2012 NBCA 41, 2012 NBCA 41

COURT OF APPEAL OF NEW BRUNSWICK 99-11-CA JOHN SMITH APPELLANT JOHN SMITH APPELANT - and - - et - PROVINCE OF NEW BRUNSWICK (Department of Public Safety) RESPONDENT PROVINCE DU NOUVEAU-BRUNSWICK (Ministère de la Sécurité publique) INTIMÉE - and - - et - NEW BRUNSWICK HUMAN RIGHTS COMMISSION RESPONDENT COMMISSION DES DROITS DE LA PERSONNE DU NOUVEAU-BRUNSWICK INTIMÉE Smith v. Province of New Brunswick (Department of Public Safety) and New Brunswick Human Rights Commission, 2012 NBCA 41 Smith c.

Province du Nouveau-Brunswick (Ministère de la Sécurité publique) et Commission des droits de la personne du Nouveau-Brunswick, 2012 NBCA 41 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’s Bench: June 20, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 20 juin 2011 History of Case: Historique de la cause : Decision under appeal: 2011 NBQB 162 Décision frappée d’appel : 2011 NBBR 162 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: January 26, 2012 Appel entendu : Le 26 janvier 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: Kelly T. VanBuskirk and David M. Brown For the respondent Province of New Brunswick (Department of Public Safety): Andrea M.

Folster For the respondent New Brunswick Human Rights Commission: Chantal Gauthier Avocats à l’audience : Pour l’appelant : Kelly T. VanBuskirk et David M. Brown Pour l’intimée la Province du Nouveau-Brunswick (Ministère de la Sécurité publique) : Andrea M. Folster Pour l’intimée la Commission des droits de la personne du Nouveau-Brunswick : Chantal Gauthier THE COURT The appeal is dismissed. Each respondent is entitled to costs of $2,500. LA COUR L’appel est rejeté. Chaque intimée a droit à des dépens de 2 500 $.

The judgment of the Court was delivered by ROBERTSON J.A. [ 1 ] The appellant, a correctional officer employed at the Saint John Regional Correctional Centre, filed a complaint with the New Brunswick Human Rights Commission, alleging employer discrimination based on physical and mental disability as described in s. 3(1) of the Human Rights Code , R.S.N.B. 1973, c. H-11 (now R.S.N.B. 2011, c. 171 ). Guided by an investigator’s detailed report, the Commission dismissed the complaint as lacking merit. In turn, a judge of the Court of Queen’s Bench dismissed the application for judicial review.

After hearing from counsel for the appellant, we dismissed the appeal, with reasons to follow. These are my reasons. Their precedential significance is tied to two matters: (1) sufficiency of the Commission’s reasons; and

(2) the Commission’s standing on the application and appeal. [ 2 ] The underlying facts are as follows. In 1991, the appellant (hereinafter the “complainant”) began working as a corrections officer with the respondent Province (hereinafter “employer”) at the Saint John Regional Correctional Centre. In 1993, he suffered a work-related injury to his back and was off work for just over one month. From June 1, 2001 to June 3, 2003, the complainant was off on medical leave attributed to his 1993 injury.

When the complainant returned to work after this extended medical leave, his physical disability was accommodated in two ways. First, the complainant was placed in the “control room” and, second, he was provided with ergonomic equipment. However, the complainant’s disability required three further medical leaves of absence from the workplace in 2004 and 2005, following which the complainant elected to pursue further educational opportunities. On June 12, 2006, he returned to the Correctional Centre in his accommodated position in the control room.

At this point, the complainant alleged that he was being subjected to harassment from several co-workers and his shift supervisor. On May 8, 2007, the complainant became involved in a physical altercation with a co-worker. The complainant alleged the altercation stemmed from ongoing harassment. Both employees filed complaints with their employer. On May 14, 2007, the complainant also filed a complaint with the Commission alleging discrimination on the basis of physical and perceived mental disability. On May 15, 2007, the complainant was placed on leave by his employer, but his co-worker was not.

On June 5, 2007, the complainant was instructed to undergo a psychological examination by June 11, 2007. Otherwise, he would be placed on indefinite leave. In July of 2007, the complainant capitulated and underwent the psychological assessment. In August of that year, the psychologist concluded the complainant did not suffer from any personality disorders. Following the assessment, the complainant did not return to work, on the ground he was suffering from depression. The complainant was required to use his accumulated vacation days and banked time before he returned to work.

