2012 NBCA 42, 2012 NBCA 42

COURT OF APPEAL OF NEW BRUNSWICK 128-11-CA WARREN McCONNELL (Applicant) APPELLANT WARREN McCONNELL (Requérant) APPELANT - and - - et - BRUNSWICK NEWS INC., NOUVELLESBRUNSWICK INC., a body corporate (Respondent) RESPONDENT BRUNSWICK NEWS INC., NOUVELLESBRUNSWICK INC., corps constitué (Intimé

e) INTIMÉE - and - - et - NEW BRUNSWICK HUMAN RIGHTSCOMMISSION (Respondent) RESPONDENT COMMISSION DES DROITS DE LA PERSONNEDU NOUVEAU-BRUNSWICK (Intimé

e) INTIMÉE McConnell v. Brunswick News Inc., NouvellesBrunswick Inc. and New Brunswick Human RightsCommission, 2012 NBCA 42 McConnell c.

Brunswick News Inc., NouvellesBrunswick Inc. et Commission des droits de lapersonne du Nouveau-Brunswick, 2012 NBCA 42 CORAM: The Honourable Justice Turnbull The Honourable Justice Robertson The Honourable Justice Green CORAM : L’honorable juge Turnbull L’honorable juge Robertson L’honorable juge Green Appeal from a decision of the Court of Queen’sBench: August 25, 2011 Appel d’une décision de la Cour du Banc de la Reine: Le 25 août 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 224 Décision frappée d’appel : 2011 NBQB 224 , 2011 NBBR 224 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: February 23, 2012 Appel entendu : Le 23 février 2012 Judgment rendered: April 26, 2012 Jugement rendu : Le 26 avril 2012 Reasons for judgment by: The Honourable Justice Robertson Motifs de jugement : L’honorable juge Robertson Concurred in by: The Honourable Justice Turnbull The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Turnbull L’honorable juge Green Counsel at hearing: For the appellant: Trisha E.M. Gallant-LeBlanc For the respondent Brunswick News Inc., Nouvelles Brunswick Inc.: Matthew R. Letson and Kelly T.

VanBuskirk No one appeared for the respondent New Brunswick Human Rights Commission Avocats à l’audience : Pour l’appelant : Trisha E.M. Gallant-LeBlanc Pour l’intimée Brunswick News Inc., Nouvelles Brunswick Inc. : Matthew R. Letson et Kelly T. VanBuskirk Personne n’a comparu pour l’intimée Commission des droits de la personne du Nouveau-Brunswick. THE COURT The appeal is dismissed with costs of $2,500 payable to the respondent, Brunswick News Inc., Nouvelles Brunswick Inc. LA COUR L’appel est rejeté avec dépens de 2 500 $ à verser à l’intimée Brunswick News Inc., Nouvelles Brunswick Inc.

The judgment of the Court was delivered by ROBERTSON J.A. [ 1 ] This appeal is from the dismissal of an application for judicial review of a decision of the Labour and Employment Board, acting as a Board of Inquiry under the Human Rights Code , R.S.N.B. 1973, c. H-11 (today R.S.N.B. 2011, c. 171 ). The Board had been appointed to determine the merits of several allegations of employer discrimination. On a preliminary matter, the single-member Board ruled that all but one of the alleged instances of discrimination were outside the Code’s one-year limitation period.

While the Commission possesses the jurisdiction to extend the period, the Board held that the Commission had failed to do so and,

therefore, those allegations were statute-barred. The Board also rejected the Commission’s jurisdictional argument that the limitation issue had to be decided in the Court of Queen’s Bench. However, the Board went on to address the merits of all of the allegations, lest its ruling be quashed on judicial review. Over the following 12 months, the Board held 17 days of hearings. Its decision is 101 pages in length and embraces 186 paragraphs. While the Board concluded none of the discrimination allegations had been substantiated, provisional assessments were made with respect to the various claims for damages.

