Halifax Regional Municipality Appellant v. The Nova Scotia Human Rights Commission, Michael Craig, Tammy Robertson, Donald C. Murray, Q.C., in his capacity as a Human Rights Board of Inquiry, v. the, 2012 NSCA 11

NOVA SCOTIA COURT OF APPEAL Citation: Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) , 2012 NSCA 11 Date: 20120125 Docket: CA 352666 Registry: Halifax Between: Halifax Regional Municipality Appellant v. The Nova Scotia Human Rights Commission, Michael Craig, Tammy Robertson, Donald C. Murray, Q.C., in his capacity as a Human Rights Board of Inquiry, and the Attorney General of Nova Scotia Respondents Judge: The Honourable Mr. Justice Jamie W.S. Saunders Appeal Heard: January 24, 2012 Subject: Human Rights. Board of Inquiry. Jurisdiction. Mootness. Discretion. Functus Officio .

Summary: A Board of Inquiry was appointed to consider complaints of alleged discrimination where the needs of persons in wheelchairs were not accommodated by suitably equipped and accessible buses and bus routes. Through the sustained and laudable efforts of HRM, Metro Transit, the complainants, and the Nova Scotia Human Rights Commission a settlement was reached. The Chair of the Board of Inquiry incorporated the terms of the consent settlement order into his June 30, 2011, interim decision, but purported to reserve to himself jurisdiction over continuing compliance and remedies.

HRM appealed saying the Board had exceeded its jurisdiction by extending its oversight beyond the time and the subject-matter authorized by its appointment. HRM interpreted the June 30 interim

decision as enabling the Board to hear new complaints and provide new remedies beyond those reflected in the settlement. Held: Appeal dismissed. On November 28, 2011, the parties notified the Chair that all of the provisions of the interim (June)order had been successfully implemented by HRM. The Board then issued its final decision on November 29 concluding the inquiry. With it, the Chair became functus officio, rendering this case moot. There was no reason in this case for this Court to exercise itsjurisdiction and hear the appeal, in any event. Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R.342.

Whether the Board overstepped its authority need not be addressed. However, this Court’s disinclination to consider such issuesought not to preclude their being argued in an appropriate appeal where the inquiry had not concluded its mandate. This information sheet does not form part of the court’s judgment. Quotes must be fromthe judgment, not this cover sheet. The full court judgment consists of 5 pages. NOVA SCOTIA COURT OF APPEAL Citation: Halifax (Regional Municipality) v.

Nova Scotia (Human Rights Commission), 2012 NSCA 11 Date: 20120125 Docket: CA 352666 Registry: Halifax Between: Halifax Regional Municipality Appellant v. The Nova Scotia Human Rights Commission, Michael Craig, Tammy Robertson,

Donald C. Murray, Q.C., in his capacity as a Human Rights Board of Inquiry, and the Attorney General of Nova Scotia Respondents Judges: Saunders, Oland and Bryson, JJ.A. Appeal Heard: January 24, 2012, in Halifax, Nova Scotia Held: Leave to appeal is granted but the appeal is dismissed per reasons for judgment of Saunders, J.A.; Oland and Bryson, JJ.A. concurring. Counsel: Randolph Kinghorne, for the appellant Lisa Teryl, for the respondent The Nova Scotia Human Rights Commission Respondents Michael Craig, Tammy Robertson, Donald C.

Murray, Q.C. in his capacity as a Human Rights Board of Inquiry and the Attorney General of Nova Scotia not participating Reasons for judgment : [ 1 ] After hearing submissions from counsel we recessed and then returned to court to announce our unanimous decision that the appeal ought to be dismissed, on the basis of mootness, with reasons to follow. These are our reasons. [ 2 ] A Board of Inquiry was appointed pursuant to s. 32A of the Human Rights Act , R.S., c. 214, in respect of complaints launched by the respondents Michael Craig and Tammy Robertson.

Essentially, the complainants alleged discrimination on the part of the Halifax Regional Municipality and Metro Transit in failing to accommodate their needs by providing buses and bus routes, equipped and accessible for persons in wheelchairs. [ 3 ] Donald C. Murray, Q.C. was appointed to chair the inquiry. During the course of several pre-hearing conferences he was made aware of the fact that there were active discussions underway aimed at resolving the complaints. In June, 2011, Mr.

Murray was presented with a document entitled “ Consent Order ” signed by all of the parties, together with a Memorandum of Understanding (MOU) documenting the full discussions and understandings between the parties. The MOU confirmed the policy changes that had been made, and gave further detail to the operational changes and training that were to be implemented on a go forward basis. [ 4 ] On June 30, 2011, Mr. Murray issued a so-called interim decision to which he attached the “ Consent Order ” with the statement: ....

