Walter Yeadon Applicant And: His majesty the king in right of newfoundland v. labrador,, 2023 NLSC 140

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Yeadon v. Newfoundland and Labrador (Fisheries, Forestry and Agriculture) , 2023 NLSC 140 Date : October 24, 2023 Docket : 202201G1056 Between: Walter Yeadon Applicant And: His majesty the king in right of newfoundland and labrador, as represented by the minister of fisheries, forestry and agriculture First Respondent And: newfoundland and labrador human rights commission Second Respondent Before: Justice Glen L.C.

Noel On Judicial Review From: A Decision of the Executive Director of the Newfoundland and Labrador Human Rights Commission, File No.: 14339 dated the 15th day of March 2022 (the “Decision”). Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 8, 2023 Final Written Submissions: August 30, 2023

Summary:

The Applicant, Walter Yeadon is a nonresident of Newfoundland and Labrador. He claims that as a nonresident without a direct relativeliving in NL he is discriminated against because of the Province’s legislative enactments pertaining to salmon angling. He is treateddifferently as a nonresident than other nonresidents that have the benefit of having a direct relative residing in NL. He filed a complaint with the NL Human Rights Commission claiming discrimination based on the prohibited grounds of social originand ethnic origin.

The Executive Director screened and dismissed the complaint due to the Commission lacking jurisdiction over thecomplaint. He applied to set aside the decision on the appellate standard of correctness review and for breaches of procedural fairness. The Court held: 1. Yeadon’s application is a judicial review and the standard of review is reasonableness. 2. The Decision meets the reasonableness standard. 3. The Executive Director and the Commission did not breach any procedural fairness owed to Yeadon. There was no order as to costs. Appearances: Walter Yeadon Appeared on his own behalf Kelly E.

Hynes-Curties Appearing on behalf of the First Respondent Hillary Winter Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Young v. Central Health, 2016NLTD(G) 145; Dichmont v. Newfoundland and Labrador (Services and Lands), 2015 NLTD(G) 14; R. v. Gallone, 2019 ONCA 663;Weir’s Construction Limited v. Warford (Estate), 2018 NLCA 5; O’Brien v. Newfoundland and Labrador (Human Rights Commission),2014 NLTD(G) 8; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10; Chiasson v.

HappyValley-Goose Bay (Town), 2011 NLTD(G) 156; Vey v. Newfoundland and Labrador Pharmacy Board, 2022 NLCA 55; Dobbin v.Canada (Department of Fisheries and Oceans), 2005 FC 1020, 141 A.C.W.S. (3d) 93; Canada (Attorney General) v. Robinson , 2022FCA 59; Publicover v. Canada (Attorney General), 2021 FC 1460, 341 A.C.W.S. (3d) 403; St. John’s (City) v. Newfoundland andLabrador (Human Rights Commission), 2011 NLTD(G) 83; Andrews v. Law Society of British Columbia, (SCC), [1989]1 S.C.R. 143; R. v. G.F., 2021 SCC 20; Human Rights Commission v.

Newfoundland (Workplace Health, Safety and CompensationCommission), 2005 NLCA 61; Z.B. v. Provincial Director of Adults in Need of Protective Intervention, 2020 NLCA 17; and Dwyer v.Bussey, 2017 NLCA 68; Canadian National Railway v. Canada (Human Rights Commission), (SCC), [1987] 1 S.C.R.1114; B. v. Ontario (Human Rights Commission), 2002 SCC 66; Halleran v. House of Haynes (Restaurant) Ltd., (NLHRC); Gardezi v. Insurance Corporation of British Columbia, 2010 BCHRT 262; Ayangma v. Canada Health Infoway Inc., 2012CarswellPEI 58, (HRC); Québec (Commission des droits de la personne et des droits de la jeunesse) v.

BombardierInc. (Bombardier Aeronautique Centre de formation), 2015 SCC 39; R. v. S. (S.), (SCC), [1990] 2 SCR 254; Aylward v.Law Society of Newfoundland and Labrador, 2013 NLCA 68; Canada (Attorney General) v. Mavi, 2011 SCC 30; Khela v. MissionInstitution, 2014 SCC 24; Oleynik v. Memorial University of Newfoundland and Labrador, 2021 NLSC 4; General Accident InsuranceCo. v. Chrusz (1999), (ON CA), 45 O.R. (3d) 321 (C.A.); Lewisporte (Town) v. Newfoundland and Labrador(Information and Privacy Commissioner), 2022 NLSC 130; University of Saskatchewan v.

Saskatchewan (Information and PrivacyCommissioner), 2018 SKCA 34; Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31; Air Passenger Rights v. Canada(Attorney General), 2023 FCA 2; S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., (BC SC), [1983] 4W.W.R. 762, 45 B.C.L.R. 218 (S.C.); Imperial Tobacco Company Limited v. Newfoundland and Labrador (Attorney General), 2007NLTD 172;

STATUTES CONSIDERED: Human Rights Act, 2010 , S.N.L. 2010, c. H-13.1 ; Wild Life Act , Regulations , Nfld. Reg. 1156/96; Wild Life Act , R.S.N.L. 1990, c. W-8 ;

Interpretation Act , R.S.N.L. 1990, c. I-19 ; Federal Courts Act , R.S.C. 1985, c. F-7 ; Canadian Human Rights Act , R.S.C. 1985, c. H-6 ; Human Rights Code , R.S.O. 1990, c. H.19 ; Charter of Human Rights and Freedoms , CQLR c. C-12 TEXTS CONSIDERED: Jonathan Silver & Henry Federer, What Is an Appeal? Vavilov and the New Framework for Statutory Appeals , 92021) 34 Can. J. Admin. L. & Prac. 179; Newfoundland & Labrador, House of Assembly Proceedings (Hansard), Vol. XLVI No. 40 (17 June 2010) (Hon. F.

Collins) online: https://www.assembly.nl.ca/HouseBusiness/Hansard/ga46 session3/10-06-17.htm > REASONS FOR JUDGMENT Noel, J. : INTRODUCTION [ 1 ] The Applicant, Walter Yeadon is a retired lawyer and resident of Nova Scotia. He has a passion for salmon angling on the island of Newfoundland. He has been coming to Newfoundland for 55 years to fish on the rivers. [ 2 ] He claims that as a nonresident without a direct relative living in Newfoundland and Labrador he is discriminated against because of the Province’s legislative enactments pertaining to angling.

He is treated differently as a nonresident than other nonresidents that have the benefit of having a direct relative residing in NL. [ 3 ] Yeadon filed a complaint with the NL Human Rights Commission naming the First Respondent (referred to as Government of NL or “GNL”). He grounded his complaint of discrimination on the prohibited grounds of “social origin” and “ethnic origin.” The Executive Director of the Commission screened and dismissed the complaint. [ 4 ] Yeadon applies pursuant to

section 33 of the Human Rights Act, 2010 , S.N.L. 2010, c. H-13.1 (the “ Act ”) seeking a judicial review of the Executive Director’s decision to dismiss the complaint. He argues even thought his application is for “judicial review,” when considering the statute as a whole and the principles of statutory

interpretation, this is in effect an appeal. He asks this Court to apply the appellate standard of correctness to the review rather the presumptive standard of reasonableness for a judicial review. [ 5 ] Yeadon’s application also raises that the Commission breached procedural fairness owed to him. [ 6 ] I must decide the following Issues : 1. Under

section 33 of the Act , is this a judicial review or appeal, and what is the standard of review that applies to the Decision? 2. Does the Decision meet the applicable standard of review? 3.

Did the Commission breach any procedural fairness owed to Yeadon that would justify setting aside the Decision, including: i. the failure to provide Yeadon with the opportunity to address case law relied on in the Decision; and ii. the failure to provide Yeadon with in-house counsel’s internal legal opinion memorandum that the Executive Director relied on for the Decision. [ 7 ] For the reasons that follow, I find this is a judicial review and the reasonableness standard applies to the decision under review. The Commission did not breach any procedural fairness owed to Yeadon.