The Board also held costs could be awarded to a successful complainant under the Code . In total, the appellant was seeking nearly $700,000 in compensation. [ 2 ] On judicial review, six issues were raised, but the application judge found no basis for interference with the Board’s decision. Only three issues are raised on this appeal. The application judge erred: (1) in upholding the Board’s ruling with respect to the limitation issue; (2) with respect to the onus placed on the complainant to establish discrimination; and (3) by failing to consider the employer’s duty to accommodate the employee.

As will be made apparent, the appellant (hereinafter the “complainant”) cannot succeed on this appeal unless he persuades us that the application judge erred on the first issue, that is to say, the limitation issue. However, as I find no merit in regard to issues (2) and (3), there would be no need to deal with the limitation issue, save for the fact that recent jurisprudence of the Supreme Court casts doubt on the correctness of the Board’s limitation and jurisdictional rulings: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654.

The same holds true with respect to the Board’s ruling that costs may be awarded to a successful complainant: Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471. These reasons seek to ensure the decision of this Court is not cited as authority for propositions that must be revisited in the fullness of time and argument. [ 3 ] I start with the essential facts. All references to the Human Rights Code will be to the 1973 version which was applicable at the relevant time.

On June 10, 2002, the respondent employer, Brunswick News Inc. (hereinafter the “employer”), dismissed the complainant after 37 years of service. The employer alleged dismissal “for cause”. On December 4, 2002, the complainant filed a complaint with the New Brunswick Human Rights Commission, alleging employer discrimination on the ground of mental disability, as outlined in s. 3 of the Human Rights Code . The complaint alleged no less than five distinct instances of discriminatory treatment. On their surface, four would appear to be outside the one year limitation period set down in s. 17.1(1).

At the same time, s. 17.1(2) provides that the Commission may extend the limitation period if, in its opinion, an extension is warranted. Prior to the Commission ruling on whether or not the complaint raised an arguable case, the employer brought the limitation issue to the Commission’s attention. The complainant made no application to have the time line extended and the Commission remained silent with respect to this matter prior to and after recommending to the Minister responsible for the Code’s administration that an inquiry be held to consider the merits of the complaints.

The Minister accepted the Commission’s recommendation and, pursuant to s. 20(1)(b), elected to have the Labour and Employment Board conduct the inquiry. [ 4 ] At the outset, the employer argued four of the five allegations of discrimination were statute-barred. Loosely stated, this is what happened. The complainant would take a temporary leave of absence from work due to mental health issues that clearly fell within s. 3 of the Human Rights Code . Upon his return to work, the complainant would be assigned a different job or task. This happened on several occasions.

In the discrimination complaint lodged with the Commission, the complainant argued his employer had failed in its duty to properly accommodate him. The fifth allegation of discrimination was tied to the employer’s decision to dismiss the complainant for cause.

As that allegation did not involve the duty to accommodate an employee, the Board concluded it was not dealing with a case of “continuing discrimination” such that the earlier instances of discrimination could take shelter under the umbrella of the fifth, thereby avoiding the application of the one-year limitation period. [ 5 ] The Board also rejected the Commission’s two additional arguments. First, the Commission argued for a presumption that the Commission did in fact extend the time for filing once it recommended to the Minister that the allegations proceed to the inquiry stage.

The Board rejected the argument for the following reason: “It seems to me that in order to constitute a decision to extend the time and be subject to review, there must be some evidence that the deciding body met, considered the merits of the issue, and articulated a decision” (para. 110). As there was no evidence of the Commission dealing with the limitation issue, the Board concluded there could be no implicit extension of time. [ 6 ] The Commission’s second argument was that the Board lacked the jurisdiction to determine whether any of the allegations were statute-barred under s. 17.1(1).

The Commission maintained the jurisdiction rested with the Court of Queen’s Bench on an application for judicial review. So too did the Board reject this argument. The Board noted the jurisprudence was replete with examples of human rights tribunals interpreting and applying the relevant limitation periods.

Having regard to the provisions of the Code, the Board concluded it possessed the requisite jurisdiction, otherwise “[t]o bifurcate the process and exclude the application of the limitations provision from the Board’s jurisdiction would offend the general principle that all disputes between the same parties relating to the same issue are to be disposed of at the same time, s. 26(9) Judicature Act ” (para. 111). Parenthetically, s. 26(9) of the Judicature Act , R.S.N.B. 1973, c.

