HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK, Represented by the Department of Justice v. Public Safety, 2023 NBKB 112

Citation: 2023 NBKB 112 Date: 2023 06 29 Docket: FM-5-2023 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK, Represented by the Department of Justice and Public Safety (Applicant) – and – CHRISTINA BURKE (Respondent) Date of Hearing: May 30, 2023 Date of Decision: June 29, 2023 Before: Justice E. Thomas Christie At: Burton, New Brunswick Appearances: Daniel A. Standing for the Applicant Daniel P. L.

Leger for the Respondent Christie, J. [ 1 ] On December 16, 2022, Arbitrator Basil Chiasson, K.C. issued his reasons for decision in relation to a complaint filed by the Respondent, Christina Burke, against the Applicant, His Majesty the King as represented by the Department of Justice and Public Safety. Ms. Burke’s complaint was filed pursuant to s. 24 of the Occupational Health and Safety Act , S.N.B. 1983, c. O-0.2 (the Act ). She had been employed as a Fee-for-Service Coroner with the Department of Justice and Public Safety New Brunswick.

She was advised on January 18, 2021, that her fee-for-service contract would be terminated effective February 1, 2021. The matter before Mr. Chiasson arose pursuant to his authority as an arbitrator appointed pursuant to s. 25 of the Act . Essentially, Ms. Burke’s complaint before Mr. Chiasson was that the Applicant discriminated against her because she made a complaint, under the Applicant’s Respectful Workplace Policy, against her supervisor alleging sexual harassment, personal harassment and abuse of authority.

She filed this originating complaint with the Chief Coroner, Jerome Ouellette and Acting Deputy Robert Belliveau (Record p. 18). [ 2 ] In his decision, Mr. Chiasson determined that Ms. Burke was discriminated against because of her workplace harassment complaint and should be reinstated to her former position and that she be reimbursed for any lost wages and benefits. He also ordered that the letter

of termination be removed from her file. [ 3 ] The present Notice of Application requests that: (

a) The decision of Arbitrator Basile Chiasson, K.C. be set aside with costs. [ 4 ] The grounds upon which the order is sought are as follows: (

a) The Arbitrator erred in law by applying the wrong legal test; (

b) The Arbitrator erred in law or in jurisdiction by mischaracterizing or misstating evidence that was instrumental in the success or failure of the matter before him; and (

c) The Arbitrator erred in law by failing to sufficiently explain or justify his credibility finding against Michael J. Comeau, K.C. [ 5 ] As for the proper standard of review, the Applicant argues that the matter should be addressed on the correctness or an appellate standard while the Respondent argues that the standard of review be that of reasonableness. [ 6 ] A brief overview of the facts is in order as found in the reasons of Arbitrator Chiasson. In July 2015, Ms. Burke began employment with the Applicant as a Fee-for-Service Coroner . It was not her full-time work. Mr.

Chiasson commented at p. 10 of his reasons that Ms. Burke: Ms. Burke was an overachiever and did everything that was needed to acquire the skills and knowledge for the coroner’s job and to provide quality work for her employer. Indeed, Mr. Jerome Ouellette [Chief Coroner] testified as much at the hearing. [ 7 ] As an employer, the Applicant had in place certain policies aimed at ensuring a respectful workplace. Specifically, Respectful Workplace Policy AD-2913 provided that employees were entitled to a healthy work environment free of harassment of a personal or sexual nature.

It also set out a process to address complaints. Of particular note in the policy is that the employee making the complaint is not to be the subject of retaliation for having done so. [ 8 ] Ms. Burke found it necessary to file a harassment complaint against one of her immediate supervisors. In December 2019, Ms. Burke, along with two others, made a verbal complaint against this supervisor. An informal process of resolution was unsuccessful, and a formal letter of complaint was filed by Ms. Burke in July 2020. While there was a meeting with representatives of the Applicant and Ms. Burke in September 2020, Mr.