I dismiss the application with no order as to costs. Background Yeadon’s Complainant to the Commission [ 8 ] Yeadon’s complaint cites sections 111.1(1)(

c) and 111.1(4) of the Wild Life Act , Regulations , Nfld. Reg. 1156/96 made pursuant to the Wild Life Act , R.S.N.L. 1990, c. W-8 (the “ Wild Life Act ”), as being the instrument of discrimination against nonresidents who do not have direct relatives residing in NL. [ 9 ] He complains that the legislation establishes two distinct classes of nonresident anglers. They are: Class A, a nonresident that

has a direct relative resident in NL; and Class B, a nonresident that does not have a direct relative that is a resident of NL. [ 10 ]

Section 111.1(1)(

c) of the Regulations provides: "direct relative” means “a parent, grandparent, sibling, child, grandchild or in- law who is a resident of the province.” [ 11 ]

Section 111.1(4) of the Regulations provides: “Within the island portion of the province and south of 52º latitude in Labrador, a nonresident shall not angle in any waters set out in

Schedule I of the Newfoundland and Labrador Fishery Regulations (Canada) or any waters more than 800 metres from a provincial highway unless accompanied by a licensed guide or a direct relative.” [ 12 ] He notes in order to angle NL scheduled salmon waters, a Class B angler must hire a licensed guide at a typical cost of $200 per day, while a Class A angler is afforded the option to forego that expense. [ 13 ] He claims the statute and Regulations further amplify the impact on the level of discrimination because of additional restrictions imposed on him as a Class B angler as opposed to Class A anglers. [ 14 ]

Section 4 (

c) of the Wild Life Act provides that a Class B angler must “be within hearing distance of the guide.” Class A anglers have much more freedom and flexibility to enjoy the tranquility of the rivers, as there is no requirement for the direct relative accompanying them to be “within hearing distance.” [ 15 ] Class B anglers also require that “the number of guides shall not be less that one guide for each two nonresidents”:

section 111.1(7) of the Regulations. The same limitation does not apply to Class A anglers accompanied by their direct relative. They are permitted to fish with no limitation on the size of the group, while accompanied by one direct relative. [ 16 ] Yeadon submits the financial impact of the adverse discrimination is considerable.

By way of example, he illustrates a group of five Class B anglers are required to hire three licensed guides, resulting in a cost of over $600 per day of angling. [ 17 ] The complaint asserts that this differentiation between the two classes of anglers is not based on their status as nonresidents, but based on whether they have direct relatives residing within NL. Yeadon claims the “direct relative” distinction discriminates between two classes of nonresident anglers on the basis of their ethnic and/or social origin, contrary to

section 11 of the Act and the prohibited grounds of ethnic origin and/or social origin enumerated in

section 9. The Executive Director’s Decision to Dismiss the Complaint [ 18 ] The Government of NL requested that the Executive Director of the Commission consider early dismissal of the complaint pursuant to

section 32 of the Act .

Section 32 authorizes the Executive Director, at any time before a complaint is referred to a board of inquiry, to dismiss the complaint where the Executive Director is satisfied that the Act provides no jurisdiction to deal with the complaint. [ 19 ] The Executive Director performs a statutorily required screening function by independently reviewing complaints made to ensure that complaints received conform with the statutory requirements contained in the Act prior to the complaint being investigated and, potentially, referred to the Board of Inquiry stage outlined in sections 32- 39 of the Act . [ 20 ] Yeadon was given the opportunity to respond to the Province’s request and provided his written response. [ 21 ] The Executive Director notified Yeadon and the Government of NL that the Complaint had been dismissed pursuant to section 32(1)(

a) of the Act , finding it “plain and obvious that the NL Human Rights Commission lacks jurisdiction over this complaint.” analysis Issue 1: Under

Section 33 of the Act , Is this a judicial review or appeal, and what is the standard of review that applies to the Decision? [ 22 ] I find this is a judicial review and not an appeal, and there is no basis for departing from the presumption of reasonableness review in this case. [ 23 ] Yeadon filed an Origination Application naming GNL seeking judicial review of the Decision . By Consent Order, the Second Respondent, the Commission was added as a party to the proceedings. The style of cause with the filing of the Record was inadvertently changed and referred to Yeadon, as the Appellant. Nothing turns on this change in the style of cause for the determination on the merits. [ 24 ]

Section 33 states: “Where a complaint or part of a complaint is dismissed, a party to the complaint may, within 30 days after service of the written notice of the dismissal, apply for judicial review of the dismissal by filing an application with the Trial Division and serving it on all the parties to the complaint and the executive director.” [emphasis added] [ 25 ] The

section does not contain the word “appeal” but rather empowers parties to make an application for judicial review of a decision to dismiss all or part of a complaint. [ 26 ] The heading in the body of the Act for

section 33, “Appeal of dismissal,” creates confusion for discerning the legislative intent. All three parties recognize the

Interpretation Act , R.S.N.L. 1990, c. I-19 , stipulates that headings and margin notes “do not form part of the Act and shall be considered to be inserted for convenience of reference only”:

section 15. Thus, the use of “appeal” in the heading carries no interpretive weight. [ 27 ] Although

section 33 employs the term “judicial review,” Yeadon submits

section 33 is to be regarded, looking at the statutory scheme as a whole, as authorizing an “appeal” and conferring an appellate role upon the Court. Whether it is a judicial review or appeal, directly impacts the standard of review that I am to apply to the Decision.

[ 28 ] The presumption of reasonableness applies to judicial review of the Decision on the substantive merits, and if this is in effect an appeal, appellate standards of review apply to the Decision: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , (at paras. 16 , 17 and 33). [ 29 ] Yeadon is seeking to have the Court apply the appellate standard of correction to review the Decision. What is an Appeal? [ 30 ] Before the hearing in this matter, I called a Pre-hearing conference and brought to parties’ attention, among other issues I wanted them to consider, the

article by the Jonathan Silver & Henry Federer, What Is an Appeal? Vavilov and the New Framework for Statutory Appeals , 92021) 34 Can. J. Admin. L. & Prac. 179. The parties made additional written and oral submissions on this and the other issues raised. [ 31 ] The framework developed by Silver/Federer is a response to how the court in Vavilov justified its

interpretation of the courts’ role for a judicial review versus an appeal. Because administrative bodies are creatures of statute, determining the legislative intent behind a provision is paramount. Silver/Federer look at the drafting of the legislative provision that empowers the review and its function within the entire scheme of the legislation by separating provisions that contain the word “appeal” and those that do not. [ 32 ] As Silver/Federer point out, the use of the word “appeal” is not always determinative as the

section may still contemplate a statutory appeal mechanism through its function within the statute. Though not noted specifically addressed by the authors, it would also stand to reason that the opposite would also be true — even if the word “appeal” is present, the provision may still contemplate a judicial review mechanism. For circumstances where the categorization is not immediately clear from the statutory language, the authors set up a four-question assessment framework for determining the legislative intent. [ 33 ] The four questions are: i. Do other sections of the Act use the word “appeal”? ii.

How detailed is the provision and does it primarily set out procedural considerations that apply to judicial reviews? iii. Have courts in the past interpreted the provision? iv. Does the clause signal an “institutional design choice” to include court oversight over an administrative body? Yeadon’s Submissions that this is an Appeal [ 34 ] Yeadon submits that while the

article of Silver/Federer provides a helpful overview and an analysis of specific issues, it does not deal with the unique situation found within the Act at sections 33 and 35 . It does not address circumstances where the legislature has made an “institutional design choice,” wherein the Court’s oversight is a judicial review (section 33) on the one hand and an appeal (section 35) on the other hand, both in relation to the same decision, that being a decision made pursuant to

section 32 of the Act . He states this observation casts no criticism on the authors as they cannot be expected to have contemplated such a circumstance arising. [ 35 ] Similarly, he submits the Supreme Court of Canada decision in Vavilov , though providing a framework, is of limited assistance in addressing the anomaly posed by sections 33 and 35 of the Act . Vavilov, by its own terms of reference, would have guarded application in circumstances where ambiguity is found in the language of the statute.

That is made clear (at para. 34): “Any framework rooted in legislative intent must, to the extent possible, respect clear statutory language that prescribes the applicable standard of review.” [ 36 ] It is the submission of Yeadon that the requisite “clear statutory language” referenced in Vavilov is not present in sections 33 and 35 of the Act . [ 37 ] Yeadon points to the significance of the word “appeal” as found in

section 35 of the Act .

