Nova Scotia (Human Rights Commission) v. Grant, 2016 NSCA 37

Nova Scotia Court of Appeal Citation: Nova Scotia (Human Rights Commission) v. Grant , 2016 NSCA 37 Date: 20160505 Docket: CA 444318 Registry: Halifax Between: The Nova Scotia Human Rights Commission Appellant v. Troy Grant, Donald C. Murray, Q.C. in his capacity as Nova Scotia Human Rights Board of Inquiry Chair, Nova Scotia Department of Natural Resources, The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondents Judge: The Honourable Justice J. Michael MacDonald The Honourable Justice Jamie W.S.

Saunders (concurring reasons) Appeal Heard: March 17, 2016, in Halifax, Nova Scotia Subject: Administrative law, standard of review, statutory

interpretation; Human Rights Act , R.S.N.S. 1989, c. 214

Summary:

Summary: The respondent Grant filed a complaint with the appellant Human Rights Commission alleging discrimination on the part of the respondent Department. The matter was referred to a Board of Inquiry. Grant and the Department reached an agreement which was presented to the Board to be incorporated into an order. The Board Chair felt he could not do so without an acknowledgement of discrimination by the Department. The Commission, fearful that this would stifle opportunities to settle future cases, appealed this decision. The respondent Department supports the Commission, with Grant not participating. Issues:

(1) Upon what standard should this Court review the Board’s decision?

(2) Was the Board’s decision reasonable? Result: Appeal allowed: 1) The Board, in reaching its conclusion, was interpreting its home statute. As such, it was entitled to deference; meaning that we would interfere only if we found the decision to be unreasonable. 2) The Board’s

interpretation of the statute was unreasonable in the circumstances. In separate concurring reasons Saunders, J.A. explained why the second prong to the Board’s refusal to “approve” a settlement and issue an order affirming it, was also wrong. There is no requirement that before giving effect to a settlement agreement under the Act, there must first be evidence presented to satisfy the Board that the settlement is in the public interest.

Such a proposition would add a wholly unnecessary layer of procedures, costs and resources to a process where settlement had already been achieved through non-adversarial discussions between the parties. Generally speaking, the mere fact that a settlement has been concluded will, in and of itself, be seen to be in the public interest. Only if there were some reasonable basis for concluding that the proffered settlement agreement was not in the public interest would a further inquiry into the facts and heightened level of security, be required. This information sheet does not form part of the court’s judgment.

Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 13 pages. Nova Scotia Court of Appeal Citation: Nova Scotia (Human Rights Commission) v. Grant , 2016 NSCA 37 Date: 20160505 Docket: CA 444318

Registry: Halifax Between: The Nova Scotia Human Rights Commission Appellant v. Troy Grant, Donald C. Murray, Q.C. in his capacity as Nova Scotia Human Rights Board of Inquiry Chair, Nova Scotia Department of Natural Resources, The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia Respondents Judges: MacDonald, C.J.N.S., Saunders and Fichaud, JJ.A.

Appeal Heard: March 17, 2016, in Halifax, Nova Scotia Held: Appeal allowed, per reasons for judgment of MacDonald, C.J.N.S.; Saunders and Fichaud, JJ.A. concurring; and Saunders, J.A. concurring by separate reasons Counsel: Ann E. Smith, Q.C. and Jason Cooke, for the appellant Troy Grant, respondent in person Donald C. Murray, Q.C., respondent in person Alicia Arana-Stirling, for the respondent, Department of Natural Resources Edward A.

Gores, Q.C. for respondent, Attorney General of Nova Scotia Reasons for judgment: [ 1 ] Must a Human Rights Board of Inquiry find discrimination before it can effect a settlement agreement? This single issue comes to us as a result of conflicting Board level decisions. BACKGROUND [ 2 ] The respondent, Troy Grant, has mobility issues and could not walk to his favourite public fishing spot in Queens’ County. Instead he would have to drive there, over one of the respondent Department’s forestry roads. When the Department decided to block vehicle access to this road, Mr.