Chiasson found that there was no meaningful follow-up by the Applicant to the informal or formal harassment complaint filed by Ms. Burke. I agree with Mr. Chiasson’s finding. It is not apparent, based on a review of the Record before me, that the Applicant did anything of substance to comply with its obligations pursuant to the policy. [ 9 ] Ms. Burke was asked to meet with Chief Coroner, Mr. Jerome Ouellette, on January 18, 2021. At that meeting, Mr. Ouellette gave her the letter of termination. Ms. Burke asked Mr.

Ouellette if she was being terminated because she had made her complaint against another supervisor. Mr. Ouellette did not provide a reason for the termination. The letter of termination, signed by Mr. Ouellette, reads as follows: Subject: Notification – Termination of Contract This letter is to inform you that effective February 1, 2021 your contract as a Fee for Service Coroner will be terminated. I would suggest that until then you focus on concluding your active cases.

On February 1st Regional Coroner [name deleted by me] will retrieve all of your files and equipment supplied to you as a Fee for Service Coroner. You can invoice all your time spent on your active cases even if they are not concluded. I want to thank you for the work you have provided and wish you the best in your future endeavors.

[ 10 ] I want to comment on my removal of the name of the Regional Coroner in the body of the above letter. The person so named in the letter, as the person tasked to retrieve all of Ms. Burke’s files and equipment, was the same person that she named in her sexual harassment complaint. It is clear from the Record, and as noted by Mr. Chiasson that, by the time of the hearing before him, nothing of substance had been done to address Ms. Burke’s original harassment complaint. Mr. Ouellette would have been aware, at the time he wrote the letter, that the person he tasked with retrieving from Ms.

Burke files and equipment, was the very person she named in the complaint as the one who had sexually (and in other ways) harassed her. The Record is not clear if the exchange of files and equipment actually happened as Mr. Ouellette proposed, but it strikes the court as a most insensitive approach – to arrange for the alleged harasser to retrieve files and equipment from the complainant. [ 11 ] Moreover, and although it is not clear to me that it was Mr. Chiasson’s mandate to determine the question of whether Ms. Burke’s harassment complaint was valid, Mr.

Chiasson did opine at p. 12 of his reasons that: All in all, without need to go into greater details, I conclude that [name removed by me] sexually harassed the Complainant, abused his authority, and demeaned her dignity, contrary to the express prohibitions of the Respectful Workplace. [ 12 ] Again, I am perplexed why Mr. Ouellette would have ever contemplated arranging to have the exchange of files and equipment as between Ms. Burke and the person she named as her sexual harasser – the person Mr. Chiasson felt satisfied to describe in the terms he used in the quote above. [ 13 ] The decision to terminate Ms.

Burke came at the direction of Mr. Michael Comeau, K.C., Deputy Minister of the Department. The Record confirms that Mr. Comeau had been given certain information by the RCMP concerning Ms. Burke’s spouse, information that, in Mr. Comeau’s view, compromised Ms. Burke’s duties. Whether such information was sufficient reason to direct the termination of Ms. Burke was not before the arbitrator or me. Nor was the propriety of the information coming from the RCMP in the first place explored by Mr. Chiasson. Nevertheless, whatever ‘back-story’ there might have been, Mr.

Chiasson wrote in his reasons at p. 13 that the information received from the RCMP, “… was enough for Mr. Comeau to decide to terminate the Complainant. ” [ 14 ] Mr. Comeau testified before Mr. Chiasson that, in his view, Ms. Burke’s contract required that she be given two weeks notice of termination. In fact, the terms of her terms of agreement say so: The Office of the Chief Coroner agrees to: … Provide a minimum of two weeks notice in writing, should the services of the above named individual no longer be required. [p. 19 Record] [ 15 ] Mr. Comeau’s instructions to terminate the agreement with Ms.

Burke filtered through the ‘chain of command’ within the Department to Mr. Ouellette but, without any explanation as to why it was necessary. So, when Mr. Ouellette delivered the termination letter to Ms. Burke on January 18, 2021, he did not know why he was terminating her contract - he was just following directions. [ 16 ] Mr. Comeau, on the other hand, when he decided to give direction to terminate Ms. Burke, was apparently unaware that Ms. Burke had, several months earlier, filed a sexual harassment complaint against one of her supervisors. Mr. Chiasson’s reasons at p. 13 record that: Worse, Mr.