The complainant did not return to work until March of 2008. At that time, he was placed on a different shift and was no longer working with the same employees. [ 3 ] In late October of 2008, the employer provided its response to the discrimination complaint. The complainant provided a rebuttal in November of the same year. On November 26, 2009, the complainant received a copy of the Commission’s “Case Analysis Report” prepared by Ms. Jennifer LeBlanc, the Commission’s Manager of Investigations.

On December 11, 2009, the complainant submitted a rebuttal to the Report, together with a list of persons who should be interviewed and additional documentation. These matters were considered by the investigator, who subsequently augmented her report with a nine page addendum. The relevant documents, together with an executive

summary, were then placed before the Commission for its consideration. Ms. LeBlanc recommended that the complaint be dismissed. On February 18, 2010, the Commission dismissed the complaint for lack of merit. [ 4 ] Applying the review standard of reasonableness, the application judge concluded there was no basis to interfere with the Commission’s decision that the complainant had failed to establish an arguable case (reasonable basis). With respect to the allegation that the workplace harassment flowed from his physical and perceived mental disability, the application judge focused on Ms.

LeBlanc’s report, which concluded that if the complainant had in fact been harassed, the harassment was more in line with general issues of harassment in the workplace and not related to the complainant’s physical disability. The application judge cited the following passages from Ms.

LeBlanc’s report: The investigation neither proves nor disproves the Complainant’s specific allegations of harassment as outlined in the Case Analysis Report, however, the specific allegations appear to be in line with the Province of New Brunswick’s Workplace Harassment Policy, as opposed to being related to the Complainant’s physical disability.

The New Brunswick Human Rights Commission does not have the jurisdiction on matters of Workplace Harassment unless they are related to a protected ground under the Act. […] There is not sufficient information to support the Complainant’s allegations that the alleged harassment is related to his physical disability. It is therefore recommended that the Commission dismiss this aspect of the complaint. [paras. 19-20] [ 5 ] The application judge’s analysis continues with his understanding of the findings of Ms. LeBlanc. There are two passages from his decision worthy of replication: In an executive

summary, page 545 of the record, the investigator reiterated the point made at paragraph 87 that, “The investigation neither proves nor disproves the Complainant’s specific allegations of harassment…” The investigator wrote that “The New Brunswick Human Rights Commission does not have jurisdiction in matters of workplace harassment unless they are related to [a] protected ground under the Act .” […]

In my view by this application the applicant Mr. Smith is in effect asking this Court to enlarge the jurisdiction of the Human RightsCommission to include complaints of workplace harassment to the protections of the Human Rights Act. [paras. 25, 29] [6] The above conclusion is the basis for one of the four grounds of appeal. The complainant submits theapplication judge erred in law by concluding the issue before him was whether the jurisdiction of the Commission could be enlarged toinclude allegations of workplace harassment.

As the issue is tied to what the application judge decided and raises a question of law, thereview standard of correctness must apply. I shall deal with this issue immediately. [7] In my view, the application judge did not look upon the primary issue in terms of whether the Commission’sjurisdiction should be enlarged to deal with complaints related to workplace harassment. Fairly interpreted, Ms. LeBlanc’s commentslead the reader to draw two conclusions. First, as a question of fact, it remains to be decided whether the complainant was exposed toworkplace harassment.

Second, even if the complainant were so exposed, there is no reasonable basis upon which to argue theharassment arose because of his physical disability. Having regard to the application record and Ms. LeBlanc’s report, the latterconclusion has a sufficient and logical foundation. As discussed below, it is apparent the issue of workplace harassment is not isolated toa single worker. The record reveals the relationship between correctional workers and management at the Saint John facility was lessthan ideal and had been the subject of an earlier third party independent assessment. In my view, Ms.

LeBlanc and, in turn, theapplication judge, were entitled to observe that the Code was not adopted for the purpose of providing unionized workers a convenientforum for airing industrial grievances.

The Commission has a legitimate concern to ensure it identifies only those cases wherediscrimination based on disability is ripe for adjudication on the standard of an arguable case. [8] There are three other grounds of appeal tied to the application judge’s failure to address issues raised andargued in the court below: (1) the Commission’s decision to dismiss the complaint is unsupported by sufficient reasons; (2) theinvestigation upon which the commission based its decisions was materially flawed; and (3) the application judge failed to addresswhether the complainant was discriminated against on the basis of a perceived mental disability.