J-2, authorizes the courts to grant both legal and equitable relief in the same proceeding. [ 7 ] In brief, the Board concluded those discrimination allegations tied to the duty to accommodate were statute- barred, leaving for consideration the allegation of discrimination tied to the complainant’s dismissal from his job. However, the Board also ruled that if it were “mistaken” on the limitation issue, the merits of the various allegations of discrimination should be examined and decided.

The Board did so and concluded that the employer had not discriminated against the appellant on any of the grounds raised in the complaint. The Board also made provisional assessments with respect to the various damage claims. Finally, the Board concluded

that should the complainant be successful in any of his claims, the Board possessed the jurisdiction to award costs to the successful complainant. However, the costs issue was decided without the Board having the benefit of the Supreme Court’s recent decision in Canada (Canadian Human Rights Commission) . In that case, the Court ruled the federal human rights tribunal did not possess the jurisdiction to award costs to a successful complainant.

The interpretative arguments advanced in that case in support of the right to award costs to this party only are similar to the ones considered by the Board in the present case. This is why the Supreme Court’s decision casts a long shadow over the Board’s ruling. [ 8 ] With respect to the limitation issue, the application judge made three rulings: see 2011 NBQB 224 , 376 N.B.R. (2d) 81. First, she held the Board’s finding that the Commission had not exercised its discretion to grant an extension of time was a question of fact, for which deference was owed.

Second, she agreed with the Board’s conclusion that it possessed the jurisdiction to decide whether some of the allegations were statute-barred. The application judge added: “It is just as reasonable to assume that because the Commission referred the whole matter, it wanted the Board to determine all questions which arose including the limitation defence” (para. 25).

Third, applying the review standard of reasonableness, the application judge held the Board’s finding that four of the five grounds of discrimination were statute-barred fell within the “range of possible outcomes”. [ 9 ] The limitation issue raises two discrete issues:

(1) Did the Commission implicitly extend the time for filing four of the five discrimination complaints?; and

(2) Does the Board possess the jurisdiction to rule on the limitation issue, or does that jurisdiction lie with the Court of Queen’s Bench on an application for judicial review? In my opinion, the second question qualifies as a true jurisdictional question, for which the review standard is correctness, a matter I shall deal with shortly. By contrast, the search for the proper review standard with respect to the first question is not self-evident. Based on the Board’s reasoning, there can be no such thing as an implicit extension of time because of the requirement to provide reasons.

Now let us compare the Board’s approach to the one adopted by the Supreme Court in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association . In fairness, it must be recognized that the Supreme Court decision was released after the Board had rendered its decision. [ 10 ] The truncated version of the facts in Alberta Teachers’ Association is as follows. The Alberta Privacy Commissioner received complaints that the Alberta Teachers’ Association had disclosed private information in contravention of the Alberta Personal Information Protection Act , S.A. 2003, c. P-6.5 (“ PIPA ”).

Under PIPA , the Commissioner had 90 days in which to complete an inquiry, unless he notified the parties he was extending time and provided them with an anticipated date for completion. The Commissioner took 22 months before extending the time and it took an adjudicator, delegated by the Commissioner, another seven months to issue an order finding that the Alberta Teachers’ Association had breached PIPA .

The Association applied for judicial review and, for the first time, argued before the “chambers judge” that the Commissioner had lost jurisdiction because of his failure to grant the extension within the 90-day timeline. The chambers judge accepted the argument, as did the majority of the Alberta Court of Appeal.

On further appeal, the Supreme Court of Canada outlined several issues: (1) whether the timeline issue should have been dealt with on judicial review, even though the matter had not been raised before the Commissioner or adjudicator; (2) correlatively, whether the matter should be remitted to the adjudicator for a determination; (3) if the matter was to be dealt with on judicial review, what the applicable standard of review would be, having regard to the fact there were no reasons for decision; (4) whether the timeline issue was a true jurisdictional question, for which the review standard would be correctness. [ 11 ] The Supreme Court held it permissible to raise the timeline issue before the chambers judge as there was no evidentiary inadequacy or prejudice to the parties.