Comeau was unaware of the fact that the Complainant had filed a complaint much less a sexual harassment one, and so was Ms. Courcy, another employer witness. Apparently, in the chain of authority, only Mr. Jerome Ouellette was aware of this. Mr. Comeau readily acknowledged during cross-examination that had he known of the complaint filed by the Complainant, he would have dealt with the matter in an entirely different way.

No further details were given as to how this would have been dealt differently, but the evidence clearly shows a lack of proper follow-up on the Respectful Workplace Policy in effect and the lack of communication in the chain of command from the office of the Chief Coroner up to the office of the Deputy Minister. [ 17 ] Mr. Chiasson also notes at pp. 14-15 that Mr. Ouellette: … failed to take appropriate action to properly investigate the Complainant’s complaint. However, it is out of my reach to comment as to how and when a proper internal workplace investigation should be carried out.

Having said this, I find that knowledge of the complaint, once imparted to Mr. Ouellette, was indeed constructive knowledge of all superiors above him up to the end of the chain of command at the door of the Deputy Minister, Mr. Michael Comeau.

[ 18 ] Mr. Chiasson observes at p. 15 of this reasons that, with Mr. Ouellette having signed the termination letter and having verbally advised Ms. Burke of her termination that: It defies common sense to claim that when he did so, the complaint was not part of his consideration. I conclude it was one of the considerations. [ 19 ] Mr. Chiasson notes in his reasons at p. 19 that, on the balance of probabilities, it is sufficient that one of the factors leading to her termination was Ms.

Burke’s complaint: It is not required that the termination of the Complainant by the Employer because of the complaint was the sole factor for the Employer’s reaction. It just has to be a factor in the decision taken by the Employer in trying to obtain an answer to the critical question as to whether there is a connection to a safety issue. [ 20 ] It is on this above quote that the Applicant takes issue. The Applicant asserts that, pursuant to s. 24(1) of the Act , it must be shown that the complaint was the only factor behind the discrimination. – not one of multiple factors. [ 21 ] Finally, Mr.

Chiasson records that no party took issue with his jurisdiction to determine the matter put before him. [ 22 ] Let me deal first with ground (c), that credibility findings were made against Mr. Comeau, K.C. Mr. Comeau is, as noted, the Deputy Minister of the Department of Justice and Public Safety and testified at the hearing. The substance of Mr. Chiasson’s ‘finding’ in dispute is found at p. 14 of his reasons.

He wrote: In light of the obvious contradictions of this witness on critical issues to this hearing, I find his evidence to be not credible and will disregard it in my ultimate ruling. [ 23 ] What precedes the above

section in Mr. Chiasson’s reasons is a review of the testimony provided by Mr. Comeau. His evidence was that he had been advised by the RCMP that certain circumstances existed which could place Ms. Burke in a conflict of interest. In light of the information received, he gave instruction to the Assistant Deputy Minister to terminate Ms. Burke. As noted above, this direction filtered down through the ‘chain of command’ to Chief Coroner Ouellette. However, Mr. Comeau testified that he was unaware, at the time he gave instructions to terminate Ms.

Burke, that she had filed a sexual harassment complaint against her direct supervisor. Had he known this fact, Mr. Comeau testified that he might have approached the process differently. [ 24 ] With that said, I do not read Mr. Chiasson’s comments on Mr. Comeau’s credibility as inferring that Mr. Comeau was being intentionally untruthful. Instead, I read Mr. Chiasson’s comments as meaning that the testimony provided by Mr. Comeau reflected a degree of ‘confusion’ as to what was going on within the Department concerning Ms.

Burke’s complaint (which it appears was nothing of substance) and the information received by the RCMP. Therefore, Mr. Chiasson felt he could not consider the evidence provided by Mr. Comeau to be reliable. In my view, that was the extent of any comment on Mr. Comeau’s credibility. [ 25 ] The Applicant is correct in its pre-hearing brief to acknowledge that findings on matters of credibility stand strong against challenge on review. Mr. Chiasson was in a superior position to makes such determinations. I am not prepared to find that ground (

c) gives a proper basis, in these circumstances, to grant the relief requested. [ 26 ] Let me turn to consideration of the applicable standard of review, the correctness/appellate standard (as asserted by the Applicant) or reasonableness (as asserted by Ms. Burke). The parties accept that, following the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , the presumptive standard of review is reasonableness.

