDonald, for the respondent, Halifax Regional Municipality.

This matter was heard before LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment on May 27, 2014.