The Court also held the notion of a tribunal rendering an implicit decision is sustainable, even though there is a lack of reasons. The reviewing court is entitled to look at the reasons that could have been given had the issue been raised before the tribunal. Moreover, the implicit decision is owed deference on the standard of reasonableness. The headnote to the decision provides a convenient

summary of the Supreme Court’s approach: The deference due to a tribunal does not disappear because its decision was implicit. Parties cannot gut the deference owed to a tribunal by failing to raise the issue before the tribunal and thereby mislead the tribunal on the necessity of providing reasons.

When the decision under review concerns an issue that was not raised before the decision-maker, the reviewing court can consider reasons which could have been offered in support of the decision. [ 12 ] In Alberta Teachers’ Association , the Supreme Court framed the pivotal question in terms of the adjudicator “implicitly” deciding that the Commissioner’s failure to grant the extension within the 90 day timeframe did not result in the automatic termination of the inquiry.

Applying the review standard of reasonableness, courts are instructed not to “interfere” so long as there is “a reasonable basis upon which the decision maker could have decided as it did” (para. 53). To assist in determining whether there is a “reasonable basis”, it is permissible to examine the reasons given by the tribunal in other cases dealing with the same or a similar interpretative issue. Let me explain. [ 13 ] The interpretative issue in Alberta Teachers’ Association involved s. 50(5) of PIPA , which is one of the Commissioner’s home statutes.

However, the same interpretative issue arises under s. 69(6) of the Freedom of Information and Protection of Privacy Act , R.S.A. 2000, c. F-25 (“ FOIPA ”), which is also one of the Commissioner’s home statutes. Applying s. 69(6) of FOIPA , the Commissioner had earlier held the timeline could be extended after the expiration of the 90 days. Within this factual context,

the Supreme Court held there was a reasonable basis on which the Commissioner and adjudicator could have decided the issue, had itbeen raised before them. Ultimately, the Supreme Court was unanimous in holding the implicit

interpretation given to the legislation bythe adjudicator was a reasonable one and the courts below had erred in concluding otherwise. [14] The Supreme Court addressed whether the timeline issue was a true jurisdictional question and, hence, to bereviewed on the standard of correctness. The Court ruled the interpretative issue was not jurisdictional; a ruling which is consistent witha much earlier decision of the Court, but which attracted only a passing reference in one of the three concurring opinions: see Syndicatdes professeurs du collège de Lévis-Lauzon v.

CEGEP de Lévis-Lauzon, (SCC), [1985] 1 S.C.R. 596, [1985] S.C.J. No.29 (QL). However, the Supreme Court was seriously divided on the approach to be taken when determining whether the law shouldcontinue to recognize a category of “true jurisdictional question”, for which correctness would be the proper review standard. On thispoint, the decision offers three sets of concurring reasons. [15] Writing for the majority, Rothstein J. held that as great uncertainty had continued to plague the existence of acategory of true jurisdictional issues, it was appropriate that a tribunal’s

interpretation of its home statute should be presumed to be aquestion of statutory

interpretation subject to deference on the review standard of reasonableness. Rothstein J. expressed the presumptionin the following manner: “As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required todemonstrate why the court should not review a tribunal’s

interpretation of its home statute on the deferential standard of reasonableness”(para. 39). Alternatively stated, Rothstein J. held the law should proceed on the assumption that a question of law, tied to the tribunal’shome statute or a closely related one, is not jurisdictional in nature. Binnie J. offered another approach. If the issue before the reviewingcourt relates to the

interpretation or application of the tribunal’s home statute or a related statute, and the issue does not raise matters oflegal importance beyond the statutory scheme under review, the court should accord deference to the tribunal’s decision. So too doesCromwell J. reject the use of a presumption when it comes to identifying jurisdictional issues. But he also distances himself from theapproach of Binnie J. Instead, Cromwell J. shifts the emphasis to examining the intent of the legislature. As an aside, Cromwell’sapproach is reminiscent of the once seminal decision of Beetz J. in U.E.S., Local 298 v.