However, the Applicant argues that the provisions of s. 26(5) of the Act call for the correctness standard, casting this process as if it were an appeal as opposed to a review. The provision states: 26(5) Any party to whom an order of an arbitrator under this

section applies may, within thirty days after being notified of the order, apply by Notice of Application to a judge of the Court of Queen’s Bench of New Brunswick to review and set aside the order on the ground that it was made (

a) without jurisdiction, or (

b) on the basis of an error of law.

[ 27 ] I further note ss. 26(6), which refers to the process as commencing with a Notice of Application and ss. 26(9) which notes: 26(9) After hearing the application, the judge may make any order in accordance with Rule 69.13 of the Rules of Court that the judge considers appropriate. [ 28 ] Rule 69 pertains to the process for judicial review which is commenced by way of a Notice of Application. The provisions of ss. 26(5) seem only to reduce the time within which a Notice of Application must be filed – thirty days as set out in the Act , and three months for commencing a Notice of Application under the Rule 69.

In all other respects, the processes of the Act are more akin to a process for ‘judicial’ review, and not an appeal.

The Act says nothing that would lead me to consider this process to be a statutory appeal. [ 29 ] I respectfully disagree with the Applicant’s characterization of the review process under the Act – a process it describes at para. 13 of its pre-hearing brief as follows: Like in the present case, when the legislature provides a statutory appeal mechanism , from an administrative decision to a court, it signals an intent that appellate standards apply when a court reviews the decision. [emphasis added] [ 30 ] The Act has not provided a statutory appeal mechanism nor identified a specific standard of review.

The following from Vavilov is applicable: [17] The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision.

The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. The general rule of reasonableness review, when coupled with these limited exceptions, offers a comprehensive approach to determining the applicable standard of review.

As a result, it is no longer necessary for courts to engage in a “contextual inquiry” (CHRC, at paras. 45-47; see also Dunsmuir, at paras. 62-64; McLean, at para. 22) in order to identify the appropriate standard. [ 31 ] In the present case, there is no legislatively expressed intent that reasonableness would not be the applicable standard. Nor does this case raise constitutional issues, matters of general importance to the legal system as a whole, or arise from competing jurisdictional claims between tribunals.

In my view, reasonableness is the proper standard of review. [ 32 ] The reasonableness standard, as expressed in Vavilov , has been summarized by Richard, C.J. in Dr. Cameron v. Regional Health Authority ‘A’ , 2020 NBCA 56 where, at para. 23-24, is found the following: [23] Vavilov included the following guidance on what reasonableness review entails: Reasonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law […].

It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. […] [T]he reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable. [paras. 82-83] [24] The Supreme Court explained that, to be reasonable, an administrative decision must both be justifiable and actually justified by

the decision maker (para. 86). [33] In the present case, both sides agreed that Mr. Chiasson had jurisdiction over the matter. His task was to determine, pursuant tothe applicable standard of proof he identified, if Ms. Burke’s termination was a result of her harassment complaint or otherwisecharacterized as discriminatory. Subsection 24(1) of the Act provides as follows: 24(1) No employer, supervisor or union shall (

a) take any discriminatory action against an employee, or (

b) threaten to take any discriminatory action against an employee or intimidate or coerce any employee, because the employee has sought the enforcement of this Act, the regulations or an order made in accordance with this Act or theregulations, or has acted in compliance with this Act, the regulations or an order made in accordance with this act or the regulations orhas sought enforcement of the Smoke-free Places Act or the regulations or an order made under that Act as that Act or the regulations ororders under that Act relate to a place of employment under this Act. [emphasis added] [34] I pause to note my emphasis on the word because in the above quote as it is central to the Applicant’s argument that it must beshown that there was no other reason for Ms.