Section 35 provides in part: “…where a judge of the Trial Division orders the commission to refer a matter to a board of inquiry on an appeal under

section 33 …” [emphasis added] [ 38 ] Yeadon contends that “appeal” means exactly what it appears to mean, which is to permit the Court when dealing with a

section 33 review, upon setting aside a decision, the option to refer a matter to a board of inquiry as opposed to having no option, other than to remit the matter to the Executive Director, the author of the initial decision. The legislature, he submits, had the foresight to take into account that there may be circumstances where limiting the Court to remitting a matter to the original decision maker could be untenable and unjust. [ 39 ] He cites the decision of Goodridge J (as he then was) in Young v. Central Health , 2016 NLTD(G) 145.

Justice Goodridge held (at para. 64) that Central Health’s Vice-President of Medical Services had judged the matter already, without affording Dr. Young procedural fairness. The Vice-President of Medical Services could have no further involvement, as there would be a reasonable apprehension of bias. [ 40 ] The Young decision is of no assistance to Yeadon’s argument. To the contrary, Young was an application for judicial review, which demonstrates the wide remedial powers of the Court on judicial review.

I reject Yeadon’s submission that a standard judicial review process limits the Court to remitting the matter to the individual that made the initial decision.

[ 41 ] Vavilov (at para. 139 ) makes clear that where a court on judicial review “reviews an administrative decision, the question of the appropriate remedy is multi-faceted.” One of the considerations that may influence a court’s decision to exercise its discretion in respect of available remedies is the reviewing court’s “statutory jurisdiction.” Here

section 35 specifically permits the Court to refer a matter on judicial review to a board of inquiry: Dichmont v. Newfoundland and Labrador (Services and Lands) , 2015 NLTD(G) 14, at para. 130. [ 42 ] Vavilov (at para. 141 ) also instructs “[I]t will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision.” However, (at para. 142) “there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters,” or as in Young , it would be inappropriate to do so.

In fact, in Vavilov (at para. 195 ) the court exercised discretion not to remit the matter to the decision maker, holding (at para. 196) that “it would serve no purpose to remit the matter in this case to the Registrar.” Yeadon’s Other Salient Points on Statutory

Interpretation [ 43 ] Yeadon submits the word “appeal” found in

section 35 is not a mistake and drafting error, but must be given meaning applying the principles of statutory

interpretation. He argues attributing the word “appeal” within

section 35 to a mistake clashes with the guidance provided in R. v. Snelgrove , 2023 NLCA 12 , at paras. 33 to 35 , under the heading “Principles of Statutory

Interpretation.” [ 44 ] That guidance reminds us that the legislators are presumed to have knowledge of the statutory provisions and to competently convey intention through the wording of the provisions in issue.

No legislative provision should be interpreted to render words and phrases meaningless and “mere surplusage.” As well, the legislation is presumed to be coherent and the provisions to work together as a functioning whole. [ 45 ] Yeadon relies on the presumption of consistent expression that requires the Court to look at the whole of the Act , and not just sections 33 and 35 in isolation and solely in relation to one another.

He points to subsection 42(1) that deals with the appeal of a decision of a board of inquiry: “A party to a proceeding before a board of inquiry may appeal an order or decision of the board by way of application to the Trial Division.” [ 46 ] Both

section 35 and section 42(1) of the Act employ the word “appeal.” Taking that circumstance into account, he argues the presumption of consistent expression would result in section 42(1) bolstering or tipping the

interpretation of

section 35 toward a conclusion that the legislature intended that curial oversight should proceed as an appeal and not as a judicial review, in relation to the review contemplated in

section 33 of the Decision. [ 47 ] He also relies on the presumption against tautology, meaning every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose: R. v. Gallone , 2019 ONCA 663 , at para. 31 . [ 48 ] He submits the presumption against tautology and the presumption of consistent expression both apply in the instant circumstances and are complementary. The presumption against tautology confirms that the word “appeal” as found within

section 35 is not a “meaningless word” and has “a specific role to play,” which role is clarified by the application of the presumption of consistent expression. The latter serves to confirm that the word appeal as found in

section 35 mirrors the purpose and intent of the word “appeal” as found in subsection 42(1) of the Act . The overall result, in Yeadon’s submission, is that curial oversight respecting a decision to dismiss, made by the Executive Director pursuant to

section 32 of the Act , can justifiably be viewed as proceeding as an appeal and not a judicial review. [ 49 ] The statutory

interpretation principles that I must apply is settled law. Where I respectfully disagree with Yeadon is the application of those principles to the

interpretation of

section 33 in the context of the statute as a whole. Position of Respondents on Standard of Review [ 50 ] The submissions of the Respondents are persuasive in helping me decide that this is not an appeal but rather a judicial review and the reasonableness standard applies. Role of the Commission on this Application [ 51 ] Counsel for the Commission acknowledged the role of the Commission at a judicial review of this nature is restricted to explanation of any relevant information regarding the administration of the Commission and the internal process and protocols. In accordance with Weir’s Construction Limited v.

Warford (Estate) , 2018 NLCA 5 (at paras. 40 and 41 ), the Commission did not make submissions as to whether the Decision was reasonable, correct or procedurally fair. [ 52 ] Both counsel for the Government of NL and the Commission addressed the questions posed by Silver/Federer for analyzing what constitutes an appeal. I find the four questions a useful analytical guide. Question 1: Do other sections of the Act use the word “appeal”? [ 53 ] This first step of the analysis aligns with the modern statutory

interpretation principle of understanding a specific provision as it relates to the entirety of the legislation in which it functions.

Section 42 is particularly helpful for understanding

section 33 and its intended operation. Additionally,

section 35 explicitly uses the word “appeal” when referring to

section 33, however when understood in context it should not be seen as defining

section 33 as an appeal. [ 54 ] The role of the Executive Director in the administration and functioning of the Commission also factors into my reasoning that

section 33 is what the provision specifically says it is – a “judicial review of the dismissal.”

Section 42 [ 55 ] When comparing the details of court oversight provided under

section 42 compared to

section 33, it becomes clear that

section

42 is creating a statutory appeal, and

section 33 is addressing specific judicial review procedures.

Section 33 provides a mechanism for the courts to review a decision to dismiss a complaint through an application to the Trial Division within 30 days of dismissal. These are procedural instructions for how to proceed when seeking a review. [ 56 ]

Section 42 creates a more complex mechanism for appeals of Board of Inquiry decisions. It sets out different procedures depending on the specific grounds of appeal, creating a right of appeal for questions of law and requiring leave for questions of mixed law and fact, and questions of fact (s. 42(2)).

Section 42 specifies the power of the Court respecting available remedies (s. 42(7)) and requires the Commission to provide “all papers and documents in its possession which may affect the matter being appealed” (s. 42(9)). This detailed oversight role provides a helpful comparison for understanding

section 33, which merely sets a time period and a venue for filing the judicial review application.

Section 35 [ 57 ]

Section 35 is another provision that provides context for

section 33. The provision sets out the procedure for a board of inquiry referral whether it is through the Commission or under order of the Trial Division in the case of “an appeal under

section 33.” The

section clarifies that the referenced procedures apply to all cases that end up before a board of inquiry, regardless of how they are referred. [ 58 ] Since the provision is primarily addressing procedure, it should be understood that the use of the word “appeal” carries less weight than the use of the words “judicial review” in

section

Section 33 is outlining the specific rights of parties when faced with the dismissal of their complaint. This does not mean that the judicial power under

section 35 is to be ignored. The use of the word “appeal” is intended as a generalization of the judicial oversight process rather than the creation of a statutory appeal mechanism. [ 59 ] Additionally, for the judicial power of

section 35 to work with the rest of the Act , it should apply primarily to Commission decisions. Understanding the difference between a dismissal from the Executive Director compared to a dismissal from the Commission is important in evaluating the intention of

section 35 with respect to the Court’s oversight.

Section 24 and Role of Executive Director [ 60 ] The role of the Executive Director is set out in

section 24 and specific powers and obligations appear throughout the Act .