Grant filed a complaint with the appellant Commission, alleging discrimination due to physical disability. The Commission, in turn, referred the matter to a Board of Inquiry. [ 3 ] The Department denied any discrimination or any other violation of the Human Rights Act , R.S.N.S. 1989, c. 214. Nonetheless, it offered some concessions which satisfied Mr. Grant.

They presented their settlement to the Board Chair, Donald Murray, Q.C., for approval, as required by the Act . [ 4 ] However, the Chair, relying on earlier lines of reasoning from fellow board chairs, felt that he could not endorse the settlement without an acknowledgement of discrimination from the Department. For example, during the hearing, he reasoned: THE CHAIR: Well – but what – what would I be ordering? ‘Cause that’s 34 – Section 34(8) of the Act. The only way I can make an order is against a person who’s contravened the Act, and if that’s not what the Department is saying they did.

If the Department is saying, look we’re still in the process of – of accommodating the needs of people like Mr. Grant. ... THE CHAIR: …witnesses who come and testify. But my concern is, is that if you want – if you’re all here saying, make an order. Then I need to have some – I need to have a contravention under

Section 34 sub 8 of the – the Act. And that can be done different ways and – and those decisions I’ve referred to, and some others that I’ve made myself over the past 10 or so years, indicate how we can do that, or actually how the Department of Natural Resources can do that. And all that – all that could take would be the Department of Natural Resources acknowledging that the initial gating of the – have access which prevented you without having had done a consultation with you, constitutes the contravention. All right, and then we move on from that, okay. What’s the consequence of that?

And you know, if I’m satisfied by context that everyone’s able to provide that there is a solution, and it’s firm, and it’s something you can take to the bank. [ 5 ] These concerns were repeated by the Chair in a subsequent letter to the parties: The parties understand that the Board of Inquiry is currently of the view that in order to make an order under s.34(8) of the Human Rights Act there needs to be a finding of a violation of the Act .

The parties also understand as a result of our gathering yesterday that in order for this Board of Inquiry to make a finding that the settlement is in the public interest, some factual foundation for those conclusions need to be provided by the parties in the form of agreed submissions, an agreed Statement of Facts, or evidence provided in some other manner. The parties also appreciate that because this Board of Inquiry can only act upon evidence, if the parties choose to resolve the matter by agreement which involves a withdrawal of the complaint, then the matter can be concluded in that fashion.

[6] The Commission appeals to this Court, concerned that such a prerequisite would, among other things, represent an obstacle tothis and future settlements. The respondent Department supports the Commission. Mr. Grant did not participate in this appeal andpresumably has no further interest in the matter. The parties raised no issue with the Board’s additional requirement that there be “somefactual foundation” establishing that the settlement was in the “public interest”. ANALYSIS Standard of Review [7] I will first address the standard upon which we should review this decision.

Here, Chairman Murray was interpreting his“home” statute, over which he has an acknowledged expertise. The matter is not of central importance to the legal system. Nor does itinvolve a constitutional question or true jurisdictional question. As such, this decision is entitled to deference, meaning that we wouldinterfere only if it were found to be unreasonable. See Dunsmuir v. New Brunswick, 2008 SCC 9 , 2008 S.C.J. No 9 at paras.55-59. This Court, in Holland and Tri-County Regional School Board v.

Nova Scotia (Human Rights Board of Inquiry), 2015 NSCA 2explained what reasonableness means in a human rights context: [12] Falkenham must now be read in light of a series of Supreme Court decisions that apply a reasonableness standard of review toquestions of law involving

interpretation of a tribunal’s home statute or statutes closely related: Alberta (Information and PrivacyCommissioner) v. Alberta Teacher’s Association, 2011 SCC 61 , (¶34, 39, 41); McLean v. British Columbia (SecuritiesCommission), 2013 SCC 67 . Nevertheless, a reasonableness standard may be rebutted if that is inconsistent with legislativeintent: Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 (¶15). Rogers was recently applied by the Federal Court of Appeal in Johnstone v.

