HER MAJESTY THE QUEEN IN THE RIGHT OF THE PROVINCE OF NEW BRUNSWICK, REPRESENTED BY THE DEPARTMENT OF ENERGY v. RESOURCE DEVELOPMENT, 2022 NBKB 229

Citation: 2022 NBKB 229 Date: November 22, 2022 Docket: FM-117-21 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: HER MAJESTY THE QUEEN IN THE RIGHT OF THE PROVINCE OF NEW BRUNSWICK, REPRESENTED BY THE DEPARTMENT OF ENERGY AND RESOURCE DEVELOPMENT Applicant – and – MARGARET-ANN BLANEY, Respondent Date of Hearing: October 5, 2022 Date of Decision: November 22, 2022 Subject Matter: Judicial Review Before: Justice E. Thomas Christie At: Burton, New Brunswick Appearances: Keith Mullin for the Applicant Christopher Isnor for the Respondent Christie, J.

OVERVIEW [ 1 ] The facts underlying this matter are not in dispute. On June 4, 2012, by virtue of an Order-in-Council, the Respondent, Margaret- Ann Blaney, was appointed President of the newly created Energy Efficiency and Conservation Agency of New Brunswick (Efficiency NB). For a number of years prior to her appointment, Ms. Blaney had been active in provincial politics as a member of the Legislative Assembly and, during her time in office, held various ministerial portfolios. [ 2 ] Ms.

Blaney, and the government of the day, confirmed that her appointment was to be characterized as a five-year fixed term contract for which certain pay and other benefits were set out. Reference was made to a discussion between herself and the then Premier that, if the government should change, her appointment would remain secure for any remaining term of her contract. Her appointment attracted a degree of political scrutiny. It became an issue of discussion in the provincial election of September 22, 2014.

In fact, the provincial election did see a change in the party entitled to form government and a new Premier took office.

[ 3 ] On October 6, 2014, Ms. Blaney was directed by the Clerk of the Executive Council Office to not return to work. On October 14, 2014, Ms. Blaney was directed by the Deputy Minister of Human Resources for the Province to not report for work and to empty her office of personal items without delay. [ 4 ] On December 12, 2014, the new government gave first reading to the Act to Dissolve the Energy Efficiency and Conservation Agency of New Brunswick , SNB 2015 c. 3 ( Act to Dissolve ). Royal Assent was granted on March 27, 2015. Not all sections of the Act to Dissolve were effective on the same date.

Certain provisions were deemed retroactive. Others became effective as of April 1, 2015. The Act to Dissolve , as the name suggests, dissolved Energy NB and, amongst other things, revoked Ms.

Blaney’s appointment as President. [ 5 ] The following relevant provisions of the Act to Dissolve were deemed to come into force on October 16, 2014: 2(2) The appointment of a person as the President is revoked. … 2(4) All contracts, agreements, orders or by-laws relating to the remuneration, allowances, expenses, benefits or severance pay to be paid to the President are null and void. … 2(8) The Deputy Minister of the Department of Energy and Mines is appointed as acting President for the period beginning on October 16, 2014 and ending on the date of dissolution of the Agency. … 2(13) No action, application or other proceeding lies or shall be instituted against the Agency, the Corporation, the Minister, the acting President or the Crown in right of the Province before any court or administrative body in the Province as a result of (a)*the dissolution of the agency (

b) The revocation of the appointment of the President; (c)* the revocation of the appointments of other members of the Board [* subsections 2(13)(

a) and (

c) were not given retroactive effect to October 16, 2014 but became effective as of April 1, 2015 but are included here as a matter of completeness ] 2(14) Without restricting the generality of subsection (13), no action, application or other proceeding for dismissal, whether express, implied or constructive, lies or shall be instituted against the Agency, the Corporation, the Minister, the acting President or the Crown in right of the Province as a result of the revocation of the appointment of the President. [ 6 ] Subsection 2(6) of the Act to Dissolve became effective as of the date of first reading in the Legislative Assembly, being December 12, 2014.

It provides as follows: 2(6) Despite the provisions of a contract, agreement, order or by-law, no remuneration, allowances, expenses, benefits or severance pay shall be paid to the President. [ 7 ] On or about March 10, 2015, Ms. Blaney filed her complaint under the Human Rights Act , RSNB 2011, c. 171 ( HRA ). On May 8, 2015, the Applicant responded to the complaint. Various rebuttals were exchanged. On September 3, 2015, the Province was advised by the Commission that it would proceed with an initial consideration of the complaint.