Section 24 dictates that an executive director is “necessary for the purpose of giving effect to this Act ” and shall be appointed and “perform the duties and functions prescribed for him or her by this Act , by the commission or by the regulations.” [ 61 ] Commission counsel provided a succinct

summary of the Executive Director’s powers and responsibilities. The Executive Director conducts the operations of the Commission by accepting complaints, assisting parties in settling disputes, investigating the circumstances surrounding complaints, and facilitating hearings. The Executive Director also has the power to dismiss a complaint if it is outside the jurisdiction of the Act , is trivial, frivolous or made in bad faith, or another proceeding appropriately concluded the matter. [ 62 ] The Executive Director may exercise their power to dismiss a complaint at any time before a complaint is referred to a board of inquiry under

section 34. In effect, this means that the Executive Director may dismiss a complaint before a respondent has filed a defence to the complaint, or before an investigation is complete. The Executive Director does not refer matters to a board of inquiry. The Executive Director provides the commissioners with an investigation report and a legal opinion on the legal framework applicable to a specific matter. The commissioners decide whether to refer a matter to a board of inquiry. [ 63 ]

Section 35 addresses the procedure of assigning files to specific adjudicators. It is not contemplating the institutional design and degree of court oversight intended by the legislature for early dismissal by the Executive Director. It appears under the heading of “Adjudication” and appears after

section 34, which indicates how the commissioners refer a matter to a board of inquiry. [ 64 ] By the time a matter reaches the stage where the Commission is assessing the sufficiency of evidence to determine whether it warrants a hearing, a respondent has filed a defence and an investigation has taken place. Dismissal by the commissioners involves more evaluation of evidence compared to dismissal by the Executive Director, which is a screening process.

If the Court could order a matter proceed to a board of inquiry after the Executive Director dismissed it, the court would then have the discretion to bypass the investigation process and the settlement process entirely. This result would undermine the entire administrative process that the legislature set up through the Act . Question 2: How detailed is the provision and does it primarily set out procedural considerations that apply to judicial reviews? [ 65 ]

Section 33 is a procedural provision that specifies which court should conduct the judicial review and sets a timeframe for applying. Silver/ Federer note that clauses that “predominately set rules upon which the courts can review the decision” (at para. 5, p. 12) are likely not appeal clauses, but instead are procedural clauses for judicial review. If the legislative intent were to create a statutory appeal mechanism, the provision would set out the powers of the Court to engage in the appeal and the specific obligations on the Commission, such as providing all relevant documentation to the Court as noted in

section 42. None of these powers or obligations are stipulated in

section 33, which shows that it is contemplating a judicial review rather than a statutory appeal. [ 66 ] I interpret

section 33 as the court in Vavilov (at para. 51 ) interpreted

section 18 of the Federal Courts Act , R.S.C. 1985, c. F-7 ( FCA ).

Section 18 of the FCA is an example of a statutory judicial review mechanism. The provisions establish the jurisdiction of the Federal Court to hear reviews of decisions from any federal board, commission or tribunal and empowers it to issue specific remedies. This is similar to the process set out in

section 33, when read together with

section 35. The FCA provisions were considered to be a procedural judicial review mechanism because the function of the provisions addressed procedure and did not assign appellate function to the reviewing court. Similarly,

section 33 does not assign appellate function to the Court. Question 3: Have courts in the past interpreted the provision? [ 67 ] This Court, on three occasions prior to the Vavilov decision, interpreted

section 33 as a judicial review and applied the

reasonableness standard. [ 68 ] Dichmont makes reference (at para. 69) that “[t]he statute specifically provides for judicial review of a decision to dismiss, in

section 33.” Faour J (at para. 115) stated: “While the powers of this Court are not specified, it is clear that in any judicial review , all of the remedial powers of the court are engaged.” [emphasis added] Both sides agreed that a “reasonableness” standard applies, so Faour J (at para. 30) did not see the need to discuss this aspect further. [ 69 ] O’Brien v. Newfoundland and Labrador (Human Rights Commission) , 2014 NLTD(G) 8 refers to the process under

section 33 as a judicial review. Noteworthy, Orsborn CJ (as he then was) held (at para. 17): “The law is clear that in reviewing a decision of a Human Rights Commission not to refer a complaint to a board of inquiry a court is to review the decision against a standard of reasonableness.” Supreme Court of Canada authority, Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) , 2012 SCC 10 is cited in support of this statement, as did Faour J in Dichmont . [ 70 ] Although in Chiasson v.

Happy Valley-Goose Bay (Town) , 2011 NLTD(G) 156 the Court refers to the process as an appeal, it applied the standard of review applicable for judicial reviews, not statutory appeals. Mr. Chiasson, a self-represented litigant, filed (at para. 17) an “appeal document” and set out “grounds of appeal.” Stack J applied throughout (in particular, at paras. 1 and 21) the reasonableness standard in dismissing (at para. 36) “Mr.

Chiasson’s appeal” from the decision of the executive director. [ 71 ] Justice Stack’s reference to “appeal” in Chiasson simply mirrored the procedure the self-represented litigant used to bring the application. It was a judicial review but brought and referred to as an “appeal” in keeping with how the self-represented litigant chose to bring the proceeding.

I do not take from Chiasson that the reference to “appeal” means I can apply the appellate standard of correctness, when quite clearly Stack J applied the reasonableness standard to the application before him. [ 72 ] There is no support for Yeadon’s position in the jurisprudence from this Court that I apply a correctness review to the Decision. To the contrary, the jurisprudence consistently applied the reasonableness standard even pre- Vavilov , and Vavilov now reconfirms that on a judicial review, reasonableness is the standard of review for a decision of dismissal at the screening stage.

Question 4: Does the clause signal an “institutional design choice” to include court oversight over an administrative body? [ 73 ] The court in Vavilov (at para. 32 ) set out that the legislature determines the standard of review for administrative decisions based on the choice of institutional design. The language of

section 32 empowers the Executive Director with a great deal of discretion, indicating that the legislature intends an institutional design where the Executive Director is free to assess which complaints fall under the jurisdiction of the Act and which do not. [ 74 ] The language of

section 32 states that a complaint may be dismissed where the Executive Director “is satisfied that” it falls under one of the noted grounds. This is a clear intention by the legislature that the Executive Director has the decision-making authority to interpret the Act to determine the scope of its jurisdiction. [ 75 ] The Court of Appeal in Vey v. Newfoundland and Labrador Pharmacy Board , 2022 NLCA 55 , (at para. 32 ) saw legislative evolution to be illustrative of a “legislature’s intention to give special attention” to an issue that was not previously emphasized in former legislation.

The dismissal power of the Executive Director was an addition to the legislation when the Act came into effect in 2010. The statutory evolution represents a legislative desire to recognize the expertise of the Executive Director and their knowledge of what does and does not fit within the purview of the Commission. [ 76 ] All administrative decisions are subject to judicial review.

Section 33 provides for a judicial review and sets out the statutory procedural requirements for bringing the application. [ 77 ] Counsel for the Commission brought to the Court’s attention that the Hansard of Legislative debates supports this understanding as well. During the second reading of Bill 31 in the House of Assembly on June 17, 2010, referencing the proposed dismissal power of the Executive Director under

section 32, then Justice Minister Felix Collins noted that the dismissal power was “subject to a judicial review by the Trial Division of the Supreme Court”: Newfoundland and Labrador, House of Assembly Proceedings (Harsard) , Vol. XLVI No. 40 (17 June 2010) (Hon. F. Collins) online: <https//www.assembly.nl.caa/HouseBusiness/Hansard/ga46s ession3/10-06-17.htm>. The legislative intent was for the Court to take on a review role and not an appellant role. Executive Director’s Administrative Expertise and Rejection of Correctness Review [ 78 ] My conclusion that

section 33 is a judicial review mechanism rather than a statutory appeal aligns with the concept of administrative expertise. Vavilov indicated (at para. 31 ) that “expertise remains a relevant consideration in conducting reasonableness review.” The Executive Director and the Commission have the requisite expertise, institutional knowledge, and background for determining what constitutes grounds for discrimination under the legislation.

