brenda e. seymour APPLICANT AND: town of spaniard’s bay FIRST RESPONDENT AND: NEWFOUNDLAND v. LABRADOR, 2018 NLSC 211

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Seymour v. Spaniard’s Bay (Town) , 2018 NLSC 211 Date : October 24, 2018 Docket : 201701G8470 BETWEEN: brenda e. seymour APPLICANT AND: town of spaniard’s bay FIRST RESPONDENT AND: NEWFOUNDLAND AND LABRADOR HUMAN RIGHTS COMMISSION SECOND RESPONDENT Before: Justice Deborah J. Paquette Place of Hearing: St. John's, Newfoundland and Labrador Date of Hearing: June 18, 2018

Appearances: John Brown Counsel for the Applicant A. Douglas Moores, Q.C. Counsel for the First Respondent Donna L. Strong Counsel for the Second Respondent Authorities Cited: CASES CONSIDERED: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10; O’Brien v.Newfoundland and Labrador (Human Rights Commission), 2014 NLTD(G) 8; Chiasson v. Happy Valley-Goose Bay (Town), 2011NLTD(G) 156; Tessier v. Nova Scotia (Human Rights Commission), 2014 NSSC 65; Manitoba v. Manitoba (Human RightsCommission) (1983), (MB CA), 2 D.L.R. (4th) 759, 25 Man. R. (2d) 117 (Man. C.A.); Wells v.

Quest OutreachSociety, 2010 BCHRT 15; Matheson v. Prince Edward Island (Human Rights Commission) 2001 PESCTD 88; Weir’s ConstructionLimited v. Warford (Estate), 2018 NLCA 5 STATUTES CONSIDERED: Human Rights Act, 2010, S.N.L. 2010, c. H-13.1 REASONS FOR JUDGMENT PAQUETTE, J.: INTRODUCTION [1] On 25 May 2017 Brenda Seymour filed a complaint with the Newfoundland and Labrador Human Rights Commission(“Commission”) alleging harassment based on gender by the Town of Spaniard’s Bay (“Town”) contrary to sections 9 and 17 of theHuman Rights Act, 2010, S.N.L. 2010, c.

H-13.1 (“Act”). [2] On 9 November 2017 the Executive Director dismissed her complaint as being outside the time limit prescribed by the Act. Ms. Seymour filed a notice of appeal with this Court.

Section 33 of the Act authorizes judicial review of the dismissal of a complaint. Ms. Seymour’s notice of appeal was considered an application for judicial review of the Executive Director’s decision. [3] Ms. Seymour submits that the Commission failed to properly investigate her complaint and in particular did not gatherevidence or information related to the continued contravention of her human rights.

She advances that the Executive Director’s findingthat her complaint was out of time, based on an insufficient record, denied her procedural fairness. [4] The Town submits that the Yetman Report and any associated public opinion adverse to Ms. Seymour do not constitutecontraventions of the Act on its part. It is advanced that procedural fairness does not arise and that deference must be shown to thedecision of the Executive Director on the issue of the Commission’s jurisdiction. ISSUES • Whether the Executive Director’s decision that the Act provides no jurisdiction to deal with Ms.

Seymour’s human rights compliantwas reasonable? • Whether Ms. Seymour was denied procedural fairness? STANDARD OF REVIEW AND STATUTORY FRAMEWORK [5] The decision of the Executive Director to dismiss the complaint is reviewed against a standard of reasonableness. Halifax(Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10. A breach of procedural fairness attracts a standardof correctness.

[ 6 ] The Executive Director’s statutory decision-making authority is set out in

section 32 of the Act : 32

(1) The executive director may, at any time before a complaint is referred to a board of inquiry under

section 34 , dismiss all or part of the complaint where the executive director is satisfied that (

a) this Act provides no jurisdiction to deal with the complaint or that part of the complaint; (

b) the complaint or that part of the complaint is trivial, frivolous, vexatious or made in bad faith; or (

c) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding.

(2) Where the executive director dismisses all or part of a complaint, the executive director shall serve the parties to the complaint with a written notice of and the reasons for the dismissal. [ 7 ] The time limit for filing a human rights complaint is found in subsection 25(2) of the Act : 25

(1) A person who has reasonable grounds for believing that a person has contravened this Act may file with the executive director a complaint in a form acceptable to the commission.