Canada (Border Services), 2014 FCA 110 . [13] For purposes of this case where the Board is primarily interpreting and applying the Human Rights Act, a reasonablenessstandard of review is appropriate. [14] In Izzak Walton Killam Health Centre v. Nova Scotia (Human Rights Commission), 2014 NSCA 18 , this Courtsummarized Supreme Court descriptions of the reasonableness standard of review: 14 Reasonableness is "... concerned mostly with the existence of jurisdiction, transparency and intelligibility within the decisionmaking process.

But it is also concerned with whether a decision falls within a range of possible, acceptable outcomes which aredefensible in respect of the facts and law" (Dunsmuir, para. 47). The reviewing court should not conduct two separate analyses -- one forreasons and another for result. Rather the exercise is "organic"; the "reasons must be read together with the outcome and serve thepurpose of showing whether the result falls within a range of possible outcomes, (Newfoundland and Labrador Nurses' Union v.Newfoundland and Labrador (Treasury Board), 2011 SCC 62 , para. 14). See also Nova Scotia (Environment) v.

Wakeham, 2015 NSCA 114 at ¶ 14. Was this Decision Reasonable? [8] Turning to the merits, it would be helpful to first consider the statutory regime within which Mr. Murray was operating. Hereis the operative provision: Public hearing 34

(1) A board of inquiry shall conduct a public hearing and has all the powers and privileges of a commissioner under the PublicInquiries Act.

(2) A member of a board of inquiry shall not communicate directly or indirectly in relation to the complaint, except regardingarrangements for a hearing, with any person or with any party or the party’s representative unless all parties are given notice and anopportunity to participate, but the board may seek legal advice from an adviser independent from the parties and in such case the natureof the advice should be made known to the parties in order that they may make submissions as to the law.

(3) A board of inquiry shall give full opportunity to all parties to present evidence and make representations.

(4) Oral evidence taken before a board of inquiry at a hearing shall be recorded and copies or a transcript thereof shall befurnished upon the same terms as in the Supreme Court.

(5) Where the complaint referred to a board of inquiry is settled by agreement among all parties, the board shall report theterms of settlement in its decision with any comment the board deems appropriate.

(6) Where the complaint referred to a board of inquiry is not settled by agreement among all parties the board shall continueits inquiry.

(7) A board of inquiry has jurisdiction and authority to determine any question of fact or law or both required to be decided inreaching a decision as to whether or not any person has contravened this Act or for the making of any order pursuant to such decision.

(8) A board of inquiry may order any party who has contravened this Act to do any act or thing that constitutes fullcompliance with the Act and to rectify any injury caused to any person or class of persons or to make compensation therefor and, whereauthorized by and to the extent permitted by the regulations, may make any order against that party, unless that party is the complainant,as to costs as it considers appropriate in the circumstances.

(9) A board of inquiry shall file with the Commission the record of the proceedings, including the decision and any order ofthe board and the Commission may publish the decision and any order in any manner it considers appropriate. R.S., c. 214, s. 34; 2007,

c. 41, s. 8. [9] As explained in his letter, the Chair viewed s. 34(8) as a stumbling block. Respectfully, I think he is wrong. The Chair did notneed an admission of discrimination from the Department in order to endorse this settlement. I reach this conclusion for the followingreasons. [10] We should interpret human rights legislation in a manner that best reflects the remedial goals it seeks to achieve. This Court inIzaak Walton Killam Health Centre v. Nova Scotia (Human Rights Commission), 2014 NSCA 18 explains: [21] Although Human Rights legislation enjoys a special status in Canadian law, such legislation is not exempt from the normalprinciples of statutory

interpretation. As the Supreme Court of Canada said in Potash: [19] I accept that human rights legislation must be interpreted in accordance with its quasi-constitutional status. This means thatambiguous language must be interpreted in a way that best reflects the remedial goals of the statute. It does not, however, permitinterpretations which are inconsistent with the wording of the legislation. I agree with L’Heureux-Dubé J.’s observation that “wherelegislation provides tribunals with a specific test for discriminatory justifications, the tribunals should apply that test” (Dickson, at p.1157). [Emphasis added] [22] How this Court should approach a “reasonableness” review of a tribunal’s

interpretation of human rights legislation is describedby the Supreme Court of Canada in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53: [33] The question is one of statutory

interpretation and the object is to seek the intent of Parliament by reading the words of theprovision in their entire context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of theAct and the intention of Parliament (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd.(Re), (SCC), [1998] 1 S.C.R. 27, at para. 21). In approaching this task in relation to human rights legislation, one mustbe mindful that it expresses fundamental values and pursues fundamental goals.