A proper element of deference is owed in an area where the expertise of the Executive Director is recognized and a clear part of the institutional design. [ 79 ] “Reasonableness review is methodologically distinct from correctness review” ( Vavilov , at para. 12 ). I am therefore obligated to reject correctness as the standard of review, and instead conduct a “robust” reasonableness review of the Decision as Vavilov mandates.

Issue 2: Does the Decision meet the applicable standard of review? [ 80 ] Having decided that reasonableness is the applicable standard, I will proceed on that basis. [ 81 ] The burden is on Yeadon to show that the Decision is unreasonable: Vavilov , at para. 100 .

[ 82 ] I must decide whether the Decision is (1) both based on internally coherent reasoning, and (2) justified in light of the legal and factual constraints that bear on the Decision: Vavilov , at para. 101 . [ 83 ] I will first detail Yeadon’s fulsome and able submissions, and then explain why I find the Decision meets the reasonableness standard using the Vavilov methodology for reasonableness review. Yeadon’s Submissions on the Substance of the Decision [ 84 ] Yeadon, in his initial submissions, stated the Decision failed in three substantive ways: (

A) to address the key issue: (

B) to define “discrimination,” and (

C) to address and apply the accepted standards and guidance relative to statutory

interpretation. [ 85 ] In his Supplementary Brief he expanded on the failure to define “discrimination,” and in his Oral Submissions (also provided to the Court in writing), he elaborated on two further arguments: (

D) the Decision imposes a burden that the Act does not mandate, and (

E) the Decision fails to meet the requirement of being the product of demonstrated expertise. (

A) Failure to Address the Key Issue [ 86 ] Yeadon submits the Executive Director misconstrued or misapprehended the basic premise of the complaint filed with the Commission, and as a result failed to address the key issue before her. To be clear, he does not take issue with the

definitions of ethnic origin and social origin put forward in the Decision. [ 87 ] He states, however, the Executive Director incorrectly casts the premise of the complaint as being a differentiation between residents of NL as compared to nonresidents of NL. He notes this misapprehension of the complaint on the part of the Executive Director is evident at the outset of the Decision.

In the first paragraph the Executive Director writes: "He [the Complainant] points to several differences in treatment under the Act for anglers based on whether or not they are a resident of NL.” [ 88 ] Yeadon did not in the course of the complaint raise the issue of differential treatment or discrimination as between residents and nonresidents of NL. The focus of the complaint is the differential treatment as between two classes of nonresidents of NL, those having direct relatives residing in NL and those who do not.

Further, at no point in the complaint are Class A anglers defined as "those anglers who reside in NL,” as also stated in the first paragraph of the Decision. [ 89 ] I would note here that the last two lines of the first paragraph of the Decision squarely address the key issue of Yeadon’s complaint, when it states he “… also points to different treatment of nonresident anglers based on whether they have direct relatives living in the province of NL.” [emphasis added] [ 90 ] Yeadon submits the misapprehension continues throughout the course of the Decision.

Midway through the Decision the Executive Director states: "The Respondent [Government of NL] contends that the differential treatment between Class A and Class B anglers as identified in this complaint is based upon their place of residence.” [ 91 ] With reference to this statement, it is Yeadon’s submission that the Executive Director should have made it clear that this characterization of the complaint by the Government of NL was wrong and amounted to a misstatement of the complaint.

In failing to address the issue decisively and with clarity at this point in the Decision, he submits the Executive Director missed an opportunity to steer away from the misapprehension contained in the first paragraph of the Decision.

As a result, he posits one is left to conclude that the Executive Director found nothing amiss with the characterization and indeed was adopting it as a central premise of the Decision. [ 92 ] Further on, he says this mischaracterization of the complaint is repeated in the Decision by the Executive Director’s finding that: “The distinction between nonresidents (with and without direct relatives living in NL) and residents of NL does not fall within a distinction based on 'ethnic origin'.” [ 93 ] He argues this misapprehension of the complaint is evident again at the second last paragraph of the Decision, where the Executive Director, in dismissing the complaint, relies on the case of Dobbin v.

Canada (Department of Fisheries and Oceans) , 2005 FC 1020 , 141 A.C.W.S. (3d) 93. [ 94 ] The decision of the Federal Court in Dobbin focuses on the issue of nonresidents versus residents and whether differentiation by DFO on the basis of place of residence, amounts to or falls within the prohibited grounds of discrimination set out in the Canadian Human Rights Act , R.S.C. 1985, c. H-6 .

On the issue of an individual’s residency being a permissible criteria for differentiation, the court concluded (at para 8), “Distinction based on place of residence does not constitute a prohibited ground of discrimination under the Act .” At paragraph 9, the court remarked, “There are numerous situations where individuals have been treated differently because of their ‘place of residence’.” [ 95 ] Yeadon submits the Decision lacks “justification” and an “internally coherent and rational chain of analysis” because the Executive Director’s reasons were not responsive to the question as framed – differential treatment as between two classes of nonresidents on the basis of whether they had direct relatives residing within NL.

The issue was not, he says as cast by the Executive Director, a matter of the Province being lawfully permitted to discriminate on the basis of nonresident status versus resident status. [ 96 ] He submits the Decision’s failure to address the central question requires that I set it aside, citing: Vavilov , (at paras. 86, 87 and 128 ); Canada (Attorney General) v. Robinson , 2022 FCA 59 , (at paras. 27 and 28 ); and Publicover v. Canada (Attorney General) , 2021 FC 1460 , 341 A.C.W.S. (3d) 403, (at paras. 63 , 65, 66 and 70). (

B) Failure to define “discrimination” [ 97 ] His submission is the failure to define “discrimination” means the Decision cannot be "justified” in terms of its reasons. On the accepted definition of discrimination, Hall J of this Court in St. John’s (City) v. Newfoundland and Labrador (Human Rights Commission) , 2011 NLTD(G) 83, (at para. 47), cited with approval a definition of discrimination by the Supreme Court of Canada in

Andrews v.

Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, (at para. 19): … discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics ofthe individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposedupon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society.Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escapethe charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. [98] Yeadon states the discrimination described in the complaint comports to the definition of discrimination as found in Andrews.Specifically, it is discrimination that arises from a "distinction ... based on grounds relating to personal characteristics of the individual”(at para. 19).

That personal characteristic is not having a bloodline and social background that is of, or congruent with, the ethnic baseand social bonds of the peoples of the Island of Newfoundland. That congruency or social and ethnic connectedness is measured by theRegulations, on the basis of whether an individual has a direct relative resident in NL.

In using that metric, the enactments put in issuethe ethnic and/or social origin of a nonresident angler. [99] Yeadon submits that the failure of the Executive Director to specifically address and apply a definition of discrimination or theAndrews definition of discrimination is as fatal as trial judges in criminal proceedings failing to specifically direct themselves on thecriminal burden of proof when handing down their decision.

Some things have to be said; cannot be assumed; and cannot be read in. [100] I reminded Yeadon in the Pre-hearing conference on this issue that there is a presumption that the trial judges understand thebasic principles of criminal law, such as the burden of proof: R. v. G.F., 2021 SCC 20, (at para. 74). [101] Yeadon’s Supplementary Brief clarifies that the Decision’s failure to define the word “discrimination” is fundamentally an issueof lack of reasons, or not providing reasons in circumstances where applicable jurisprudence requires that they be provided.

This failure,as posited by Yeadon, to define “discrimination” results in the Decision having a void or gap in the chain of analysis, and thereby it failsto demonstrate “justification, transparency, and intelligibility”: Vavilov (at para. 81). (

C) Failure to address and apply the accepted standards and guidance relative to statutory

interpretation [102] Yeadon submits the Executive Director failed to address or recount the guiding principles of statutory

interpretation, particularlyas they relate to the

interpretation and application of human rights legislation, as set forth in Human Rights Commission v. Newfoundland(Workplace Health, Safety and Compensation Commission), 2005 NLCA 61, at paras. 15 and 16; Z.B. v. Provincial Director of Adults inNeed of Protective Intervention, 2020 NLCA 17 (at para. 70); and Dwyer v. Bussey, 2017 NLCA 68 (at para. 57). He states at no pointdoes the Executive Director reference, or factor in, any portion of the

Preamble to the Act. Since the

Preamble does not inform theExecutive Director’s statutory

interpretation, he argues that the Decision in a fundamental way does not meet the Vavilov standard. [103] Yeadon submits that the

Preamble is relevant and necessary to the proper

interpretation of the terms “ethnic origin” and “socialorigin,” specifically the recitals that provide a focus on the rights vested in the individual. The words in the

Preamble, “everyindividual” and “every person” determine the scope or reach of the Act in addressing discrimination based on ethnic origin and/or socialorigin. These words confirm that the right to be spared the consequences of discrimination is a right held by the individual. It is not aright dependent upon or only to be enjoyed on the premise of the individual being a member of a group or class. [104] The Executive Director, he says, took no account of any part of the

Preamble and as a result, too narrowly interpreted and thuswrongly (or unreasonably) applied the prohibited grounds, ethnic origin and social origin. He claims the Decision, in effect, recognizes abirthright vested in one class of nonresidents, that being Class A nonresidents. Those without the birthright, that is Class B nonresidents,face the full force and consequent limitations of the impugned enactments.

