NEWFOUNDLAND v. LABRADOR HUMAN RIGHTS COMMISSION, 2022 NLSC 124

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Newfoundland and Labrador (Human Rights Commission) v. Roy , 2022 NLSC 124 Date : August 9, 2022 Docket : 202101G5589 Between: NEWFOUNDLAND AND LABRADOR HUMAN RIGHTS COMMISSION Appellant And: KAGAN ROY First Respondent And: GANDER FLIGHT TRAINING Second Respondent Before: Justice Alexander MacDonald On Appeal From: A Decision of Valerie A. Hynes, Q.C., Board of Inquiry adjudicator, pursuant to section 42(1) of the Human Rights Act, 2010 , S.N.L. 2010, c. H-13.1 , File # 14-9153, dated October 1, 2021. Place of Hearing: St.

John’s, Newfoundland and Labrador Date of Hearing: May 30, 2022 Appearances: Donna L. Strong Appearing on behalf of the Appellant

Kyle R. Rees Appearing on behalf of the First Respondent Shane R. Belbin Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Housen v. Nikolaisen, 2002 SCC33; Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 S.C.R. 27; O’Brien v. Newfoundland and Labrador (Human RightsCommission), 2014 NLTD(G) 8; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10; Cooper v.Canada (Human Rights Commission), (SCC), [1996] 3 S.C.R. 854 STATUTES CONSIDERED: Human Rights Act, 2010, S.N.L. 2010, c.

H-13.1; Canadian Aviation Regulations, S.O.R./96-433;Aeronautics Act, R.S.C. 1985, c. A-2; Canadian Human Rights Act, R.S.C., 1985, c. H-6;

Interpretation Act, R.S.N.L. 1990, c. I-19;Public Inquiries Act, 2006, S.N.L. 2006, c. P-38.1 REASONS FOR JUDGMENT MacDonald J.: INTRODUCTION [1] This is an appeal from a decision of a Board of Inquiry adjudicator appointed under the Human Rights Act, 2010, S.N.L. 2010,c. H-13.1 (“Act”). The adjudicator decided that she lacked the legislative authority to decide on the jurisdiction of the Newfoundland andLabrador Human Rights Commission (“Commission”) to hear a matter. [2] Mr.

Roy filed a complaint (“Complaint”) with the Commission because he says Gander Flight Training discriminated againsthim when he was in its flight training school. The Commission referred the Complaint to a Board of Inquiry under

section 34 of the Act,and to the chief adjudicator under

section 35 of the Act. [3] Gander Flight Training filed a preliminary objection with the adjudicator. It said that the adjudicator did not have thejurisdiction to deal with the Complaint because Gander Flight Training operated a federally regulated training unit, governed by theCanadian Aviation Regulations, S.O.R./96-433 under the Aeronautics Act, R.S.C. 1985, c. A-2. [4] It said that Transport Canada issued an operating certificate for the school and thus the school is a federally regulatedundertaking. It said that Mr.

Roy should have made his human rights complaint under the Canadian Human Rights Act, R.S.C. 1985, c.H-6. [5] In October 2021, the adjudicator ruled on Gander Flight Training’s preliminary application. She said: (a) “… I have determined that this Board of Inquiry lacks the legislative authority to make a determination on matters such asjurisdiction of the … Commission.

A review of the legislation finds that the jurisdiction for these decisions [lies] with the ExecutiveDirector of the Commission prior to appointing a Board of Inquiry to determine the merits of the complaint.” (paragraph 10); and (b) “… I have determined that the Board of Inquiry is not the appropriate forum to make determinations with respect to jurisdictionand that the Act makes it very clear, this is the exclusive role of the Executive Director prior to the involvement of the Board of Inquiry.”(paragraph 18). [6] The Commission appealed this decision. I am therefore to decide: (

a) what standard of review should I apply to the appeal? (

b) does a Board of Inquiry adjudicator have the power to decide jurisdictional issues? [7] I find that the standard of review is correctness and that a Board of Inquiry adjudicator has the authority to decide uponjurisdictional issues. I will now explain why I made these decisions. I will first deal with the standard of review.

What Standard of Review Should I Apply to the Appeal? [8] All parties and I agree that the standard of review is correctness. This is a statutory appeal under

section 42 of the Act. TheSupreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, directs that where there is astatutory appeal provided for in the legislation, the appellant standard of review applies to the decision of the Board of Inquiry. [9] A question as to whether a Board of Inquiry adjudicator can determine her jurisdiction is a question of law. The standard ofreview is correctness and I am free to replace the opinion of the Board of Inquiry adjudicator with my own (Housen v. Nikolaisen, 2002SCC 33 at para. 8).