I shall deal with the three issues in theorder stated. [9] The complainant maintains the Commission’s decision to dismiss his complaint is unsupported by sufficientreasons, that is to say, reasons that would allow for meaningful review. Admittedly, the Commission’s dismissal letter is two paragraphsin length and does not contain anything that would explain why the Commission held the complaint to be without merit. Thecomplainant argued the duty of fairness requires the Commission to provide sufficient reasons. The argument was based on the SupremeCourt’s decision in Baker v.

Canada (Minister of Citizenship & Immigration), (SCC), [1999] 2 S.C.R. 817, [1999]S.C.J. No. 39 (QL). Since the alleged error involves an alleged breach of the fairness duty, everyone agrees the applicable standard ofreview is correctness. As to the duty to provide sufficient reasons in the context of criminal and civil proceedings, see R. v. Sheppard,2002 SCC 26, [2002] 1 S.C.R. 869; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R.v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 and F.H. v.

McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41. [10] As a starting point, there is a clear difference between failing to provide any reasons and giving reasons whichare materially deficient, so as to support an allegation of insufficient or deficient reasons for decision. The distinction is borne out by theSupreme Court’s recent decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011SCC 62, [2011] 3 S.C.R. 708, which harkens back to the Court’s decision in Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190, and its understanding of the review standard of reasonableness. It will be recalled that, in Dunsmuir, the Court held: A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring to both the processof articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification,transparency and intelligibility within the decision-making process.

But it also concerned with whether the decision falls within a rangeof possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47] [11] The above passage led some to believe that the review standard of reasonableness was comprised of twodiscrete components. One relates to the sufficiency of the reasons, while the other asks whether the decision falls within the range ofacceptable outcomes.

Writing for a unanimous Court in Newfoundland and Labrador Nurses’ Union, Abella J. rejected the notion thatthe “adequacy” of reasons was a stand-alone basis for quashing a decision or, alternatively stated, that Dunsmuir stands for theproposition that a reviewing court must undertake two discrete analyses: one for the reasons and the other for the result. Instead, we arecautioned that the reasons must be read together with the outcome for the purpose of determining whether it falls within the range ofpossible outcomes. Quoting from the dissenting reasons of Evans J.A. in Public Service Alliance of Canada v.

Canada Post Corporation,2010 FCA 56, [2010] F.C.J. No. 272 (QL), rev’d 2011 SCC 57, [2011] 3 S.C.R. 572, Abella J. held that reasons do not have to be“perfect”, nor do they have to be comprehensive, nor are they to be reviewed in a “vacuum” (para. 18). The result is to be looked at inthe context of the evidence, the parties’ submissions and the process.

[12] Abella J. also rejected the understanding that a party could move the review standard from reasonableness tocorrectness simply by alleging a breach of the fairness duty based on an insufficiency of reasons. However, she recognized a validdistinction exists between cases where the adjudicative tribunal offers no reasons and those where the reasons are allegedly deficient (atpara. 22). In the case of “no reasons”, there is nothing to review and that is why intervention is required. This is assuming, of course, thatthe law requires reasons for decision.

One of the earliest Supreme Court cases dealing with a tribunal’s failure to provide sufficientreasons is Northwestern Utilities Ltd. et al. v. Edmonton, (SCC), [1979] 1 S.C.R. 684, [1978] S.C.J. No. 107 (QL).Admittedly, the case is better known for the Supreme Court’s analysis of the issue of tribunal standing and whether a tribunal should bepermitted to defend the correctness of its decision when measured against the objective of ensuring tribunal impartiality with respect tofuture proceedings involving similar interests or the same parties.

On the facts, the tribunal’s decision in Northwestern Utilities consistedof a series of recitals along with the formal order granting the rate increase that had been sought. In the end, the Supreme Courtconfirmed that the tribunal’s order should be set aside and the matter remitted for further consideration. [13] Ignoring the issue of tribunal standing, the fact pattern in Northwestern Utilities is similar to the one found intwo relatively recent decisions of this Court.