This discrimination or differentiation encountered by Class Bnonresidents arises from the characteristic they lack – a connection to an ethnic group, a defined people with shared attributes, heritageand ancestry, that being the inhabitants of the Island of Newfoundland. [105] This narrow line of reasoning, in Yeadon’s submission, puts forward a barrier or limitation not found in the Act. As such, it isinconsistent with the requirement that human rights legislation be interpreted broadly, and “individual rights of vital importance … begiven ... their full recognition and effect”: Canadian National Railway v.

Canada (Human Rights Commission), (SCC),[1987] 1 S.C.R. 1114, (at para. 26). (

D) Imposing a Burden that the Act Does Not Mandate [106] The first issue Yeadon addressed in Oral Submissions was an expansion of his written submissions on the Decision’s failure toapply proper statutory

interpretation. He particularly focused on the Decision’s precondition that in order for the complainant to beafforded the protections set out in the Act, he must first place himself within a “protected class of people.” This requirement is set out inthe Decision as follows: “The defining features of this putative protected class would be that they are (

a) anglers and (

b) have no directrelatives in NL. For purposes of human rights legislation, this is insufficient to constitute a protected class of people sharing a socialorigin.” [107] Yeadon argues this requirement in the Decision that the complainant establish himself within “a protected class of people” is aprecondition or construct that is inconsistent with the plain wording of the Act. The wording of the Act grants protection, against variousforms of discrimination, to the individual. This, he states, is clear from both the

Preamble to the Act, and also clear from section 11(1)(a)and (

b) of the Act, which are not taken into account in the Decision. [108] Section 11(1) reads: “A person shall not, on the basis of a prohibited ground of discrimination, (

a) deny to a person or class ofpersons goods, services, accommodation or facilities that are customarily offered to the public; or (

b) discriminate against a person orclass of persons with respect to goods, services, accommodation or facilities that are customarily offered to the public.” [emphasis added] [109] Yeadon’s complaint says that he was discriminated against with respect to his access to goods and/or facilities that arecustomarily offered to the public. The “goods” are Atlantic salmon and the “facilities” are scheduled salmon waters located on the Island

of Newfoundland. [110] He states the Decision’s insistence that the complainant must place himself within “a protected class of people” in order to beavailed the protection of the Act, is contrary to the guidance provided by the Supreme Court in B. v. Ontario (Human RightsCommission), 2002 SCC 66. The case involved the

interpretation of the Ontario Human Rights Code, R.S.O. 1990, c. H.19. Atparagraph, the court held: By using the words "every person" the statute is clearly aimed at protecting individuals as opposed to groups against discrimination.Although it is equally clear that, in order to come under the protection of s. 5(1), the discrimination must be based on one of the listedgrounds, this does not mean that the discriminatory action must be directed against an identifiable group subsumed within theenumerated ground. [emphasis added] [111] The court (at para. 43) examined the contents of the

Preamble to the Ontario Human Rights Code and noted within that

Preamblethe significance of the words “every person” and “each person.” [112] The position put forward by Yeadon is that he is discriminated against as an individual. He asserts he is arbitrarily disadvantagedby the legislation. The discrimination arises not on the basis that he is a nonresident simpliciter, but on the basis that he is a nonresidentlacking direct familial links and a shared cultural background or common heritage with the residents of the Island of Newfoundland.

Theburdens and limitations he has identified, arise not by virtue of his nonresident status, but on the basis that he is not part of the coreculture, shared history, experience and traditions, linguistic adaptations and descendent bloodlines that suffuse the peoples of the Islandof Newfoundland. He argues to the extent that the Decision puts him to the task of placing himself within a disadvantaged sub-group, itimposes a burden that the Act does not mandate. (

E) Failing to Meet the Requirement of Being the Product of Demonstrated Expertise [113] Yeadon’s final argument on the merits of the Decision (and what he termed as a second major flaw in the Decision during OralSubmissions) is the Decision’s failure to meet the requirement of being the product of demonstrated expertise. [114] Relying on his written submissions filed in these proceedings, he asserts that the Executive Director, as the decision maker, failedto demonstrate through her reasons expertise at the level required by Vavilov, inasmuch as the Decision fails to set out a definition ofdiscrimination and how that definition underpins the Decision’s findings. [115] Yeadon also asserts that the decision maker failed to demonstrate expertise, inasmuch as the Decision fails to take into accountthe guidance of authoritative case law pertaining to the tenets of statutory

interpretation, in particular the

interpretation of human rightslegislation. [116] Despite Yeadon’s respectful and well-articulated arguments, they fail to show and convince me that the Decision is unreasonable.I am satisfied, substantially on the basis of the submissions of counsel for the Government of NL, that Decision is defensible and meetsthe reasonableness standard according to the robust review I must conduct. Why the Decision Meets the Reasonableness Standard [117] In determining whether the Decision is (1) based on an internally coherent reasoning and (2) is justified in relation to the relevantfactual and legal constraints that bear on the Decision, it is useful to break the Decision down.

(1) Based on an Internally Coherent Reasoning [118] The Executive Director first outlined the position of the parties. She then addresses

definitions used in relation to the twoprohibited grounds of discrimination asserted by Yeadon, applying both case law and common sense

interpretation. [119] She directly grapples in her reasons with Yeadon’s contention of “the differential treatment between Class A and Class B anglersas identified in this complaint.” She explained rationally and coherently why the Commission lacks jurisdiction over the complaint. [120] Contrary to Yeadon’s assertion that the Executive Director misconstrued or misapprehended the basic premise of the complaintand, as a result, failed to address the key issue before her, the Decision clearly assessed the crux of the distinction as characterized byYeadon: The distinction between non-residents with and without direct relatives living in NL does not fall within a distinction based on “socialorigin.” The Wildlife regulations define “direct relative” as: direct relative means a father, mother, grandparent, sister, brother, son, daughter, grandchild or in-law who is a resident in theprovince. (emphasis added) There is nothing in this definition that engages the meaning of “social origin.” A non-resident angler with in-laws who reside in theprovince of NL is not being defined by their social origin within NL.

In fact, they may have originated from another province orcountry. [121] In highlighting that an “in-law” is a direct relative, the Executive Director points out an obvious flaw with the assertion thatnonresident anglers without direct relatives in the Province constitutes a “social origin.” If social origin, as outlined in the Halleran v.House of Haynes (Restaurant) Ltd., (NL HRC) decision cited by the Executive Director, includes people “defined bytheir origin within a prescribed geographical area,” one cannot reasonably assert that “their origin,” typically considered the place where

something begins, is tied to their in-law’s place of residence. [ 122 ] In arriving at this conclusion, the Executive Director employs both the modern approach to interpreting social origin by adopting the “grammatical and ordinary” sense of the term as encouraged by Vavilov (at para. 118 ) and applies the definition provided in Halleran , the only existing decision directly addressing the

interpretation of the term. [ 123 ] Yeadon acknowledges that if the issue was simply one of residency, there would be no basis for a complaint. The Regulations , however, introduce the factor of "direct relative” into the equation and, with that introduction, the issue of discrimination on the basis of ethnic origin and social origin arises.