By letter dated May 7, 2016, the parties were notified by the Commission that it would investigate the complaint. The Province reported back (May 12, 2016) to the Commission repeating its assertion that s. 2(13) and s. 2(14) prohibited the Commission from acting on the complaint and requesting that the Commission make a preliminary ruling to that effect. Ms. Blaney replied on June 16, 2016, arguing in

summary, that the Commission could not be prevented from investigating whether the very motives underlying the passage of the legislation were violative of her protected human rights. [ 8 ] On or about March 16, 2017, the Commission received a Case Analysis Report from its staff recommending that the Commission should not proceed as it was without jurisdiction due to the legislation at issue. The parties were given an opportunity to provide responses to the Case Analysis Report.

[ 9 ] An addendum report was produced on July 6, 2017, recommending again to the Commission that it lacked jurisdiction over the complaint and that it should be dismissed. However, the Commission, by letter dated September 20, 2017, advised the parties that it would not dismiss the complaint, but it did instruct its staff to more directly review the issue of jurisdiction.

Various further submissions were submitted by the parties. [ 10 ] On September 17, 2019, the Commission determined that it would dismiss aspects of the complaint that occurred on or after October 16, 2014, but it would continue to investigate certain aspects of the complaint that may have arisen before October 16, 2014. Its position seems to essentially be that, since none of the provisions of the Act to Dissolve were retroactive to a date before October 16 th , it had its regular unfettered discretion to consider any events before that date.

Furthermore, it considered it had jurisdiction to investigate any contractual entitlements that may have existed before the date the Act to Dissolve came into full force, being April 1, 2015. In

summary, the Commission was of the view that the provisions of the Act to Dissolve were not a complete prohibition against investigating further. [ 11 ] The Province responded to the Commission’s determination by seeking a judicial review, arguing that the Commission lacked jurisdiction for the reasons noted. The matter came before Justice Clendening on February 12, 2021. Reasons dismissing the application issued on March 31, 2021 (unreported). The same jurisdictional issues were argued before Justice Clendening as are now being argued before me.

However, Justice Clendening did not deal with those arguments, accepting Ms. Blaney’s submissions that the Application was premature and that courts should not interfere in an ongoing administrative process until an evidentiary inquiry has been completed. [ 12 ] As a result of Justice Clendening’s ruling, the Commission continued with its investigative process. The parties continued to make submissions to the Commission and further reports were prepared by Commission staff.

By letter dated September 23, 2021, the parties were notified that the Commission had completed its investigation and determined sufficient information existed to support an arguable case of discrimination based on the prohibited ground of political activity or belief and, as a result, the matter was being referred to a Board of Inquiry through the Labour and Employment Board. [ 13 ] It is this September 23, 2021 referral to the Board of Inquiry which the Province now seeks to quash. [ 14 ] Nevertheless, counsel advised me that the matter came before the Board of Inquiry on March 12, 2022, and the Board raised issues of its jurisdiction given the Act to Dissolve .

Counsel advised me that the Board was not prepared to address the issue of jurisdiction without the matter first being determined through the courts. At para. 32 of the Applicant’s brief is the following

summary of the Board’s directive to the parties: … that he [Board Chair] would not rule on the jurisdiction issues and directed that the Court determine the matter , in part due to the working relationship the Board has with the Commission. [emphasis added] [ 15 ] I do not have a record of what may have been precisely going on between counsel and the Board on this issue. However, in my view, the court would have benefitted greatly from the Board’s view of its own jurisdictional limits.

If the above quote from para. 32 of the Applicant’s brief accurately reflects what happened before the Board, then I would be cautious of accepting a practice where a tribunal essentially forces the parties to seek a referral to the court to answer its own question of jurisdiction. [ 16 ] During the present hearing, I raised my concern with counsel that, like Justice Clendening, recourse to the courts at this stage continues to be premature. I will accept the general premise that, in the absence of unusual circumstances, it is better to see an administrative process to completion than attack it piecemeal.