Both cases involved the failure of an adjudicative tribunal to offer any reasons for itsdeclaratory decision involving the setting of insurance rates with respect to passenger cars. Both cases involved issues that went to thecore of the tribunal’s mandate and had been argued fully by opposing counsel, yet no reasons were given as to which of the twoarguments prevailed and why: see Attorney General of New Brunswick v. The Dominion of Canada General Insurance Company, 2010NBCA 82, 366 N.B.R. (2d) 105 and Attorney General of New Brunswick v. Pembridge Insurance Company, 2011 NBCA 2, 368 N.B.R.(2d) 134.

The failure to give reasons in these circumstances amounted to a breach of the fairness duty. Consequently, the tribunal’sdecisions were set aside and the matter remitted to a differently constituted panel for reconsideration, with a direction to provide reasonsallowing for meaningful review. Too often it is forgotten that, if there has been a substantial breach of the fairness duty, the only cure isto quash the decision and remit the matter to the adjudicative tribunal for a rehearing (e.g., reasonable apprehension of bias). [14] This is a case in which the tribunal provided no reasons for its decision.

This omission raises two relatedquestions. Is the Commission obligated to provide reasons when it dismisses a complaint and, if so, may the Commission rely on thefindings and recommendation of the Commission’s investigator? Based on the Supreme Court’s analysis in Baker v. Canada (Ministerof Citizenship & Immigration), it is now settled law that human rights commissions are entitled to rely on the investigative record andany recommendation provided by the investigator when it comes to deciding whether a complaint should be dismissed: Sketchley v.Canada (Attorney General), 2005 FCA 404, [2005] F.C.J.

No. 2056 (QL). I should point out, however, that the New Brunswick HumanRights Code does not speak of the investigator making a recommendation to the Commission, except in circumstances outlined in s.19.2(1) of the Code (today s. 22(1)). Those circumstances are not applicable in the present context and the Code does not speak of theCommission adopting the recommendation of the investigator: see New Brunswick Human Rights Commission v. Province of NewBrunswick (Department of Social Development), 2010 NBCA 40, 360 N.B.R. (2d) 283. While the investigator, Ms.

LeBlanc, did make arecommendation, the Commission remained true to the legislation and dismissed the complaint without expressly endorsing theinvestigator’s recommendation but having regard, for example, to the executive

summary she prepared for the Commission’sconsideration. On reflection, the fact the investigator, Ms. LeBlanc, went on to venture a recommendation is understandable. It is anintuitive reaction and certainly not one that provides a valid ground for intervention. The important point is this: the Commission is notobligated to provide reasons for its decision to dismiss a complaint, provided the decision is consistent with any views expressed by theinvestigator and the record presented to the Commission. In the present case, Ms.

LeBlanc made a critical finding at paragraph 88 of herreport: “There is not sufficient information to support the Complainant’s allegations that the alleged harassment is related to his physicaldisability.” Likewise, she concluded there was insufficient information to support the allegation of perceived mental disability. Thosetwo conclusions lead to a third: that the complaint should be dismissed. The latter conclusion is immune from attack unless it can beshown that the investigation was materially flawed. This takes us to the next ground of appeal. [15] The complainant alleges Ms.

LeBlanc’s investigation of his complaint was materially flawed and, therefore, sotoo is the decision of the Commission to dismiss the complaint. It is alleged she failed to interview key witnesses, whom the complainanthad identified and brought to her attention, after providing both parties with a copy of her preliminary findings. As well, the complainantalleges Ms. LeBlanc failed to retrieve and consider a workplace report prepared by an independent third party, Mario DiCarlo, and togive that report sufficient weight.

As to the key witnesses, the complainant listed: Abel LeBlanc, Mario DiCarlo, Sally Wells DiCarlo,Frank Kilravey and Jeff LeBlanc. In providing these names to Ms. LeBlanc, the complainant did not indicate how the evidence of theseindividuals would be relevant to the investigation at hand. Regardless, Ms. LeBlanc, in her “Briefing Note on the Responses to the CaseAnalysis Report”, provided her reasons for not doing so. This is what she had to say: The investigating officers determine the scope of the investigation.

Abel LeBlanc is a MLA and there was no information provided tosuggest that he would have any direct witness information regarding the complaint before the Commission; Mario DiCarlo was notinterviewed as information obtained indicated that he had limited involvement with the Respondent and the involvement had to do withworkplace harassment on a global scale; Sally Wells was interviewed and her information is in the CAR; Frank Kilravey wrote a petitionletter that dealt with workplace harassment on a global scale, not related to this Complaint and not related to any disabilities; he woulddefinitely have been appropriate if this had been a workplace harassment investigation under the Province of New Brunswick’sWorkplace Harassment Policy, however not relevant to this complaint.