(2) A complaint made under subsection (1) shall be made within 12 months after the alleged contravention occurs or, in the case of a continuing contravention, within 12 months after the last incidence of the alleged contravention. [ 8 ] The prohibited ground of discrimination, gender and the prohibition against harassment in relation thereto are found in sections 9 and 17 of the Act : 9

(1) For the purpose of this Act , the prohibited grounds of discrimination are race, colour, nationality, ethnic origin, social origin, religious creed, religion, age, disability, disfigurement, sex, sexual orientation, gender identity, gender expression, marital status, family status, source of income and political opinion. 17 A person in an establishment shall not harass another person in the establishment on the basis of a prohibited ground of discrimination. [ 9 ] Case law provides that in fulfillment of its statutory powers, the Commission will assess the sufficiency of evidence in support of a complaint. In relation to the dismissal under subsection 32(1)(

a) the sufficiency of evidence would be found in the record available to the Executive Director at the time her decision was made. The Executive Director’s role pursuant to subsection 32(1)(

a) is not to adjudicate whether the facts establish a continuing contravention of the Act . Rather, her home statute directs that she decide whether or not there is a sufficient basis to find that the Commission lacks jurisdiction to deal with the complaint instead of referring it for further inquiry. Halifax (Regional Municipality) at paragraph 23 : …In deciding to refer a complaint to a board of inquiry, the Commission’s function is one of screening and administration, not of adjudication. BACKGROUND [ 10 ] In the fall of 2015, Ms.

Seymour, a volunteer firefighter with the Town, brought her concerns relating to gender harassment to the attention of the Town Manager. In November 2015 she disclosed the content of these allegations at a public meeting of the Town Council. [ 11 ] In response, a motion was made in Council to retain a professional human resources firm to study the allegations of workplace gender harassment. Ms. Seymour indicated that she welcomed this process. The motion was subsequently retracted however and instead, an investigation by Mr. Yetman, a retired police officer, was authorized. Ms.

Seymour declined to participate stating that she did not think that the investigation, carried out at the Town offices, would be impartial. The Yetman Report found that the behavior of the members of the Volunteer Fire Department did not constitute harassment, bullying or intimidation. [ 12 ] Ms. Seymour filed a Complaint Form with the Commission in late May 2017. Her allegations of discrimination may be

summarized as follows: Allegations 2010 – 2015 [ 13 ] She recites that she experienced gender harassment as a female firefighter due to a number of incidents in which she was treated unfairly in comparison to her male counterparts and exposed to harassing behaviours. These included an incident which occurred in 2010 - being suspended for “overstepping” boundaries in (

i) applying for funding for training; and (ii) discussing fire department business in her role as Town Councilor in a privileged council meeting. She was subsequently reinstated following input from the Department of Municipal Affairs which recommended the initiation of a process to examine her suspension. In 2011 she asserts that she was “belittled” by the Fire Chief for using her phone during a meeting despite the fact that other male members were using their phone at the same time; being told to “suck it up princess” and “grow a set”.

In 2013 she experienced derogatory remarks about the outline of her female physique in uniform. In 2014 she was subjected to being questioned by the Fire Chief as to how she could be considered a firefighter, met by the applause of members; and was present when a pornographic film was played during a training exercise. In 2015 she was told that a piece of equipment she needed to use “may have been jerked allover”. Allegations - February and March 2017 [ 14 ] Ms. Seymour’s Complaint Form sets out further incidents which she alleges constitute continuing contravention of the Act .

First, on 22 February 2017 she requested that the Town not publish the Yetman Report because she had not provided her side of the story and she stated that she had received a “backlash” from the public since its publication. She recounted that on one occasion in March 2017 a member of the public addressed the Council regarding the investigation and received a standing ovation after he “called her out” in his remarks. The Town did not take any steps to stop this activity, which she considered evidence of harassment by the Town against her.

Allegation - September 2017 [ 15 ] In email correspondence dated 3 October 2017, Ms. Seymour wrote to Ms. Hurley-Power, Legal Counsel/Mediator with the Commission advising her of further gender harassment concerns arising since she filed her Complaint Form in May 2017. She explained to Ms. Hurley-Power that she was defeated in the municipal election and in response to a Facebook post from an individual that: “The reign of Terror in Spaniard’s Bay has come to an end”, her Fire Chief posted publicly; “Stage one is complete, Stage two is in progress.” Ms.