The administrative process is still unfolding. However, counsel for the Province maintains that the Commission’s decision to transfer the matter to a Board of Inquiry marks ‘a line of division’ allowing for judicial review of that decision alone. [ 17 ] I do not accept that such a division exists as argued. In my view, the transfer to the Board of Inquiry is but the next stage in the same legislative process. Nevertheless, when questioned by me during the hearing, both parties were clear that they want an answer to the question now – they did not want me to consider the issue of jurisdiction to be premature.

It has taken over four and one-half years to get to the point where the Commission was of the view that it had a limited jurisdiction over the complaint. As I noted to counsel during argument, experience shows that a matter before a Board of Inquiry can itself add significant time to an already inordinately long process. With great reluctance, given the court’s distain for the review of preliminary rulings, I find all concerned are best served by a judicial answer to whether Ms. Blaney’s human rights complaint can continue in the manner proposed by the Commission given the provisions of the Act to Dissolve .

ARGUMENT AND ANALYSIS [ 18 ] The Notice of Application identifies the following grounds to quash the September 23, 2021 decision of the Commission to refer the matter forward. I will paraphrase the grounds: (

i) The decision violates s. 2, and ss. 2(13), (14) of the Act to Dissolve and ss. 19(2)(

c) of the Human Rights Code ; (ii) The decision infringes on the dignity, integrity, and efficient functioning of the Legislature which enjoys parliamentary privileges and immunity which are afforded Constitutional status; (iii) The Commission erred in interpreting sections 1 and 4 of the Human Rights Code in determining this to be an employment matter; (iv) The decision to not dismiss all of the complaint was incorrect and unreasonable. [ 19 ] Both parties direct my attention to the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , as identifying the core principles to apply on judicial review. The standard of review is now presumed to be one of reasonableness including questions a tribunal must answer regarding its own jurisdiction. Exceptions to this presumption, pointing to the correctness standard, can include legislation that specifically states that the applicable standard is to be correctness or if there is a statutory right of appeal to a court.

In addition, certain categories of questions like constitutional issues, general questions of law which are of central importance to the legal system or contests between the jurisdictional boundaries of different tribunals, may be considered on the basis of the correctness standard. [ 20 ] The Applicant notes that the Commission relied upon ss. 19(2) (

c) of the HRA to justify that it had authority to decide the question of its jurisdiction. That

section provides as follows: 19(2) The Commission may dismiss a complaint at any stage of the proceedings, in whole or in part, if the Commission in its discretion determines (

c) the complaint is beyond the jurisdiction of the Commission, In other words, the Commission decides. [ 21 ] In this case, the Commission determined it had jurisdiction over events that occurred between October 6-14, 2014, being of the view that the information it had gathered supported an arguable case and no legislative restriction extended back to that point in time.

Moreover, the Commission retained jurisdiction over the question of any potential contractual entitlements as the purported prohibition from doing so did not come into effect (April 1, 2015) until after her complaint had been filed. [ 22 ] The Applicant points out the issue is not one of the Commission interpreting their home statute, being the HRA . Rather, it is the Commission’s

interpretation of the Act to Dissolve that is of concern. It must be guided by the modern approach to statutory

interpretation that words of a statute must be read in their entire context and in grammatical and ordinary sense with regard to the scheme or intent of the Act at issue and the intention of the Legislature or Parliament ( Vavilov para. 117 ). [ 23 ] It must be remembered that, in the present case, the Commission was of the view that it lacked jurisdiction over certain components of the complaint. I note that Ms. Blaney did not challenge that limitation. While the scope of the Commission’s inquiry was limited by its own

interpretation of the boundaries imposed by the Act to Dissolve , the Applicant says that no component of any complaint could survive – the legislation was intended to be all encompassing with no path to redress in any forum. This approach is consistent, it argues, with s. 17 of the

Interpretation Act , S.N.B. c.I-13, calling for fair, large and liberal construction consistent with the purposes of the provision . [ 24 ] The Applicant argues that, properly interpreted, in light of the principles of modern statutory

interpretation and the

Interpretation Act , the Act to Dissolve leaves no space for the Commission to intervene. Pointing to s. 2(13) of the Act to Dissolve , the Applicant says that, had the language been used that only prohibited the institution (or commencement) of any action, application or proceeding, the Commission may have been on more solid ground. But, it argues, the language of the Act to Dissolve must be read as prohibiting the commencement or the continuation of any process.