Burke’s termination than her filing of the harassment complaint. Mr. Chiasson concludedthat there could be more than one factor or reason for termination. Furthermore, if it could be shown that the filing of the complaint waspart of a matrix of considerations in coming to the decision to terminate, then that would be enough to establish a violation of the Act. Iam of the view that, in coming to the conclusion he did, Mr. Chiasson assessed the factual context broadly.

This is a useful approachbecause it is often unlikely that there is, for instance, evidence of a direct order or email to terminate an employee explicitly saying it isbecause of a filed complaint. That is why it makes it untenable to conclude, as the Applicant suggests, that because, as used in s. 24(1),must mean that it falls to the complainant to prove no cause other than the filed complaint. To twist a common phrase, the camel’s backbroke because of the last straw, not the first. [35] Mr. Chiasson relied on the Court of Appeal of New Brunswick’s reasons in Brunswick Mining and Smelting Corp. v.

Savoie, (NBCA) where, at paras. 16-18, is found the following: [16] I agree with the appellant's submission that the word "because" in s. 24 of the Act requires a causal link between the discriminatoryaction complained of and the attempt on the part of the employee to seek the enforcement of the Act. What the Act intends to deal with isdiscriminatory action which results from the employee seeking enforcement of the Act or regulations. [17] In support of the company's contention, appellant's counsel cited several cases including R. v. St.

Stephen Woodworking Ltd.(1972), (NB CA), 30 D.L.R. (3d) 602, 8 C.C.C. (2d) 377, 5 N.B.R. (2d) 161 (C.A.); R. v. Bushnell CommunicationsLtd. (1974), (ON CA), 47 D.L.R. (3d) 668, 18 C.C.C. (2d) 317, 4 O.R. (2d) 288 (C.A.), and Central Broadcasting Co.v. Canada Labour Relations Board (1976), (SCC), 67 D.L.R. (3d) 538, [1977] 2 S.C.R. 112, 9 N.R. 345. Those casesconcern dismissals relating to union membership and are distinguishable.

They do, however, offer some assistance in suggesting thatthere has to be some link between the result, dismissal, and the cause, union membership. [18] Suffice it to say that in this case, not only was there no connection between the result and the cause as required under s. 24 of theAct, but moreover there had not been, at any time, an attempt by the employee to enforce any provision of the Occupational Health andSafety Act prior to dismissal. This, as I see it, is an essential first step or condition precedent.

The employee must have called into play orattempted to call into play the provisions of the Act in a matter relating to health or safety. If this type of action by an employee, that is,enforcement of the Act, results in dismissal, all the requirements of s. 24 would be met to show discriminatory action. [36] Mr. Chiasson understood that there needs to be a casual connection between the complaint and the termination.

As he wrote atp. 18 of his reasons: In all cases, the employee has the burden to (sic) proof that there is a cause-in-fact between reasonable (sic) the refusal to do the workand the disciplinary measure taken against him. In the circumstances where the employee has satisfied this burden of proof, there is adiscriminatory action prohibited under Section 24(1) of [the] OHSA since the action taken by the employer flows from the attempt by the

employee to apply the Act . [ 37 ] At p. 19 of his reasons, Mr. Chiasson states his substantive finding: Having closely listened to all witnesses, I have come to the conclusion that the Complainant has established on a balance of probabilities that she was terminated because, among other factors, of her written complaint. It is not required that the termination of the Complainant by the Employer because of the complaint was the sole reason for the Employer’s reaction .

It just has to be a factor in the decision taken by the Employer in trying to obtain an answer to a critical question as to whether there is a connection to a safety issue. [emphasis added] [ 38 ] In its pre-trial brief at para. 21, the Applicant takes issue with Mr. Chiasson’s approach to determining the test he was to apply. As a result of Mr. Chiasson’s framing of the test, the Applicant writes that the reviewing court, “… has no sense of what legal principles the arbitrator actually relied on in reaching his decision.

This amounts to an error of law. ” I am satisfied, based on his review of the authorities, that Mr. Chiasson understood the test he was to apply. Granted, the authorities may use different expressions to articulate the focus of the test, be it a need to establish a nexus or establish a causal link between a complaint and a termination (or other discriminatory action). Regardless of how it is described, the complainant must show, on the balance of probabilities, some tie between the complaint and the discriminatory action.