Seymour stated: “I am considering his remarks to mean that my involvement with the Fire Department is part of this process, and it seemed to insinuate that stage two will mean that I am no longer part of the F.D. as well. It seemed to be threatening that a plan was in place and in progress to oust me out of the Department.” She further advised Ms. Hurley-Power that when she subsequently informed the Fire Chief that she had seen his remarks, he told her that “for the past nearly two years he has said nothing as to how he felt about what has taken place in our Town, but feels free to do so if he wishes.” Ms.

Seymour also wrote as follows to Ms. Hurley-Power: Needless to say, I’m astounded as to what has taken place & I need some guidance as to whether I should be reporting these incidents to the Investigator or whether I should just keep my own record and bring it forward at a later date. I am convinced this is the beginning of another battle, and I do feel very much threatened about my position in this Town’s Fire Department after the comments by the current Fire Chief. I do not feel that I can safely continue as a FireFighter now, but am reluctant to resign.

I feel his words, although he has now removed his post on Facebook, have already done their damage. The words have left a lot of doubt in my mind that I can safely work as a firefighter now. Feeling secure in the job is a great deal of the requirement to work as an Emergency Responder. The Chief’s comments have broken the trust that I thought was now established in our Department. I don’t feel safe, & I would ask that you could give me some guidance if possible? If you would, and it is permitted, could you forward this to the investigator of my case for her evaluation?

If not the right course, would you be able to give me some guidance as to what action I should take regarding the ongoing harassment in my Town? Thanks, Brenda Seymour [ 16 ] The Commission Record reveals that Ms. Hurley-Power forwarded the correspondence to Ms. Goodyear, the Human Rights Specialist assigned to Ms. Seymour: “This came in from Brenda Seymour. Not sure why she sent it to me instead of directly to you.” [ 17 ] There is no documentation in the Commission Record provided to the Court that either Ms. Hurley-Power or Ms. Goodyear acknowledged or replied to this email.

There is nothing in the Executive Director’s decision to indicate that she was aware of or had considered this further allegation of a continuing contravention involving the current Fire Chief or that it was investigated in anyway by

the Commission. She only addresses the February and March 2017 allegations, neither of which appear to have been investigated. [ 18 ] The Town responded to the complaint by way of correspondence dated 13 October 2017 from the Town’s legal counsel. The Town sought to have the complaint dismissed on the grounds that Ms. Seymour’s allegations of gender harassment had already been appropriately dealt with “in another proceeding” within the meaning of

section 32(

c) of the Act , referring to the Yetman investigation. The Town pointed out that in furtherance of its Sexual Harassment Policy, it had been proactive in appointing a veteran investigator and providing him with a broad terms of reference. Included with this response was the Yetman Report and its appendices. The Town advanced that Ms. Seymour’s refusal to participate in the Yetman investigation was fatal to her efforts to seek relief under the Act. [ 19 ] Email correspondence from the Commission to legal counsel for the Town dated 25 October 2017 advised him that the Executive Director would also be considering dismissal pursuant to subsection 32(1)(

a) of the Act in relation to a potential time limitation issue. The Town was granted up to 27 November 2017 to provide additional comments in relation to this ground of dismissal. Legal counsel replied by email advising that the Town would not be making any further submissions. [ 20 ] Correspondence to Ms. Seymour dated 26 October 2017, by registered mail to an incorrect address for her “P.O. Box XXX Bay Roberts” advised her that the Executive Director would also be considering the case under subsection 32(1)(

a) of the Act in relation to a potential time limitation issue. That correspondence stated that she had until 27 November 2017 to provide additional comments. Ms. Seymour’s appeal memorandum acknowledges that she received this correspondence. [ 21 ] Correspondence from Ms. Seymour dated 1 November 2017 to the Commission responds to the potential dismissal of her claim. She states that she is currently being subject to ongoing gender harassment.

She referred to the 28 September 2017 discussion with the Fire Chief as “my last recorded incident of intimidation to date but there have been others since the Report”. [ 22 ] Correspondence dated 9 November 2017 to legal counsel for the Town and separate correspondence of even date to Ms. Seymour from the Executive Director advised that the complaint had been dismissed as being outside the time limitation established by the Act , that is beyond “12 months after the last incidence of the alleged contravention” ( subsection 25(2) ).