Does a Board of Inquiry Adjudicator have the Power to Decide Jurisdictional Issues? [10] I now turn to whether a Board of Inquiry adjudicator has the power to decide jurisdictional issues. I find that the adjudicator hasthis power. I will now explain why I made this decision. [11] This is a question of judicial

interpretation. The Supreme Court of Canada discussed the approach to statutory

interpretation inthe context of human rights legislation in Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 S.C.R. 27 at para. 21, and saidthat there is only one approach to statutory

interpretation. I must read the words of

an Act in their entire context, in their grammatical andordinary sense, harmoniously with the scheme of the Act, the objectives of the Act and the intention of the legislature. [12] Furthermore,

section 16 of the

Interpretation Act, R.S.N.L. 1990, c. I-19, provides that, “Every Act and every regulation andevery provision of

an Act or regulation shall be considered remedial and shall receive the liberal construction and

interpretation that bestensures the attainment of the objects of the Act, regulation, or provision according to its true meaning.” [13] I will first review the statutory scheme for the Commission’s adjudication of human rights complaints. Statutory Scheme [14] Under

section 26 of the Act, the Executive Director first attempts to mediate and settle the complaint. If she is unsuccessful, theExecutive Director under

section 27 shall “review and investigate a complaint to the extent the executive director … considers warrantedin the circumstances”. [15] The Executive Director under section 32(1)(

a) may, at any time before a complaint is referred to a board of inquiry, dismiss allor part of the Complaint where she is satisfied that the Act provides no jurisdiction to deal with the Complaint. She must provide reasonsfor any dismissal. A party may apply to the Supreme Court of Newfoundland and Labrador for a judicial review of the dismissal.

Thelegislature gave this power to the Executive Director by amendment in 2010. [16] However, the Act does not provide that the Executive Director give reasons for a decision not to dismiss for lack of jurisdiction.Nor does a party have a right to apply to the Supreme Court of a judicial review for such a decision. [17] If the Executive Director does not dismiss the Complaint under section 32(1)(a), the “Commission,” presumably through theExecutive Director, under section 34(1) refers the Complaint to a Board of Inquiry adjudicator for a hearing. [18] The Board of Inquiry adjudicator, under

section 38, shall inquire into the complaint “without undue delay” and give all parties“full opportunity … to present evidence and make representations”. The Board of Inquiry has the powers of the Commission appointedunder the Public Inquiries Act, 2006, S.N.L. 2006, c. P-38.1. I will now turn to the Executive Director’s application of the statutoryscheme. Application of Statutory Scheme [19] Here, the Executive Director investigated the Complaint, but did not dismiss it under section 32(1)(a). She, instead, referred theComplaint to the Board of Inquiry adjudicator.

The Board of Inquiry adjudicator then made her decision on the preliminary motion ofGander Flight Training. [20] Mr. Roy argues that under section 32(1)(

a) of the Act, the Executive Director has the exclusive authority to decide if theCommission has the jurisdiction to hear the human rights complaint. He says that the Executive Director cannot refer this jurisdictionaldecision to the Board of Inquiry, nor can the Board of Inquiry make that decision. He, in effect, says that

section 32 should be read as,the executive director “shall”, at any time before a complaint is referred to a board of inquiry. [21] Therefore, if the Executive Director decides that there is no jurisdiction, she must dismiss the human rights complaint pursuantto section 32(1)(

a) of the Act. She must provide parties with the written reasons for the dismissal. If she does not do so, says Mr. Roy,she has decided that the Commission has jurisdiction. [22] Aggrieved parties of the Executive Director’s decision to accept jurisdiction, says Mr. Roy, can file a common-law judicialreview of that decision because there is no equivalent statutory right for judicial review provided for under

section 33 of the Act for thedecision not to dismiss. [23] Mr. Roy says that once the Executive Director accepts jurisdiction and refers the Complaint to the Board of Inquiry, the Boardof Inquiry then, under section 38(2) of the Act, “shall inquire into the matters referred to it and give full opportunity to all parties topresent evidence and to make representations”. He says there is no option for the Board of Inquiry to refuse its mandate and dismiss thematter for lack of jurisdiction. [24] Counsel for the Commission and Gander Flight Training disagree. [25] They argue that there is no justification to conclude that the Executive Director has the exclusive right to determine the

Commission’s jurisdiction. The Executive Director may dismiss the appeal under section 32(1) of the Act, but she has no obligation to doso. Counsel argue that if the legislature intended that the Executive Director must dismiss for lack of jurisdiction under section 32(1)(a),it would have said so, by using the word shall, rather than may. [26] I will now apply the Rizzo principles and

section 42 of the

Interpretation Act to the

interpretation of the Act.

Interpretation of the Act [27] I find that section 32(1) of the Act is a screening mechanism. The Executive Director may, but is not compelled to, dismiss allor part of the Complaint, if she is satisfied that the Act provides no jurisdiction for the Commission to deal with the Complaint. Thesection does not require the Executive Director to conduct a hearing. It suggests that the Executive Director will use this mechanismwhen the lack of jurisdiction is obvious. [28] If the legislature intended that the Executive Director have exclusive authority to determine jurisdiction, it would haveexpressly said so.