The arbitrator must have broad discretion in assessing the evidence and arguments the parties put in play. Given the benefit of being the tribunal of first instance, and the recognized expertise of arbitrators, courts should be cautious before they intervene in a statutory scheme developed specifically for resolving such disputes.

With that said, and as Vavilov reminds us, courts must not simply become ‘rubber stamps’ (para. 13 of Vavilov set out below). [ 39 ] It is well established that, if tribunals, essentially ‘stay in their lane’, courts will be reluctant to intervene (subject to deficiencies in other respects). Neither party has argued that Mr. Chiasson’s decision takes the matter beyond the intended scope of the Act .

In Vavilov the court wrote: [13] Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability.

It remains a robust form of review. [ 40 ] In the present case, I see no necessity to intervene. Mr. Chiasson was tasked to determine if Ms. Burke could establish that she had been discriminated against because of her filed complaint. He examined authorities to determine the test Ms. Burke must meet. He reviewed the evidence, made findings based on the evidence before him, and then made a decision he was entitled to make. His reasons, when read as a whole, are transparent, rational, reach a defensible conclusion and directed a remedy the Act permits. [ 41 ] The Applicant notes in its Application, Mr.

Chiasson mischaracterized or misstated evidence that went to the substance of why he decided as he did. This is an invitation to essentially re-hear the case or provide my own assessment of the evidence presented. What is clear from the evidence is that Ms. Burke filed a complaint that included allegations of sexual harassment against a supervisor. The Applicant had a legal and moral responsibility to fully investigate that complaint. It did nothing of substance in furtherance of its obligation to Ms. Burke. The complaint sat for months. Then, Ms.

Burke was terminated by receipt of a letter from the Chief Corner Ouellette with no apparent explanation as to why. In the termination letter, Mr. Ouellette indicated that the very person who was the alleged harasser would be tasked with retrieving from Ms. Burke files and equipment of the Applicant’s. Under these circumstances, it is anything but unreasonable for Mr. Chiasson to have concluded as he did. [ 42 ] This is a case which calls for a reminder that judicial review does not entitle a party to relief even if the merits of its case can be established. Remedies for judicial review are discretionary.

As I have discussed above, the enabling

section of the Act does not use the phrase ‘judicial review’ and so I appreciate that there may be a line to be drawn between a Rule 69 judicial review and a review under s. 26(5) of the Act . Nevertheless and, again, as I have noted above, the use in the Act of terms and procedures associated with a Rule 69 judicial review, signals to me that the function of the court in this process is similar. Both call for a review, by a judge. With that said, I am reminded of the words of Petrie, J. in McConnell Transport Ltd. v.

Minister of Justice and Public Safety of New Brunswick , 2020 NBQB 51 , at para. 18 : “ Judicial review is a discretionary remedy and somewhat of an extraordinary remedy. ” Petrie, J. relies on Strickland v. Canada (Attorney General) , 2015 SCC 37 where, at para. 37, is found the following: Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief:

[ 43 ] I point out this principle of discretion in granting relief in the face of an otherwise meritorious claim in the event that I erred in my assessment of the merits of the Application. I would not, under the present circumstances which I have identified above in para. 41, granted the relief requested. It would have been manifestly unfair to Ms. Burke to do so. The Applicant had legal responsibilities to Ms. Burke with which it failed to comply.

This may well have been a case where the ‘left hand did not know what the right hand was doing’ within the organizational structure – from the Deputy Minister to the Chief Coroner. However, one would expect that the Applicant would have lived up to its legal obligations to a complainant alleging, amongst other things, harassment by her direct supervisor. To have failed to do so bred the very mistrust in the motive behind her termination and resulted in the matter coming before Arbitrator Chiasson. [ 44 ] The Application is dismissed. Ms.

Burke is entitled to costs in the amount of $3,000.00 plus HST and allowable disbursements. ____________________________________ Mr. Justice E. Thomas Christie Court of King’s Bench of New Brunswick, Trial Division