It must therefore be interpreted liberally and purposivelyso that the rights enunciated are given their full recognition and effect: see, e.g., R. Sullivan, Sullivan on the Construction of Statutes(5th ed. 2008), at pp. 497-500. However, what is required is nonetheless an

interpretation of the text of the statute which respect thewords chosen by Parliament. [Emphasis added] [11] Like its Canadian counterparts, Nova Scotia’s Act, at its core, seeks to recognize our fundamental human rights and protectthem according to the rule of law: Purpose of Act 2 The purpose of this Act is to (

a) recognize the inherent dignity and the equal and inalienable rights of all members of the human family; (

b) proclaim a common standard for achievement of basic human rights by all Nova Scotians; (

c) recognize that human rights must be protected by the rule of law; (

d) affirm the principle that every person is free and equal in dignity and rights; (

e) recognize that the government, all public agencies and all persons in the Province have the responsibility to ensure thatevery individual in the Province is afforded an equal opportunity to enjoy a full and productive life and that failure to provide equality ofopportunity threatens the status of all persons; and (

f) extend the statute law relating to human rights and provide for its effective administration. 1991, c. 12, s. 1; 2008, c. 59, s.1. [12] Furthermore, the Act expressly promotes the use of settlement agreements as a means to achieve its goals. Procedure on complaint 29

(1) The Commission shall inquire into and endeavour to effect a settlement of any complaint of an alleged violation of thisAct where (

a) the person aggrieved makes a complaint in writing on a form prescribed by the Director; or (

b) the Commission has reasonable grounds for believing that a complaint exists. [13] This makes perfect sense. Parties, whatever the forum, are always better off if their disputes can be settled short of formalhearings. In the context of human rights complaints, I endorse these comments from the British Columbia Human Rights Tribunal inMcLardy v. Burt (No. 4), 2008 BCHRT 246: [11] There is a strong public policy in favour of encouraging parties to human rights complaints to resolve their disputes on avoluntary, consensual basis. As noted by the Tribunal in Nguyen v. Prince Rupert School District No. 52, 2004 BCHRT 20:

When parties are able to resolve human rights disputes by way of a settlement agreement, considerable public and private resources maybe saved. They may be able to resolve the complaint more expeditiously than would a formal hearing process. The parties may also beable to craft a resolution which more closely matches their needs and interests than would a decision of the Tribunal. Finally, themediation process itself may be better for the parties’ relationship than a formal hearing.

For all of these reasons, the Tribunalencourages and assists parties in attempting to resolve complaints. (para. 15) [12] In Williamson v. Mount Seymour Park Housing Co-operative and others, 2005 BCHRT 334, the Tribunal considered thepublic policy in favour of encouraging settlements in light of the application of s. 27(1)(d)(ii) of the Code. In that decision, the Tribunalstated that it may not further the purposes of the Code to proceed with a complaint where the underlying dispute has been settled or therespondent has already taken appropriate action to remedy the problem.

In this regard, the Tribunal noted: Generally, the Tribunal’s ability to ensure that any of the purposes of the Code will be fulfilled is harmed insofar as its resources aretaken up with matters that have already been adequately addressed, whether through settlement, unilateral respondent action or otherproceedings. More specifically, where a complaint of discrimination has already been appropriately resolved, through whatever means,there is no need to proceed with the complaint in order to prevent discrimination or provide a means of redress – the discrimination hasalready been remedied.