Bibeault, (SCC), [1988] 2 S.C.R.1048, [1988] S.C.J. No. 101 (QL). It was in that case that the “pragmatic and functional approach” was first promulgated, not forpurposes of deciding the proper standard of review, but for determining whether or not an issue was truly jurisdictional. [16] Returning to the case at hand, the decision in Alberta Teachers’ Association forces the question of whether theBoard and the application judge erred in rejecting the argument that, in recommending the complaint move to the inquiry stage, theCommission must have implicitly decided to grant an extension of time under s. 17.1(2).

The argument is all the more compelling once itis recognized that, according to the Supreme Court, the lack of reasons is not a sufficient ground for rejecting the Commission’sargument. If that is so, the Board’s finding that the Commission could not have implicitly granted an extension is, at the very least,difficult to sustain.

This leaves for consideration the jurisdictional question: Who decides whether a particular allegation ofdiscrimination is statute-barred: the Labour and Employment Board, acting as a Board of Inquiry, or the Court of Queen’s Bench? [17] While the Supreme Court has effectively restricted the ambit of the notion of jurisdictional issues, the Courtcontinues to recognize that questions regarding the “jurisdictional lines between two or more competing specialized tribunals” so qualifyand, therefore, attract the review standard of correctness.

While I am not suggesting that the Court of Queen’s Bench qualifies as aspecialized tribunal, in the sense in which the Supreme Court was speaking, clearly the question posed herein must be regarded asjurisdictional in scope. That being so, the proper review standard must be correctness with respect to the Board’s finding that it possessesthe jurisdiction to determine whether a complaint is statute-barred, rather than the Court of Queen’s Bench.

That issue is distinct fromthe question of whether an allegation is statute-barred, a question which does not raise a jurisdictional issue so as to attract the reviewstandard of correctness. [18] In the present case, the Board’s jurisdictional ruling hinges primarily on the general understanding that the lawseeks to avoid the bifurcation of administrative decision-making processes. In other words, the jurisdiction of the Board to make rulingswith respect to the limitation issue arises by necessary implication.

If one accepts that line of reasoning, it should follow that the Boardalso possesses, for example, the jurisdiction to rule on whether the Commission and Minister erred in finding that the complainant raisedan arguable case, which is the test to be applied when ruling on whether a discrimination complaint should go to the inquiry stage.However, the existing jurisprudence of this Court supports the understanding that a recommendation to move forward with an inquirymay be challenged on judicial review in the Court of Queen’s Bench: see New Brunswick Human Rights Commission v.

Province of NewBrunswick (Department of Social Development), 2010 NBCA 40, 360 N.B.R. (2d) 283, and the Federal Court cases cited therein. Inshort, bifurcation of the decision-making process is an accepted facet of the process applicable to the handling of discriminationcomplaints under New Brunswick’s Human Rights Code and under the federal legislation.

Finally, the notion that the Board possessesthe jurisdiction to rule on whether a complaint is statute-barred raises yet another question: Was it the intention of the Legislature that aBoard of Inquiry would sit on review of preliminary rulings made by the Commission and accepted by the Minister? This question ismuch broader than the one posed on this appeal and should be addressed when the circumstances are apposite. [19] One final comment with respect to the jurisdiction of the Board is warranted. The Commission made no formalruling on whether the limitation period should be extended.

But if the matter had been remitted to the Commission, there can be no doubtthat time would have been extended. After all, the Commission was aware of the employer’s objection based on four of the fiveallegations of discrimination, yet all five of the allegations were placed before the Board following the Minister’s acceptance of the

Commission’s recommendation to appoint a Board of Inquiry. Arguably, the employer would have difficulty in opposing an extension oftime on the basis of prejudice. All of the allegations occurred within a two-year period. [20] As noted at the outset, this appeal could have been decided without reference to the limitation issue once thecomplainant’s two substantive grounds of appeal were found materially wanting. In my respectful view, the two grounds lack merit.