I am prepared to adopt the “Consent Order” as the core of an interim order, with some adjustments and some comments. In the very next sentence of his interim decision the Chair purported to: ... retain jurisdiction to hear the parties further on the issues of both the nature and extent of any contravention of the Human Rights Act by Metro Transit, as well as with respect to Metro Transit’s compliance with the negotiated remedies which appear in the “Consent Order”.

[ 5 ] On July 20, 2011, the Halifax Regional Municipality appealed the interim decision. The several grounds of appeal can all be distilled to a single complaint that the Board exceeded its jurisdiction by extending its oversight beyond the time and the subject-matter authorized by its appointment. The appellant interpreted the June 30 interim decision as enabling the Board to hear new complaints of discrimination and to provide new remedies beyond those reflected in the settlement concluded by the parties. [ 6 ] In response, the Commission says the appeal is moot and ought to be dismissed on that basis.

Alternatively, the Commission says the Board ’ s interim order cannot reasonably be interpreted to mean that its chair retained, or assigned to himself, the power to hear new complaints and craft new remedies. It asks that the appeal be dismissed and the interim order upheld. If, however, the comments by Mr.

Murray in his June 30 interim decision could be interpreted as authorizing him to hear new complaints and dispense relief unrelated to the original, settled remedies, then the Commission would agree that the Board had exceeded its jurisdiction and that its interim order would be “ incorrect ” , having created a “ substantial hardship ” for the appellant ( Doucet-Boudreau v.

Nova Scotia (Minister of Education) , 2003 SCC 62 at para. 58 ). [ 7 ] As noted earlier, the Municipality ’ s notice of appeal was filed July 20, 2011. [ 8 ] On November 28, 2011, the parties notified the Chair by letter that all of the provisions of the interim order had been successfully implemented by the appellant. They asked that a final order be issued, concluding the inquiry. Mr. Murray issued his final order on November 29, 2011, which states, in part: 3.

On November 28, 2011, I was advised, by correspondence from counsel for the Nova Scotia Human Rights Commission, that all six components of the June order have been completed by Metro Transit to the satisfaction of all the parties. I further understand that the parties have recognized the response of Metro Transit to the June order as impressive. Metro Transit has performed its undertakings with an acknowledged abundance of good faith.

Metro Transit has conveyed to the parties that it will encourage and consider ways to facilitate continuing and effective dialogue with the complainants and others who are affected by transit access issues. This is the positive outcome that was anticipated from the orders that the parties recommended to this Board of Inquiry in June. 4. Based on the foregoing, and for the reasons already expressed in the decision I made in June, I have decided that it is appropriate to now conclude my inquiry pursuant to s. 34(5) of the Act . 5. A hand-signed copy of this decision will be delivered to the Commission.

An electronically signed copy has been distributed to the parties in pdf format. DATED at Halifax, Nova Scotia, this 29th day of November, 2011. Donald C. Murray, Q.C. Board of Inquiry [ 9 ] While we appreciate the appellant ’ s concern that the Board may have overstepped its authority by purporting to expand its work beyond the terms of its appointment, we are unanimously of the view that we ought not to consider the merits of this appeal. The scope of the Board ’ s mandate and whether the parties ’ own solicitations persuaded Mr. Murray to extend his oversight beyond what was intended need not be addressed.

We wish to make it clear that our disinclination to consider such issues in this case ought not to preclude their being argued in an appropriate appeal where the inquiry has not concluded its mandate. [ 10 ] This case is moot. The Board ’ s final decision issued November 29, 2011, concluded the inquiry. With it, the Chair became functus officio . [ 11 ] When the appellant filed its notice of appeal, the Board ’ s June 30 interim order was still extant. One can certainly understand the Municipality ’ s interest in preserving its rights on appeal.

However, that interest disappeared upon the filing of the Board ’ s final

decision on November 29. [12] There is no reason in this case for us to exercise our discretion and hear the appeal, in any event. First, there is no longer anylive controversy between the appellant and the respondents. Second, there are no collateral issues such as a future legal action in anotherforum that would be impacted by the Court hearing this appeal. Finally, in considering whether to hear a moot appeal, we must becautious when departing from our traditional role.

Recognizing the demands protracted litigation places upon scarce judicial resources,we see nothing here which would cause us to delay or displace another appeal, for the sake of this one. For example, we are notconvinced that the issues identified by the appellant will re-occur soon, or raise a question of general public importance, or impact uponan unsettled area of the law with a social cost attached to it, which might then invite our intervention. In our view, none of these criteriaalone, or considered together, provide a justification to hear the moot issues raised by the appellant (Borowski v.

Canada (AttorneyGeneral), (SCC), [1989] 1 S.C.R. 342). [13] For all of these reasons we would grant leave to the appellant to appeal the interim decision of the Board of Inquiry, but woulddismiss the appeal. There shall be no order for costs. Saunders, J.A. Concurred in: Oland, J.A. Bryson, J.A.