The Executive Director wrote: According to your Complaint Form, since 2009 you have felt harassed as a female firefighter. In your complaint you cited specific incident of harassment occurring from early 2011 until 2015. It would appear that the alleged activities in the 2009-2015 were of the same character.

However, there are no further allegations of harassment by you until February 22, 2017 when you allege that five days before the release of the Investigation Report you voiced her (sic) concerns about releasing the report publically because you felt that it did not provide your side of the story as you had not participated in the investigation process. You allege that your concerns were dismissed by the Respondent as “ too bad” and it was also stated that “ you’re not getting anything else; you are not so happy that you’ve been exposed” and “ those men have families and you didn’t care when you went public”.

Further you allege that following the release of the Report you encountered backlash from the public at the March 2017 Council meeting which the Respondent did not do anything to stop. These incidents of “harassment” which you allege in February and March, 2017 are not of the same character as the preceding incidents in 2009-2015. The February and March 2017 incidents do not constitute gender harassment by the Respondent. They appear to be comments based on disagreement with the steps you had taken to bring your complaint forward.

They may be continuing consequences of your earlier alleged harassment between 2009-2015 but would not be separate acts of harassment. The 17 month gap between the earlier alleged events of harassment in 2009-2015 and the events of February and March 2017, in accordance with the cases cited above, is too great to constitute a continuing contravention. Even if the earlier events would have constituted harassment based on your gender, the long intervening gap does not support a case of continuing contravention and therefore the claim based on these complaints are statute-barred.

The more recent incidents in February and March 2017 were not of the same character and do not constitute separate acts of gender harassment to bring them within the jurisdiction of the Act . Therefore, your complaint is dismissed in accordance with section 32(1)(a) … [ 23 ] The Executive Director rejected the Town’s position that the Yetman investigation appropriately dealt with Ms. Seymour’s human rights complaint because Mr. Yetman did not have concurrent jurisdiction under the Act to determine human rights matters or to provide a remedy. Also, he could only make recommendations to the Town. As such, Ms.

Seymour’s complaint had not been appropriately dealt with in another proceeding. She made no reference to the further alleged contravention dated 28 September 2017 which had been brought to the attention of Ms. Hurley-Power and Ms. Goodyear and set out in Ms. Seymour’s response. ANALYSIS [ 24 ]

Section 32 of the Act empowers the Executive Director to determine whether or not a complaint falls within the jurisdiction of the Commission. There will be occasions when a complaint clearly discloses on its face and without the need for investigation, that it is not a matter falling within the jurisdiction of the Commission. The issue of concern to the individual in such cases may be better addressed in another forum.

Section 32 of the Act provides the Executive Director with the authority to dismiss these claims, thereby alleviating further pressures on the time the Commission can devote to human rights complaints. This power to dismiss a claim nonetheless engages procedural fairness and each complaint must be assessed on its unique facts.

[ 25 ] In the conduct of judicial review of a decision of the Executive Director, the Court will carefully consider the Commission Record. This is because this collection of documents sets out the information which was, or should have been brought to her attention in making her decision. In this case, this was the body of information which was available to the Executive Director at the time that she decided that there were no contraventions of the Act in relation to Ms. Seymour, within the 12 months’ limitation period.

The Commission Record, relied upon by the Court is assembled by the Commission. [ 26 ] The sufficiency of the Commission Record was noted in O’Brien v. Newfoundland and Labrador (Human Rights Commission) , 2014 NLTD(G) 8. In that case the record disclosed the results of interviews with the affected parties and a

summary of the investigation by the staff investigator. Orsborn, C.J. reviewed the correspondence which was before the Commission in making the decision not to refer the matter to a Board of Inquiry.

He remarked at paragraph 16: “The Commission conducted an investigation and compiled an extensive record of responses and replies with supporting documentation.” This was the basis upon which they made the decision not to refer the complaint to a board of inquiry, but instead to dismiss it. [ 27 ] Orsborn, C.J. explains the level of inquiry engaged in the dismissal of a complaint at paragraph 19: …And it is a question of assessing the sufficiency of evidence – from the record available to the Commission – for the purpose of proceeding to an inquiry; it is not a case of assessing the evidence to determine whether or not the complaint has been made out.