Further, the promotion of a climate of understanding and mutual respect where all are equal in dignity and rightsmay be enhanced by parties resolving claims of discrimination through consensual as opposed to adjudicated processes. (para. 13) [14] It is equally true that insisting upon an acknowledgement of discrimination represents a major stumbling block to securing asettlement. This case is a perfect example. Mr. Grant is content with the Department’s proposed solution, and the Department is equallycontent to offer its accommodation.

There is no need to have the Department admit discrimination in order to achieve a settlement as theAct expressly promotes. Yet the Board’s insistence on an admission of discrimination upsets that proverbial apple cart. The Commissionexplains the consequences in its factum: 35. …In effect, the decision of the Chair has essentially brought the process to a standstill.

Absent appellant intervention, thereappear to be only three avenues forward: (1) the complainant withdraws his complaint (perhaps as part of a private settlement process)while losing the protections offered under the Act; (2) the respondent admits to discrimination, whether “jurisdictional” or “technical” orotherwise (though the Commission would be surprised if DNR were to adopt such a position); or (3) the parties proceed with a Board ofInquiry, even though they have already agreed on a negotiated reasonable resolution.

It is difficult to see how any of these alternativesfurther the purposes of the Act. [15] Therefore, we should strive to interpret s. 34 in a manner that allows for settlement without an admission of discrimination. As Iwill now explain, this, in my view, is easily achieved. [16] Section 34(5) clearly deals with settlements, such as the one achieved here. Furthermore, this Court in Gavel v.

Nova Scotia,2014 NSCA 34 (at ¶ 41 and 42) confirmed that the Board’s s. 34(5) obligations can be achieved by issuing an order incorporating asettlement (as requested here). [17] It is equally clear to me that the ensuing provisions, ss. 34(6), 34(7) and 34(8) target circumstances where no settlement hasbeen reached and the Board must, therefore, exercise its authority to impose a resolution. Read in this light, s. 34(8) simply means thatthe Board must find discrimination before it can impose a resolution upon an unwilling respondent.

In other words, there is no proceduralnexus between s. 34(5) and 34(8) as the Board incorrectly concluded. [18] Furthermore, the Board’s

interpretation of these provisions renders this decision unreasonable. In other words, when there aretwo conflicting lines of authority flowing from the same administrative tribunal, they cannot function together. One

interpretation has tobe unreasonable. Here, I endorse the approach taken by the Alberta Court of Appeal in Altus Group Limited v. Calgary (City), 2015ABCA 86: 31 Assuming reasonableness applies as the standard of review of administrative tribunals in the

interpretation of their home statute orclosely connected legislation, while an administrative decision maker is unconstrained by the principles of stare decisis and is free toaccept any reasonable

interpretation of the applicable legislation, the reasonableness standard does not shield directly conflictingdecisions from review by an appellate court. In assessing the reasonableness of statutory

interpretation by the administrative tribunal, theappellate court should have regard to previous precedent supporting a conflicting

interpretation and consider whether both

interpretationscan reasonably stand together under principles of statutory

interpretation and the rule of law. [19] As Moldaver J. observes in McLean v. British Columbia (Securities Commission), 2013 SCC 67 , [2013] 3 S.C.R. 895,a legislative provision can sometimes, like here, allow only one reasonable

interpretation: 38 It will not always be the case that a particular provision permits multiple reasonable

interpretations. Where the ordinary tools ofstatutory

interpretation lead to a single reasonable

interpretation and the administrative decision maker adopts a different

interpretation,its

interpretation will necessarily be unreasonable - no degree of deference can justify its acceptance; see, e.g., Dunsmuir, at para. 75;Mowat, at para. 34. In those cases, the "range of reasonable outcomes" (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12,[2009] 1 S.C.R. 339, at para. 4) will necessarily be limited to a single reasonable

interpretation - and the administrative decision makermust adopt it. [20] Respectfully, the Board’s

interpretation of s. 34(8) is unreasonable. It cannot stand as an obstacle to settlement and, therefore,must be set aside. DISPOSITION [21] I would allow the appeal and direct the Board to issue a s. 34(5) order, incorporating the terms of the settlement agreement.