As it states in its pre-hearing brief at para. 61: The Act to Dissolve takes away a remedy, but more importantly there is no longer a right to which a remedy is available . Some of the Act to Dissolve was proclaimed into the past and it is clearly retroactive to that date. But the relevant

section of the legislation eliminating

rights and remedies are clearly applicable even if the underlying facts occurred in the past. [emphasis added] [25] The Applicant relies on Wells v. Newfoundland, (SCC), [1999] 3 S.C.R. 199 as illustrating the position that, bylegislative means, a government can abolish all redress for contractual losses arising from the elimination of a position in circumstancessimilar to those present. This follows the same line of reasoning of the Court of Queen’s Bench of New Brunswick in the case of Welch v.New Brunswick, .

In that case, the License Suspension Appeal Board was disbanded by virtue of certain legislationwhich included provisions that any contracts or agreements related to compensation of Board members was null and void. The courtconcluded that the legislation did prohibit redress for a “breach of contract” (p. 7). In other words, the Legislature can do as it pleases –if it clearly says what it is doing. [26] The Applicant points the court’s attention to the wording of the French versions of ss. 2(13) and (14) which, it argues, provides abroader scope of the prohibition at issue than found in the English version.

It relies on the Official Languages of New Brunswick Act,S.N.B., 2002 c. O-0.5. As it sets out in its pre-hearing brief at para. 69, The wording [French version] grants very broad immunity from “prosecution” by way of action, petition, demand or other proceedingbefore any court [or] administrative body in the province. This is certainly not a mirror image of the anglophone version. What is clear isthat the francophone version unmistakably set no time limit of the immunity, the immunity simply exists. If the immunity exists it can beused to end this proceeding.

In this instance a proceeding has been initiated and the francophone version clearly does away with it. Thematter should be at an end. [emphasis added] [27] If one accepts this argument - that the French version apparently gives (or takes) something different than the English version – itbegs the question of which version is Ms. Blaney entitled to the benefit of. Either way, the critical question remains as to whether any ofthe language used, French or English, ousts the legislated process in place to determine if Ms.

Blaney’s human rights were violated.Afterall, I take it that the Applicant’s point is that if the French version says something different than the English version, then thisargument is really just an exercise of reminding me that if I had any doubt about the finality of the intent from looking at the Englishversion, the French version should remove that doubt. [28] The Applicant argues that full respect of the judicial branch is to be shown to the “dignity, integrity, and efficient functioning ofthe Legislature [as] preserved through parliamentary privileges which, once established, is afforded constitutional status and is immunefrom review.” (para. 28 of Applicant’s pre-hearing brief).

To further assert this point, the Applicant relies on the case of Levesque v. NewBrunswick, 2022 NBQB 62, a case involving legislative provisions that altered the structure of large pension funds of certain governmentemployees and retirees. [29] On this issue of courts respecting the dignity, integrity and efficient functioning of the Legislature, there is no principled dispute. [30] Courts should rightly be loath to interfere in the legislative or administrative operations of the other branches of our democraticsystem. In Mikisew Cree First Nation v.

Canada (Governor General in Council) 2018 SCC 40, at para. 35, the Court wrote as follows: 35. Long standing constitutional principles underlie this reluctance to supervise the law-making process. The separation of powers is “anessential feature of our constitution”. [31] As I understand the issue, it is not whether the Legislature could strip any conceivable right of redress for any alleged violationsof Ms. Blaney’s human rights.

Rather, the issue is whether the Act to Dissolve achieved that end. [32] The Applicant also says that the Commission erred in determining that the underlying complaint was an employment relatedmatter. However, the Applicant does recognize that even if the employment status issue is not resolved in its favour, the Act to Dissolvestill removed recourse to the Commission’s enforcement processes.

As it sets out in its pre-hearing brief at para. 75, “The Commissionapplied common law private sector analysis to determine if the Department was an employer, but this missed the fundamental issue [-]the complainant can be an employee, but the actions that caused the complaint are legislative actions.” If the Applicant accepts that thecomplainant can be an employee, then I am not convinced that it would be useful to opine on that issue given the outcome of thisApplication. That may be best addressed in the first instance by the Board.