Essentially the Commission is assessing the evidence for the purpose of deciding whether or not an inquiry is warranted. [ 28 ] Orsborn, C.J. points out that the report of the investigating officer “fairly summarizes the facts, sets out the positions of both employee and employer and includes as attachments the complaint, replies, responses and the numerous written communications between the parties” (at paragraph 24). [ 29 ] The Commission’s Record here does not contain a

summary or report by the Human Rights Specialist. There is nothing to indicate that the most recent alleged harassment incident referred to in the email from Ms. Seymour dated October 2017 was even considered. Ms. Seymour repeated this allegation in her 1 November 2017 response to the potential dismissal of her claim under subsection 32(1)(a). There is no record of any follow up with the individual in question to better understand the context of the statement alleged to have been made and published on social media in late September 2017.

The incident is not addressed in the Executive Director’s decision dismissing her complaint. [ 30 ] In Chiasson v. Happy Valley-Goose Bay (Town) , 2011 NLTD(G) 156, the court considered the dismissal of a complaint pursuant to

section 32 of the Act . Stack, J. refers to the procedural fairness engaged in the exercise of the Executive Director’s decision- making authority to dismiss a human rights’ complaint pursuant to

section 32, writing at paragraphs 30 and 32: 30 According to Abella J., the answers to the three questions go to determining whether the substance of a complaint has been "appropriately dealt with", which is the language used in

section 32 of the Act ( Figliola at paragraph 37). Ms. Majid considered all three questions in exercising her discretion in dismissing the Complaint. She also adhered to the principles of procedural fairness. The named Respondents were given the opportunity to file their Replies and Mr. Chiasson provided a written response to them. Before dismissing the Complaint, she wrote to Mr. Chiasson and the Respondents setting forth

section 32 of the Act and indicting that the arbitration award had been reviewed and the Complaint was being considered for dismissal. As mentioned above, on January 25, 2011 , Mr. Chiasson responded to the executive director's letter and reiterated his complaint regarding his loss of seniority. 32 In dismissing Mr. Chiasson's complaint, did the executive director act reasonably? Yes she did. She reviewed the arbitration award in detail. Then, she advised all of the parties, including Mr. Chiasson, that they could respond to her indication that the Complaint was being considered for dismissal pursuant to

section 32 of the Act . Mr. Chiasson did so by his letter dated January 25, 2011 . Ms. Majid reviewed Mr. Chiasson's letter and determined that it provided no new information. Consequently, Ms. Majid concluded that the subject matter of the Complaint had been appropriately dealt with in the arbitration award, including the supplemental clarification, and dismissed the Complaint. She provided reasons for the dismissal as outlined above. [ 31 ] In Tessier v.

Nova Scotia (Human Rights Commission) , 2014 NSSC 65 , the Supreme Court of Nova Scotia considered procedural fairness in relation to the complaint of a former volunteer firefighter who alleged discrimination on the basis of sex and mental disability. LeBlanc, J. wrote at paragraphs 34 to 38: Procedural Fairness of the Investigation 34 The Commission serves a screening or gate-keeping function in determining which complaints to dismiss and which complaints to refer to a Board of Inquiry: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) , 2012 SCC 10 (S.C.C.) , at para 20 .

A decision by the Commission to dismiss a complaint under section 29(4) of the Act is an administrative decision to which specific rules of procedural fairness apply: Grover v. National Research Council of Canada , 2001 FCT 687 (Fed. T.D.), at para 52 . 35 Questions of procedural fairness are questions of law that are to be reviewed on a standard of correctness. No deference is due to the decision-maker. The task of this Court is to isolate specific requirements of procedural fairness and determine whether they have been met in the circumstances of the case at bar.

The decision-maker will either be found to have complied with the content of the duty of fairness applicable in the circumstances, or to have breached this duty: Sketchley v. Canada (Attorney General) , 2005 FCA 404 (F.C.A.) , at para. 53 .

36 In the context of human rights investigations, complainants are owed a duty of procedural fairness by both the investigatorgathering the evidence and crafting a report, and by the Commission in reaching its decision 37 It is well established that human rights Investigators are masters of their own procedure and are afforded broad discretion inchoosing who they interview and how they gather information: Slattery v. Canada (Human Rights Commission) (1994), (FC), 73 F.T.R. 161, [1994] 2 F.C. 574 (Fed. T.D.), at para. 69, affirmed (1996), 205 N.R. 383 (Fed. C.A.).