Jeff LeBlanc was not interviewed and there has been noinformation provided at any time during the investigation as to why he would be relevant or what information directly related to thisComplaint he could provide. There is no need based on all of the information obtained to interview any of the people mentioned. [para.5, Briefing Note]

[ 16 ] In my view, the above passage is a complete answer to the complainant’s allegation of a flawed investigation. Particular note should be made of the reference to the evidence of Frank Kilravey. It is a petition letter dealing with workplace harassment at the Saint John Regional Correctional Centre and not related to the complaint under investigation. As to Ms. LeBlanc’s failure to obtain a copy of Mr. DiCarlo’s report, here is what she said: The Complainant would like to know why Mario DiCarlo’s report prepared was not obtained and reviewed.

Sally Wells’ interview indicated that the only involvement DiCarlo had was related to workplace harassment generally (of all staff, not the Complainant) and therefore not related to this complaint. [paras. 6-7, Briefing Note] [ 17 ] In my view, the record which Ms. LeBlanc prepared for the Commission demonstrates a level of thoroughness and patience which insulates her investigation from any challenge premised on a flawed investigation. Furthermore, the fact Ms.

LeBlanc was acutely aware of the general problem of workplace harassment at the Saint John Regional Correctional Centre was a relevant consideration and explains why she and the application judge were concerned that the complainant’s personal situation could be symptomatic of a general problem in the workplace and not related to the complainant’s physical impairment and his employer’s decision to accommodate his physical needs. [ 18 ] The final ground of appeal is tied to the failure of the application judge to deal with the complainant’s allegation that he had been subjected to discriminatory treatment based on a perception that he had a mental disability.

It is true the application judge did not deal with this issue in his reasons, most likely for the reason the issue lacks an air of reality. In Newfoundland and Labrador Nurses’ Union , Abella J. made an incisive comment in response to another issue, but which is instructive to both counsel and judges: “This process would be paralyzed if arbitrators were expected to respond to every argument or line of possible analysis” (para. 25). Justice Abella was referring to the arbitration process, but the observation is equally applicable to investigators, such as Ms.

LeBlanc, and to judges sitting on applications for judicial review or on appeal. [ 19 ] The allegation the complainant had been discriminated against on the basis of a perceived mental disability is tied to the solitary fact that the complainant was asked to undergo a psychological assessment following a physical altercation with a co- worker, who was not required to submit to the same assessment. The assessment confirmed the complainant does not suffer from a “personality disorder”. Ms.

LeBlanc looked into the matter and offered an intelligent response as to why only the complainant was asked to undergo the assessment. Ms. LeBlanc’s report outlines the surrounding circumstances and her reasons for concluding there was a lack of evidence to support the complainant’s allegation. Once again, the allegation of a flawed investigation is unsupported by the record and it is unnecessary for this Court to pursue the issue further. [ 20 ] There is one other matter which requires mention.

At the appeal hearing, we noted the complainant had made the Commission a party to the application for judicial review, even though there is no provision in the Human Rights Code which grants the Commission status to appear as either a party or intervener in judicial review proceedings. Admittedly, s. 20(4.1) (now s. 23(7)) provides that in cases where the complaint goes to the inquiry stage, the Commission has carriage of the complaint and is a party to the inquiry. It should follow that if the commission is a party to the inquiry, it is a party to any subsequent judicial review proceedings.

However, as s. 20(4.1) of the Code is not applicable, we asked whether the Commission had the requisite standing in circumstances where the Commission’s decision was being attacked by the complainant and defended by the employer. The Commission was kind enough to provide us with a supplementary submission regarding the issue of standing. [ 21 ] The Commission’s supplemental brief refers to several cases in which the Commission has been named as a party to a judicial review or appeal proceeding. However, none of the cases raise the issue of tribunal standing.

This leaves us to consider this Court’s decision in United Brotherhood of Carpenters and Joiners of America v. Bransen Construction Ltd ., 2002 NBCA 27 , 249 N.B.R. (2d) 93. In that case, a decision of the Labour and Employment Board had been subjected to judicial review. The employer was challenging the decision and the union defending it. The application was allowed and, on appeal to this Court, the Board notified the Registrar that it would be making written submissions and appearing at the scheduled hearing.