It would have placed similar obligations on the Executive Director for both a decision to dismiss for no jurisdiction,and a decision to refer to the Board of Inquiry with jurisdiction. [29] In either case: (1) it would have required that the Executive Director give written reasons for her decision; and (2) it wouldhave allowed aggrieved parties a review or appeal. However, the legislature did not do so. [30] I also find support for this

interpretation in the other reasons the legislature gave the Executive Director in section 32(1) the Actto allow a dismissal. The first is when the complaint is “trivial, frivolous, vexatious or made in bad faith”. The second is when the“substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding”. A dismissal for eitherof these grounds, as for dismissal for lack jurisdiction, may not require a hearing. [31] Some jurisdictional issues are complex.

Here, the parties raise constitutional division of powers and the interrelationshipbetween the province’s constitutional jurisdiction over education and Canada’s jurisdiction over aeronautics. [32] I find it likely that the legislature intended that such complex issues are best resolved after a hearing, where parties can adduceevidence and make arguments. This is the role of an adjudicator, not the Executive Director. [33] This

interpretation is consistent with the case of O’Brien v. Newfoundland and Labrador (Human Rights Commission), 2014NLTD(G) 8, where Orsborn C.J. while interpreting

section 34, quoted at paragraph 21, with approval, Cromwell J.’s comments inHalifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10. [34] Cromwell J. said at paragraph 23, “What is important here is that a decision to refer a complaint to a board of inquiry is not adetermination that the complaint is well founded or even within the purview of the Act. Those determinations may be made by the boardof inquiry. In deciding to refer a complaint to a board of inquiry, the Commission's function is one of screening and administration, not ofadjudication.” [35] Furthermore, the legislature gave parties, under

section 42 of the Act, a right to appeal a decision of the Board of Inquiry.

Thisright arises whether the Board of Inquiry decides it has or does not have jurisdiction. [36] I find it unlikely that the legislature intended to allow the Executive Director, exclusively, to decide that the Commission hasjurisdiction but failed to give parties an express remedy to appeal or review that decision. [37] I find that the legislature did not diminish the power of the Board of Inquiry adjudicator to deal with jurisdiction, when itenacted the 2010 amendment, allowing the Executive Director the power to dismiss a complaint for lack of jurisdiction. [38] The Board of Inquiry had the jurisdiction to decide jurisdictional matters prior to the 2010 amendment.

Lamer C.J.C. in Cooperv. Canada (Human Rights Commission), (SCC), [1996] 3 S.C.R. 854, said at paragraph 46, “… the power to considerquestions of law can be bestowed on an administrative tribunal either explicitly or implicitly by the legislature.” [39] In Cooper, Lamer C.J.C. found that there is no explicit provision in the Canada Human Rights Act giving the Commissionpower to determine questions of law. He said at paragraph 57, “… it is well accepted that the Commission only has jurisdiction over acomplaint when it is in respect of to an activity or undertaking within the federal sphere.

In making such a determination the Commissionmust obviously make reference to the constitutional division of powers.” [40] Therefore, the Commission has the power to make jurisdictional decisions even without express powers conferred on it. TheBoard of Inquiry also has this power. [41] In Cooper, Lamer C.J.C. said at paragraph 64, “As with the Commission there is no explicit power given to a [board ofinquiry] to consider questions of law”. He says the inquiry it conducts, “is primarily and essentially a fact-finding inquiry with the aim ofestablishing whether or not a discriminatory practice occurred.

In the course of such an inquiry a [board of inquiry] may indeed considerquestions of law. As with the Commission, these questions will often centre around the

interpretation of the enabling legislation.” [42] He continued, “However, unlike the Commission, it is implicit in the scheme … that a tribunal [possess] a more general powerto deal with questions of law. Thus tribunals have been recognized as having jurisdiction to interpret statues other than the Act …. Inparticular, it is well is accepted that a tribunal has the power to address questions on the constitutional division of powers ….” [43] Thus, I conclude that the Executive Director may, but is not compelled to, dismiss the Complaint because of lack of jurisdictionof the Commission.

If she does not do so, the adjudicator may make such a determination. [44] I allow the appeal and set aside the decision. I would have referred this matter back to the adjudicator for resolution. In that

resolution, she may deal with the issue of jurisdiction. [ 45 ] However, counsel agree that the adjudicator has resigned as a panel member of the Board of Inquiry. The Commissioner shall refer this matter to the chief adjudicator of the panel, under

section 35 of the Act . COSTS [ 46 ] The Commission and Gander Flight Training have been successful in this Application. However, Mr. Roy filed his human rights complaint in 2015. Both Mr. Roy and the Commission agree that Gander Flight Training raised its jurisdictional issue late in the process. In these circumstances, I will make no order for costs. DISPOSITION [ 47 ] I quash the decision of Valerie A. Hynes, Q.C., Board of Inquiry adjudicator, pursuant to section 42(1) of the Act , File # 14- 9153, dated October 1, 2021. I order that the Commissioner shall refer this matter to the chief adjudicator of the panel under

section 35 of the Act . _____________________________ Alexander MacDonald Justice