That broad discretion,however, must be exercised in accordance with the duty of procedural fairness owed to the complainant. 38 In Slattery, supra, Justice Nadon, as he then was, held that the duty of procedural fairness requires that human rightsinvestigations satisfy two criteria: neutrality and thoroughness: para. 49. He recognized that in determining the degree of thoroughnessrequired, one must balance the rights of individual parties to procedural fairness with the Commission's interests in maintaining aworkable and effective system.

Justice Nadon concluded as follows: 56 Deference must be given to administrative decision-makers to assess the probative value of evidence and to decide to furtherinvestigate or not to further investigate accordingly. It should only be where unreasonable omissions are made, for example where aninvestigator failed to investigate obviously crucial evidence, that judicial review is warranted. Such an approach is consistent with thedeference allotted to fact-finding activities of the Canadian Human Rights Tribunal by the Supreme Court in the case of Canada (Attorney General) v.

Mossop, (SCC), [1993] 1 S.C.R.554. … [32] At issue was whether certain key witnesses should have been interviewed. LeBlanc, J. noted that an investigator is not undera strict obligation to interview every witness that could offer useful information, underscoring that the investigator has a discretion (atparagraph 56). The Fire Chief and Deputy Chief had not been interviewed and were individuals cited by the complainant as involved inthe events alleged to be discriminatory. The court in Tessier found at paragraph 63: …Chief McLean and DC Burgess were both central to the allegations of discrimination.

A thorough investigation required more thanmerely accepting the contents of the HRM response at face value. A reasonable investigator would have recognized that additionalcrucial information could be gathered by conducting thorough and critically-minded interviews with Chief McLean and DC Burgess. Given the central importance of their version of events to the outcome of the investigation, such interviews were required for a thoroughinvestigation. [33] The court concluded at paragraph 65: 65 I find that Mr.

Desmond's failure to interview either Chief McLean or DC Burgess amounts to a breach of procedural fairnesspursuant to the test set out in Slattery, supra. This breach alone is sufficient to invalidate the investigation and render the Commissionersunable to make a proper screening determination on this case based on the sufficiency of the record before them. [34] Human rights jurisprudence has examined the meaning of a continuing contravention. [35] The decision of the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission) (1983), (MB CA), 2 D.L.R. (4th) 759, 25 Man. R. (2d) 117 (Man.

C.A.), is instructive in relation to the distinction between a continuingcontravention of the Act and events which are repercussions or consequences of a contravention of the Act. This case considered whethercomplaints of discrimination based on age were out of time. The complainants were forced to retire at the age of 65. Given that it wasthe termination of employment that was complained of this constituted the effective date. Their continued unemployment was aconsequence of the breach.

The effects or consequences of the termination of employment were ongoing, but they flowed from the“single act of alleged age discrimination” (at paragraph 20). The court explained continuing contravention at paragraph 19: What emerges from all of the decisions is that a continuing violation (or a continuing grievance, discrimination, offence or cause ofaction) is one that arises from a succession (or repetition) of separate violations (or separate acts, omissions, discriminations, offences oractions) of the same character (or of the same kind).

That reasoning, in my view, should apply to the notion of the “continuingcontravention” under the Act. To be a “continuing contravention”, there must be a succession or repetition of separate acts ofdiscrimination of the same character. There must be present acts of discrimination which could be considered as separate contraventionsof the Act, and not merely one act of discrimination which may have continuing effects or consequences. [36] At paragraphs 38 of Wells v.

Quest Outreach Society, 2010 BCHRT 15, the Human Rights Tribunal addressed continuouscontravention in the human rights context: 38 In determining whether there is a continuing contravention, the Tribunal must consider all relevant circumstances to ensure notonly that individuals who claim discrimination are provided access to the remedial provisions of the Code, but also that respondents are

treated fairly: Dove v. Greater Vancouver (Regional District), 2006 BCHRT 374 (B.C. Human Rights Trib.), para. 20. [37] In Matheson v. Prince Edward Island (Human Rights Commission), 2001 PESCTD 88, the decision of the Executive Directorto dismiss a complaint as being outside the limitation period was found to be unreasonable on judicial review. [38] The complainant in Matheson alleged gender discrimination arising from events which occurred in July 1996. Her complaintwas filed in 1998 and was dismissed by the Executive Director and on review by the Commissioner, as being statute-barred.