In the absence of a statutory provision bestowing standing on the Board, this Court rejected the Board’s contention it possessed the inherent right to participate in the proceedings, either in the Court of Queen’s Bench or in this Court, once the originating document issued. This Court held that the Board may participate in the proceedings, provided the requisite standing was obtained pursuant to either Rule 15.02 or 15.03 of the Rules of Court .

Save for s. 20(4.1), there is no provision of the Human Rights Code which makes the Commission a party to any legal proceedings in which one of its decisions is being reviewed judicially. Nor does the Code give the Commission the general right to participate in review proceedings. This omission is to be contrasted with the legislation governing workers’ compensation claims under the Workers’ Compensation Act , R.S.N.B. 1973, c. W-13 and the Workplace Health, Safety and Compensation Commission Act , S.N.B. 1994, c. W-14.

Within that framework, the Workers’ Compensation Commission is given the right to participate in appeals to this Court from the Appeals Tribunal: see s. 23(6) of the Workplace Health, Safety and Compensation Commission Act.

[22] There will be cases where the Commission cannot avoid being a named party: see New Brunswick HumanRights Commission v. Province of New Brunswick, where the Commission was named a party in order to avoid the embarrassment ofhaving one government Minister suing another. But that is the exceptional case. Hence, the Commission more often than not will need toseek the requisite standing. But I do not want to leave the impression this Court is unsympathetic or antagonistic to the Commissionexercising its legal right to seek standing.

In cases where it is alleged the tribunal breached the fairness duty, the decision to grant statusas an intervener or a party is normally expected, particularly if the allegation relates to post-hearing matters or allegations of actual orperceived bias. While standing has often been granted in cases where the tribunal’s jurisdiction is in issue, the Supreme Court hasrecently narrowed the concept of jurisdiction by use of a presumption: see Alberta (Information and Privacy Commissioner) v. AlbertaTeachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, in particular, para. 31.

There are also cases where one of the parties lacks theability to defend a tribunal decision, as is true in the case of the self-represented litigant. In such circumstances, the tribunal may bedriven by practical necessity to obtain the requisite standing. [23] It must be remembered that the lead decision of the Supreme Court with respect to tribunal standing remainsNorthwestern Utilities Ltd. et al. v. Edmonton.

The precedential significance of that case can be reduced to the proposition that notribunal is entitled to make submissions aimed at bolstering reasons that are otherwise viewed as being materially deficient. Bluntlystated: “bootstrapping” is not permitted. The long and the short of it is that the Supreme Court held that the ability of a tribunal to makesubmissions embracing the merits of the case undermines the principle of tribunal impartiality. At the same time, this Court recognizedthat the subsequent jurisprudence has made room for exceptions.

The law in New Brunswick is summarized in Bransen Construction, inthe following manner: In

summary, a tribunal seeking intervener status must persuade the court that: the case is of precedential significance; the tribunal cancontribute to the proceedings in a way not reasonably expected of the parties; and the principle of impartiality can and will be respected.Written submissions that address the merits of the decision do not offend this principle, except those intended to bootstrap tribunalreasons that are materially deficient.

Oral submissions that respond only to questions posed by the reviewing court, or are of briefduration, qualify as non-aggressive participation that respect the principle of impartiality. [para. 36] [24] As the Commission was made a party to the proceedings and no one objected to its participation, there is noneed to comment further with respect to the standing issue: see generally Ontario (Children’s Lawyer) v. Ontario (Information andPrivacy Commissioner), (ON CA), [2005] O.J. No. 1426 (C.A.) (QL); B.C. Teachers’ Federation, Nanaimo DistrictTeachers’ Association et al. v.

Information and Privacy Commissioner (B.C.) et al., 2005 BCSC 1562, [2005] B.C.J. No. 2394 (QL) andLeon’s Furniture Limited v. Alberta (Information and Privacy Commissioner), 2011 ABCA 94, [2011] A.J. No. 338 (QL), which drawsa distinction between cases in which the tribunal is adjudicating over a dispute between two adversaries and those in which it is not. [25] The reasons outlined above provide the basis for which the appeal was dismissed from the bench. Eachrespondent is entitled to costs of $2,500. ____________________________________ J.T. ROBERTSON, J.A.

WE CONCUR: ___________________________________ WALLACE S. TURNBULL, J.A.

____________________________________ BRADLEY V. GREEN, J.A.