In any event, the point was not argued in depth before me. [33] The Applicant ultimately argues that, given the primacy of the legislative branch and the authorities that constitutionallyempower them, that even if Ms. Blaney’s allegations are true and would otherwise be enforceable, the Act to Dissolve removes all suchrecourse under the HRA.

[34] Ms. Blaney responds that the issues center around the reasonableness of the Commission’s determination that it had jurisdictionto transmit the complaint to a Board of Inquiry. In the present case, Ms. Blaney argues that the language utilized in the Act to Dissolvewas insufficient to oust the jurisdiction of the Commission. There are no factors present that indicate a legislated intent to apply acorrectness standard on judicial review. Ms. Blaney argues that deference is owed to the Commission’s September 23, 2021 decision torefer the matter to a Board. [35] At its core, Ms.

Blaney argues, the September 23rd decision was essentially a finding made by the Commission that it was notcompletely fettered by the Act to Dissolve. Even though the provisions of the Act to Dissolve refer to sections being consideredretroactive to October 16, 2014 (ss. 2(13)(b)), there was no retroactive date assigned to ss. 2(13)(a)), coming into force on April 1, 2015,a date after Ms. Blaney filed her complaint (March 10, 2015). In other words, the Commission was aware of the possible impact of theeffective dates of different sections of the Act to Dissolve. [36] Ms.

Blaney argues that human rights legislation has a higher status than what might be regarded as ‘regular’ forms of legislation.Given the societal goals behind human rights legislation it is considered quasi-constitutional in nature. This is a legal principle beyonddispute as illustrated in Insurance Corp. of British Columbia v. Heerspink, (SCC), 1982 2 S.C.R. 145.

As Lamer, J.Court noted in Herspink at pp. 157-158: When the subject matter of a law is said to be the comprehensive statement of the “human rights” of the people living in that jurisdiction,then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they considerthat law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others.Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment,it is intended that the Code supersede all other laws when conflict arises.

As a result, the legal proposition generalia specialibus non derogant cannot be applied to such a code. Indeed the Human RightsCode, when in conflict with “particular and specific legislation”, is not to be treated as another ordinary law of general application. Itshould be recognized for what it is, a fundamental law. Furthermore, as it is a public and fundamental law, no one, unless clearly authorized by law to do so, may contractually agree to suspendits operation and thereby put oneself beyond the reach of its protection. [emphasis added] [37] Ms.

Blaney cites the Nova Scotia Court of Appeal decision in Halifax (Regional Municipality) v. Nova Scotia (Human RightsCommission), 2008 NSCA 21, where, at para. 70, is found the following: … I am satisfied that human rights legislation will supersede conflicting Acts, whether or not there is a supremacy clause, unless acontrary intention is clearly expressed in the conflicting statute. [emphasis added] [38] Ms.

Blaney notes in para. 52 of her pre-hearing brief that: The Act to Dissolve did not clearly, unequivocally, or expressly override the primacy of the Human Rights Act nor oust the jurisdiction ofthe Commission. In fact, the Act to Dissolve does not even mention the [Human Rights] Act, the Commission, or discrimination in anymanner. [emphasis added] [39] Could the Province strip away the enforcement of a person’s protected human rights? Ms. Blaney says ‘perhaps’, but only by theuse of clearly expressed language to that effect. [40] While the Act to Dissolve does not mention Ms.

Blaney by name, she was the only President the organization ever had. Duringargument, the Province accepted that it had only Ms. Blaney in mind, as President of Efficiency NB, when it drafted the provisions inissue. An email from Mr.

Mullin to staff counsel of the Commission dated March 8, 2017, succinctly described the underlying intent (butnot the reasons) of the legislation: We agree that the legislation prevents anyone in the position of President from further pecuniary recovery or other remedy. … … all allegations surrounding the dispute which could possibly be brought as part of any proceeding before an administrative body arecaptured by the legislation.

… The legislation is clear and the duty of the [Human Rights] Commission to follow the law should be equally clear. [emphasis added] [ 41 ] In my view, the wording of the Act to Dissolve did not remove recourse to the legislated regime in place to protect the human rights of any of the Province’s citizens. Stated directly, if a government is to remove recourse to the rights and processes enshrined in the HRA (even if it is targeted at one specific office holder) it must directly say so.