Thecomplainant argued that the alleged contravention continued to occur after July 1996. [39] Matheson, J. discussed the role of the Commission at paragraph 17: 17 The role of the Human Rights Commission was reviewed by DesRoches, CJ in Ayangma v. Prince Edward Island (Human RightsCommission), [2001] P.E.I.J. No. 54 (P.E.I. T.D.), May 16, 2001, where he quoted LaForest J. writing on behalf of the court in Cooperv.

Canada (Human Rights Commission) (1996), (SCC), 140 D.L.R. (4th) 193 (S.C.C.) at pp.215-216) as follows: ... [53] The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether acomplaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of ajudge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decideif, under the provisions of the Act, an inquiry is warranted having regard to all the facts.

The central component of the Commission'srole, then, is that of assessing the sufficiency of the evidence before it. … [40] Matheson, J. disagreed with the Executive Director’s analysis of the record before him, writing at paragraph 28 and 29: 28 …To bring herself within the time limit of the statute the applicant must have shown some evidence to indicate that there werecontinuing contraventions of the act as opposed to continuing repercussions from the original breach complained of. However, thereference to "reprisals" has a different meaning from repercussions or consequences.

It connotes specific acts of retaliation which may ormay not constitute violations of the statute. The allegation of reprisals raised by the complainant in her letter to the Chairperson shouldhave alerted him to the possibility of further contraventions of the Act and led him to inquire as to the nature and time of the allegedreprisals.

If he had done so he could have determined if there was a reasonable basis for proceeding to the next stage in the process. 29 Accordingly, I find the Chairperson erred in failing to inquire as to the nature and time of the alleged reprisals referred to by thecomplainant, and in so doing failed to perform his duty as required on a review of the Executive Director's decision, under the Act.

Thematter is referred back to the Chairperson for further inquiry and review. [41] Having considered the circumstances here, I find that the Executive Director’s decision was unreasonable given her failure toconsider or inquire into the allegation of contravention of the Act as late as 28 September 2017, despite it being clearly stated on theRecord. The reference to a “Stage two” involving Ms. Seymour is subject to an

interpretation suggestive of an outcome includingreprisal and is not isolated to mere repercussions or consequences of a previous incident of gender harassment. Ms. Seymour referred toit as “intimidation” causing her to feel “threatened” about her position as a volunteer firefighter. As with the court’s reasoning inMatheson, I am persuaded that these words used by the Fire Chief could connote the possibility of actions which may or may notconstitute gender harassment when considered in the context of the other allegations set out in the Complaint Form, yet this was neverfollowed up with him or others.

Had there been an appropriate investigation, the Executive Director may have determined that there wasa basis for the Commission having jurisdiction to proceed to the next stage of inquiry as established by the Act. This omission removesthe decision from the “range of possible, acceptable outcomes which are defensible in respect of the facts and the law”, Weir’sConstruction Limited v. Warford (Estate), 2018 NLCA 5 at paragraph 29. [42] Further, the absence of follow-up or investigation in relation to the allegation fails to adhere to the requirements for proceduralfairness.

This breach alone is sufficient to preclude a proper decision on the basis of the sufficiency of the Record. CONCLUSION

[ 43 ] The application for judicial review is upheld. The decision of the Executive Director to dismiss Ms. Seymour’s complaint as outside the jurisdiction of the Act is quashed. Ms. Seymour’s human rights complaint against the Town is remitted back to the Commission for reconsideration after an appropriate investigation. [ 44 ] Ms. Seymour requested that the Court order monetary compensation against the Town; order that the Town make a public apology to her; and order that the Yetman Report be withdrawn from publication on the Town’s website.

Such relief is not available in an application for judicial review. [ 45 ] The Commission maintained a watching brief in these proceedings, with legal counsel available to the Court should questions pertaining to the Commission’s process or procedures arise. Ms. Seymour and the Town were both represented by legal counsel and advanced conflicting positions. In the exercise of my discretion as to the award of costs, Ms.

Seymour shall have her costs of this application for judicial review against the Town in accordance with column 3 of the scale of costs set out in the appendix to Rule 55. _____________________________ deborah j. paquette Justice