I accept the Government of NL’s submission that Yeadon fails to explain how the introduction of this concept relates back to his ethnic or social origin. [ 124 ] Yeadon’s own ethnic and social origin (being Nova Scotian or however he identifies) are uninvolved in the equation. It is the place of residence (not origin) of his direct relatives (including those not related to him other than by marriage) that creates the distinction. As such, no protected characteristic of his is engaged.

Where relatives choose to live cannot reasonably confer an origin or confer a protected characteristic upon a person. [ 125 ] The Executive Director also addresses the second prohibited ground of discrimination asserted by Yeadon. She notes, citing Gardezi v.

Insurance Corporation of British Columbia , 2010 BCHRT 262 , (at paras. 29 and 30 ) that ethnicity is viewed as “inherent characteristics that a person acquires or carries with him or her from birth – matters over which an individual has no choice,” whereas “place of residence is a matter over which one has a choice, and is fundamentally different from an immutable personal characteristic, such as one’s ethnicity, race, or country of birth.” This accords with the common sense understanding of the word “ethnicity.” It lacks logic that a person’s ethnicity could potentially be defined by the residency choices made by their direct relatives. [ 126 ] Yeadon further misapprehends the Executive Director’s focus on “place of residence” when he criticizes her reliance on Dobbin .

He contends that the Executive Director’s focus on “place of residence” is misguided as his argument is not about place of residence. GNL submits the Executive Director’s reference to Dobbin was for the purpose of supporting her conclusion that Yeadon’s argument is rooted in place of residence – not his own, but that of his direct relatives. [ 127 ] Yeadon’s argument that there is a distinction between the two classes of anglers within the category of “nonresident angler” is still rooted in residence – the residency of his direct relatives compared to the residency of the direct relatives of other nonresidents.

The root is still place of residence, not any form of origin. If a person moves, their origin does not change. They do not take on a new ethnicity or social beginning, nor do they in so doing confer one on their relatives. [ 128 ] Where one chooses to live (in this case where his direct relatives choose to live) is not their origin. It is their residence. It is not a characteristic nor is it immutable.

The direct relatives need not originate in NL, they simply need to reside here currently. [ 129 ] Should one of Yeadon’s direct relatives choose to move to the Province at some point, the impugned provisions would no longer apply to him. He would cease to be a nonresident Class B angler and become a nonresident Class A angler without the financial implications and restrictions the legislation imposes on Class B anglers.

It is not within the spirit or intent of the Act to capture such fluid, non-defining characteristics as prohibited grounds. [ 130 ] The Executive Director’s conclusion that Yeadon’s complaint did not fall within the purview of the Act was based on internally coherent reasoning with the requisite hallmarks of justification, transparency and intelligibility.

(2) Justified in Relation to the Relevant Factual and Legal Constraints that Bear on the Decision [ 131 ] The Decision is justified in relation to “the constellation of law and facts that are relevant to the decision”: Vavilov , (at para. 105 ). As suggested in Vavilov (at para. 106 ), the following elements of the surrounding context are helpful guides in evaluating whether the Decision is reasonable: i. the governing statutory scheme; ii. other statutory or common law constraints; iii. principles of statutory

interpretation; iv. evidence before the decision maker; v. submissions of the parties: vi. past practices and decisions; and vii. impact of the Decision on the affected party.

(

i) Governing Statutory Scheme [132] The Act explicitly gives the Executive Director the authority to act in a screening/gatekeeper capacity in

section 32. The exerciseof this authority will necessarily require

interpretation of the enabling statute and an analysis of the information provided in thecomplaint. The Decision properly analyzed Yeadon’s complaint and the relevant statutory provisions. Not getting the desired outcomedoes not make the Decision unreasonable. [133] As stated, at paragraph 119 of Vavilov: “The specialized expertise and experience of administrative decision makers maysometimes lead them to rely, in interpreting a provision, on considerations that a court would not have thought to employ but that actuallyenrich and elevate the interpretive exercise.” The

interpretation of “social origin” and “ethic origin” is within the background, experienceand expertise of the Executive Director. I defer to the Executive Director’s experience and expertise, and I find the Decision is theproduct of that demonstrated expertise. (ii) Other Statutory or Common Law Constraints [134] The Decision cites previous decisions in relation to both asserted prohibited grounds of discrimination, thereby respectingnonbinding authority and seeking consistency in application and

interpretation. This is done within the confines of the areas of reviewgranted to the Executive Direction, the key in this context being jurisdiction. (iii) Principles of Statutory

Interpretation [135] The Act does not define social origin or ethnic origin. Both terms are rooted in origin, commonly understood as beginning, or aperson’s personal history. One’s origin is immutable and does not change based on the residency whims of third parties. The ExecutiveDirector uses both previous decisions and common sense in

interpretation of these terms. This is in accord with the recommended“modern principle” approach or employing the grammatical and ordinary sense of terms in interpreting them. [136] I agree with Yeadon’s submission that Human Rights legislation is meant to be protective, remedial legislation. The Act, as thePreamble recognizes, seeks to ensure that “every individual” and “every person” are equal in dignity and right without regard toenumerated protected characteristics. However, not every differential treatment falls within the corners of the Act.

The complained ofbehavior must have its basis in a prohibited ground / protected characteristic.

Yeadon’s, the Executive Director held, did not. [137] As noted in Vavilov (at para. 121), in administrative proceedings where the meaning of a statutory provision is in dispute, it is the“task” of the administrative decision maker to “interpret the contested provision in a manner consistent with the text, context andpurpose, applying its particular insight into the statutory scheme at issue.” The Act tasks the Executive Director to interpret jurisdictionbased on the existence of an engaged prohibited ground of discrimination.

The Executive Director performed this task as required anddetermined that social origin and/or ethnic origin do not stretch so far as to include “nonresident anglers without direct relatives residingin Newfoundland and Labrador.” There is no identifiable flaw in the Executive Director’s chain of reasoning. [138] Furthermore, there is nothing unreasonable about the outcome of the Decision or the statutory

interpretation the ExecutiveDirector applied, even though the Decision makes no reference to Act’s

Preamble. The Executive Director is presumed to know thePreamble and how it functions with

interpretation of the Act’s provisions. [139] Likewise, the Decision is not lacking in “legal sufficiency” because it fails to set out the definition of “discrimination.” I acceptGNL’s submission that the Executive Director is not required to do so. The subject matter of discrimination is the Executive Director andCommission’s area of expertise.

They are considered the authority in discrimination matters and presumed to know the definition ofdiscrimination, as it is in an area of the law they work day-in and day-out. (iv) Evidence Before the Decision Maker [140] The current complaint is a unique one in that there is no disputed evidence. The question is a simple one entirely of statutoryinterpretation. Were this matter to have been decided by a board of inquiry, the materials would have been the same as reviewed by theExecutive Director – the legislation involved and the submissions of Yeadon and GNL.

As such, the Executive Director had all relevantevidence before her in making the Decision. [141] The relief Yeadon seeks is for the Court to make a finding that the impugned legislation is discriminatory since the evidence isnot in dispute. That would be stepping into the role and responsibility that the legislature left to the Executive Director. Since theevidence before the decision maker is not in dispute, the application of the facts to the law is a matter of statutory

interpretation for theExecutive Director to apply and decide. (

v) Submissions of the Parties [142] As noted above, the Executive Director had several submissions from the Yeadon prior to GNL’s request that the matter bedismissed on the basis of lack of jurisdiction. The Executive Director also received Yeadon’s response to this request. All submissionswere considered and adequately dealt with in the Decision. (vi) Past Practices and Decisions [143] The

interpretation of social origin and ethnic origin is consistent with previous Human Rights tribunal decisions as cited in theDecision. [144] GNL’s submissions make it apparent that the

interpretation of ethnic origin provided in the Decision is also consistent with caselaw that has tied this enumerated ground to immutable characteristics such as place of birth: Ayangma v. Canada Health Infoway Inc.,2012 CarswellPEI 58, (HRC), at para. 37. While the definition of “ethnic or national origin” is not the focus of theAyangma decision, it is clear that Mr. Ayangma was “of African origin” meaning from Africa, was accepted as the basis for his

protection under “ethnic or national origin.” [145] Similarly, in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (BombardierAeronautique Centre de formation), 2015 SCC 39, the ethnic or national origin of Mr. Latif was noted at paragraph 9 to be “a Canadiancitizen born in Pakistan” – relating it clearly to the immutable characteristic of place of birth. This decision, in part, dealt (at para. 18)with

section 10 of the Quebec Charter of Human Rights and Freedoms, CQLR c.