Butfor the precedential significance of the Board’s ruling on the limitation and jurisdictional issues, and but for the fact those rulings wereaffirmed on judicial review, I would not have been compelled to deal with them in the manner outlined above. [21] I turn now to the complainant’s remaining two grounds of appeal. The complainant’s first argument flowsfrom the following factual scenario. In January of 2000, the complainant’s state of mental health required his absence from work in hiscapacity as Circulation Supervisor.

During his seven month absence, the position was abolished and upon his return to work, he wasgiven a new job as Assistant Mailroom Supervisor at the same rate of pay. Before the Board, the complainant argued the employer hadrefused to place the complainant in his old position of Circulation Supervisor for fear that his disability might materialize if he assumedhis old duties.

However, the only evidence which the complainant relied on to support his argument came in the form of a submission.The complainant asked the Board to draw an inference that the Circulation Supervisor position was eliminated due to his disability,having regard to the timing of the employer’s decision.

The Board rejected the complainant’s argument on the basis of factual findings:(1) the position of Circulation Supervisor did not exist at the employer’s other newspapers; and (2) there was evidence from severalwitnesses to support the claim that the position was abolished as part of a corporate restructuring. [22] In my view, there is no basis for interfering with what is essentially a finding of fact by the Board.

Admittedly,the complainant has recast the issue in terms of the Board applying the wrong legal test with respect to ascertaining whether thecomplainant had established a prima facie case of discrimination. The argument is without merit for this reason. The Board may wellhave accepted that the timing of the employer’s decision to eliminate the position of Circulation Supervisor raised an inference that itwas done for reasons tied to the complainant’s repeated absences from work for mental health reasons.

It was also open to the Board toconclude that the inference was sufficient to establish a case of prima facie discrimination. However, the employer led evidence to rebutthe inference, which evidence the Board found credible and compelling, and this is why the complainant’s argument cannot succeed. [23] The complainant’s final ground of appeal is that the trial judge erred in failing to consider the employer’sprocedural duty to accommodate.

As I understand it, the argument flows from the allegation that the employer failed to reasonablyaccommodate the complainant when he was given the job of Assistant Mailroom Supervisor. The argument is that the employer failed toproperly assess the complainant and to consider whether there was an alternate and more fitting position he could perform that wasconsistent with his experience, skills and potential. The employer acknowledges that in British Columbia (Public Service EmployeeRelations Commission) v. BCGSEU, (SCC), [1999] 3 S.C.R. 3, [1999] S.C.J.

No. 46 (QL), the Supreme Court decidedthat the procedure used by an employer in considering how to reasonably accommodate is relevant in considering whether an employeehas been accommodated to the point of undue hardship.

The Supreme Court in BCGSEU stated: Notwithstanding the overlap between the two inquiries, it may often be useful as a practical matter to consider separately, first, theprocedure, if any, which was adopted to assess the issue of accommodation and, second, the substantive content of either a moreaccommodating standard which was offered or alternatively the employer's reasons for not offering any such standard […]. [para. 66] [24] The employer also acknowledges jurisprudence which suggests that there may be a separate procedural duty toaccommodate that is distinct from the substantive duty to accommodate.

However, there is also jurisprudence to the contrary: see ADGAGroup Consultants Inc. v. Lane, (ON SCDC), [2008] O.J. No. 3076 (S.C.J.) (QL), and compare with EmergencyHealth Services Commission v. Cassidy, 2011 BCSC 1003, [2011] B.C.J. No. 1426 (QL). Regardless of the state of the law governingthe accommodation duty, the record and the Board’s decision are replete with instances in which the employer engaged the complainantin discussions regarding suitable work and the need to ensure that the complainant was not placed in a stress-filled work environment.

Inmy view, the Board’s finding of reasonable accommodation has not been shown to fall outside the “range of acceptable outcomes”, as isrequired when applying the review standard of reasonableness. [25] The appeal should be dismissed with costs of $2,500 payable to the respondent, Brunswick News Inc. ____________________________________ J.T. ROBERTSON, J.A.

WE CONCUR: ____________________________________ WALLACE S. TURNBULL, J.A. _____________________________________ BRADLEY V. GREEN, J.A.