This accords with the notion of parliamentary supremacy and the views of the Supreme Court in Heerspink as set out above. [ 42 ] It is to be accepted, one hopes, that society recognizes that the general principles of our democratic system are entwined with recognition of, and respect for, fundamental human rights. But this can be so only to the degree that such rights can be enforced. Otherwise, such rights are but hollow words.

One may imagine circumstances which, being of such magnitude on their face, it might arguably be seen as justification for a departure from the protections of the HRA and the related general democratic principles. It may be that there is something in the present factual context that speaks to that justification. But the reasons why the Province felt it necessary to seek the removal of the protection and enforcement of Ms. Blaney’s human rights were not explained to me.

Nor, in any event, would any explanation likely be sufficient to overcome the lack of legislative specificity required to achieve the end it sought. [ 43 ] It must be remembered that our courts have recognized that human rights are different - standing near the top of our legal hierarchy. They are not a class of rights or interests that arise in the context of ordinary common law rights or legislative rights. Human rights, by their very nature, are not given or created by governments. The mechanism to enforce such rights is created by government - but not the right itself.

Democracies depend on governments to uphold and enforce rights of this type. New Brunswick has passed the HRA to achieve that goal. The

Preamble to the HRA is illustrative of the Legislature’s historic commitment to those ideals -ideals from which it now wishes to depart in relation to Ms.

Blaney: WHEREAS recognition of the fundamental principle that all persons are equal in dignity and human rights without regard to race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, family status, sexual orientation, sex, gender identity or expression, social condition or political belief or activity is a governing principle sanctioned by the laws of New Brunswick ; and WHEREAS ignorance, forgetfulness or contempt of the rights of others are often the causes of public miseries and social disadvantage; and WHEREAS people and institutions remain free only when freedom is founded on respect for moral and spiritual values and the rule of law; and WHEREAS it is recognized that human rights must be guaranteed by the rule of law , and that these principles have been confirmed in New Brunswick by a number of enactments of this Legislature; [emphasis added] [ 44 ] I focus on the words, “ must be guaranteed by the rule of law.” In the present case, the Province argues that it intentionally removed from Ms.

Blaney, as President of Efficiency NB (and no other person), the means by which she could seek to uphold her human rights. In my view, and to repeat, absent legislation which indicates a specific departure from the words of the

Preamble and the HRA in general, the Applicant’s position risks being interpreted as running contrary to the very governing principles that the laws of New Brunswick are meant to uphold. [ 45 ] The Legislature knows full well the value in being specific in identifying the intent its legislation is meant to achieve. An example of this legislative precision is found in s. 3 of the HRA itself, where the Legislature makes clear that: 3.

This Act binds the Crown in right of the Province. [ 46 ] In my view, given the legislated high purpose to be served by the principles and enforcement process enshrined in the HRA , principles the Legislature has determined to be governing principles , the Commission was not unreasonable to interpret its authority in the manner recognized in its September 23, 2021 referral to a Board. The Commission took a purposeful approach to its

interpretation consistent with Vavilov . At para. 121 of Vavilov is found the following directive which, I find, the Commission followed:

[121] The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an

interpretation it knows to be inferior — albeit plausible — merely because the

interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome. [emphasis added] [ 47 ] The Province’s argument, that it was trying to remove certain recognized governing principles of our legal system, in the face of specific wording is s. 3 of the HRA that those same principles bound the Crown, was not persuasive. The wording of the Act to Dissolve required more explicit wording to achieve that end.

The Commission’s decision to refer reflects reasoned consideration of how to interpret the purposes of the HRA in a manner that could be considered as consistent with the Act to Dissolve . [ 48 ] Vavilov requires that tribunals consider fully the position of the parties. It is clear from the Record that the Commission gave all parties numerous opportunities to present their arguments, challenge the initial view of the Commission and to challenge each other’s position.

As stated in para. 127 of Vavilov , “ The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. ” The Commission did what was required to produce a decision that was reasonable and consistent with the principles of justification and transparency. [ 49 ] The Application is dismissed. Ms. Blaney is entitled to costs in the amount of $2,500.00 plus allowable disbursements and HST. To be clear, nothing in these reasons should be interpreted as any consideration of the merits of the complaint.

That is for the Board of Inquiry to determine. _________________________ Justice E. Thomas Christie Court of King’s Bench of New Brunswick, Trial Division