C-12, which lists “ethnic or national origin” as oneprotected characteristic as well. [146] While Yeadon and other persons that do not live in or have direct relatives in NL do have something in common, it is not a sharedattribute that defines ethnicity such as culture, religion, ancestry, language, etc. (vii) Impact of the Decision on the Affected Individual [147] The extensive submissions of Yeadon as to the impact, both financial and in relation to his comfort levels while angling on theIsland, were available to the Executive Director in arriving at the Decision.

While not directly commented upon, GNL submits that theseconcerns would not fall within the realm of potentially causing significant impact or harm that would suggest they be directly addressedin detail. I agree. [148] People are treated differently every day in Canada. It is unavoidable in the Canadian federation with provincial boundaries andjurisdiction. The division of powers not only permits differential treatment based upon province of residence, it mandates and encouragesgeographical distinction: R. v.

S. (S.), (SCC), [1990] 2 SCR 254. [149] The only time that the Commission and the Act are engaged is if these differences are protected characteristics that cause adverseeffects and impacts on individuals. If Yeadon was being treated differently than other nonresident anglers because he has a disability orbecause of his gender, the Act may be engaged. If he is being treated differently because of where his relatives choose to live, it is not. [150] Yeadon tries to distinguish the GNL’s submissions that his argument is rooted in place of residence, based on where anindividual’s direct relatives reside.

He submits this rationale in fact puts in issue an individual’s descent line or ancestry. The stipulationin the Regulations, respecting where one’s direct relatives are resident, serves as a proxy for rooting out or identifying an individual’sancestry, and as such, it is a device by which the Regulations attempt to avoid being caught by the prohibition against discrimination onthe basis of “ethnic origin” and “social origin.” [151] With respect, the Executive Director did not see it this way and she had the authority and expertise to decide as she did.

It is notthe Court’s role in exercising reasonableness review to second guess the decision maker, and to impose a statutory

interpretation ascharacterized and desired by the complainant. Concluding Comments on Reasonableness [152] When viewed as a whole in light of the legislative authority granted the Executive Director by

section 32 of the Act, and guidedby the principles outlined in Vavilov, Yeadon has failed to show that the Decision to dismiss his complaint was unreasonable. [153] The Executive Director outlined the manner in which she determined that neither of the asserted protected grounds (social originor ethnic origin) were engaged by the Wild Life Act and Regulations requirement that nonresident anglers without direct relatives residentin the Province employ a guide when angling. This group is not defined by their origin in any way, more specifically in this context, theirsocial or ethnic origin.

They are defined by the residency choices of their direct relatives. The Decision was concise, clear and logical. Itrelied upon precedent and did not step outside of the statutory authority explicitly granted to the Executive Director. Issue 3: Did the Commission breach any procedurAL fairness owed to Yeadon that would justify setting aside the Decision? [154] Yeadon submits the Decision should be set aside because it is the product of a process that failed to adhere to the requirements ofprocedural fairness.

I will explain why Yeadon was not denied the requirements of procedural fairness that he claims. [155] There is appellate authority for the Court not needing to engage in an assessment of the appropriate standard of review when aparty alleges a breach of procedural fairness: Aylward v. Law Society of Newfoundland and Labrador, 2013 NLCA 68, (at para. 19). If Ihad concluded that the Commission breached material procedural fairness owed to Yeadon, such as to cast a cloud over the fairness ofthe process, I would have set the Decision aside.

The proper course would then be to remit the matter to the Commission forreconsideration with directions on according appropriate procedural safeguards to Yeadon. (

i) The failure to provide Yeadon with the opportunity to address case law relied on in the Decision [156] First, Yeadon claims that the Decision relies heavily on the decision in Dobbin, a decision that GNL did not raise in the course ofits brief submitted in support of its

section 32 application to dismiss. [157] The Dobbin decision came forward at the instance of the Executive Director. That the Executive Director can, and in someinstances, should raise a decision not cited or considered by the parties is not disputed by Yeadon. The issue, from his perspective, is theprocess that should have been followed by the Executive Director upon adopting the analysis in a decision that was not raised or arguedby the parties. [158] The Alyward decision (at para. 32) notes that extensive procedural rights during the screening stage of a complaint defeats thepurpose of the screening function.

Nevertheless, I find that the Executive Director afforded Yeadon due process and proper proceduralsafeguards, as Stack J similarly found in Chiasson, (at para. 30).

[159] The Commission gave notice to the parties this matter was being considered for dismissal and the opportunity to respond. TheRecord shows Yeadon was sent a notification that his complaint was being considered for dismissal. The email notice outlined therelevant sections of the Act, and invited Yeadon to provide any further information he deemed relevant within 30 days, including: “Abrief

summary of why you think the complaint should not be dismissed; and any new information or evidence to support your position.” [160] Yeadon replied to the Commission outlining additional information he deemed relevant. This was his opportunity to address anyfurther concerns or make additional submissions – all of which amounts to procedural fairness. [161] While Yeadon takes issue with the Executive Director referring to a case in the Decision not raised by GNL, it is commonpractice for a decision maker to cite authorities supporting the decision being made.

There is no obligation on a decision maker to askparties to comment specifically on case law relied upon, unless the case law marks a change in the law. The Dobbin decision rendered in2005 did not change the law on residency and, in fact, was quoted and applied in the Gardezi decision (at paras. 37 and 38). By nomeans were these new authorities or a change in the law. [162] I would also note, as outlined by Commission counsel, the Commission is an informal dispute-resolution process that dealsprimarily with unrepresented parties.

It would unduly complicate and delay an informal, accessible process to make it obligatory for theExecutive Director, after providing the parties with ample opportunity to make submissions, to invite further submissions on caseauthorities grounding the dismissal decision. [163] The Supreme Court in Canada (Attorney General) v. Mavi, 2011 SCC 30 (at para. 40) held that procedural fairness is a balancebetween the burden of implementing the suggested process and the effect it would have for complainants.

It would prolong the process torequire the Executive Director to put to the parties every case authority before rendering a dismissal decision, and add an unnecessaryburden to parties, thus limiting rather than enhancing access to an expeditious process for resolution of discrimination complaints. [164] Yeadon was afforded procedural fairness, and there was no need for the Executive Director to invite Yeadon to comment on theDobbin decision before dismissing his complaint. (ii) The Failure to Provide Yeadon with In-house Counsel’s Internal Legal Opinion Memorandum that the Executive Director Relied onfor the Decision [165] Second, Yeadon claims a breach of procedural fairness in that the Commission failed to provide its staff in-house counsel’sinternal legal opinion memorandum that went to the Executive Director to aid in the Decision. [166] He submits two issues arise from this: (

i) whether solicitor-client privilege applies to internal written communications; and (ii)whether the privilege has been waived by the Commission. (

i) Whether solicitor-client privilege applies to internal written communications [167] I find solicitor-client privilege applies to the in-house internal written communications. [168] GNL takes no position on the question of solicitor-client privilege regarding a legal opinion referenced in the Commission’swritten submissions.

GNL is not privy to, nor does it seek, the contents of the legal opinion. [169] I accept the submission of counsel for the Commission that because most complainants are unrepresented (and manyrespondents), the Commission staff solicitor engages in the relevant legal research on behalf of the parties. For hearings, the solicitorsubmits a plain language legal brief that establishes the legal thresholds for the parties and the adjudicator. For Executive Directorreviews, the in-house solicitor writes a confidential legal opinion to assist the decision maker.

These legal opinions set out the legislativeconstraints, the facts of the particular complaint, and the relevant case law. I am satisfied the nature of the confidential legal opinionhere falls within solicitor-client privilege. [170] Yeadon views the “confidential legal opinion,” submitted to the administrative decision maker, as being no more and no less thanan internal staff report, one that was not made available to the parties for comments/submissions.

This internal staff report, in hissubmission, falls into the same category as the information that was provided to the warden but not made available to the inmate inKh

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