MacDonald, C.J.N.S. Concurred in: Saunders, J.A. Fichaud, J.A. Concurring Reasons for judgment: (Saunders, J.A.) [ 22 ] I fully support the analysis and conclusions of Chief Justice MacDonald. To them I would add these separate concurring reasons on a collateral point which, while it did not occupy centre stage in the arguments at the hearing, looms large in the decision of the Board of Inquiry in this case and seems to have crept into the jurisprudence of some Boards of Inquiry in other cases. [ 23 ] As is clear, the “decision” in this case consists of Mr.

Murray’s 2-page letter to the parties and counsel dated September 9, 2015 (AB 9-10). For convenience I will reproduce paragraph 3 of that letter which became the focus of this appeal: 3. The parties understand that the Board of Inquiry is currently of the view that in order to make an order under s. 34(8) of the Human Rights Act there needs to be a finding of a violation of the Act .

The parties also understand as a result of our gathering yesterday that in order for this Board of Inquiry to make a finding that the settlement is in the public interest, some factual foundation for those conclusions need to be provided by the parties in the form of agreed submissions, an agreed Statement of Facts, or evidence provided in some other manner.

The parties also appreciate that because this Board of Inquiry can only act upon evidence, if the parties choose to resolve the matter by agreement which involves a withdrawal of the complaint, then the matter can be concluded in that fashion. [ 24 ] We have already decided that the Board’s stated view requiring “a finding of a violation of the Act ” as a pre-condition to issuing “an order under s. 34(8) ” is wrong. A settlement can be achieved without there having to be any determination that a breach of the statute has occurred. [ 25 ] The point I wish to address is the Board’s second assertion where Mr.

Murray says: … in order for this Board of Inquiry to make a finding that the settlement is in the public interest, some factual foundation for those conclusions need (sic) to be provided by the parties in the form of agreed submissions, an agreed Statement of Facts, or evidence provided in some other manner. [Underlining mine] [ 26 ] I respectfully reject the Board’s position.

It is not a correct statement of the law, or the practice, or the procedure that ought to apply in such matters. [ 27 ] As I read the Board’s decision in this case, its mistaken view that a settlement depended upon a proven violation of the Act , is

intertwined with an equally erroneous view that before any Board can “approve” a settlement and issue an order affirming it, the Board must first: i. be satisfied that the settlement is in the public interest, and ii. to do that there must be some “evidence provided” proving that it is in the public interest, and iii. if such “evidence” is not forthcoming, then the only way the parties can “resolve the matter by agreement” will be to “withdraw … the complaint” which will then bring an end to the dispute.

In my opinion, those propositions are erroneous and run contrary to the clear meaning and intent of the legislation. [ 28 ] The phrase “in the public interest” does not appear anywhere in the legislation. This is not a case where we are asked to explore the amorphous meaning of those words. But I think it important to explain in this decision that the analysis does not demand the type of inquiry or evidential threshold described by the Board as being a condition precedent to approving the settlement by an order under s. 34. [ 29 ] To the extent Mr.

Murray was expressing the view that before a settlement can be “approved” under the Act , there must first be evidence presented to satisfy the Board that the settlement is in the public interest, he is wrong. Such a proposition implies that there is a positive duty upon the proponent of the settlement to offer further proof of the bona fides of the agreement. Such a proposition is erroneous from at least two perspectives.

First, its effect would be to compel some form of hearing and inquiry where such evidence could be presented and tested, a requirement which to my mind at least, ignores the clear legislated separation between approving a settlement without the need for an inquiry as is mandated by s. 34(5), contrasted with the necessity of continuing the inquiry when the settlement of a complaint has not been reached, pursuant to s. 34(6).

Second, to require such “proof” adds an extra and wholly unnecessary layer of resources, time, and expense to a process where settlement has already been achieved through non-adversarial discussions between the parties, which of course is the Commission’s primary objective under s. 29 of the Act , in the first place. [ 30 ] Generally speaking, the mere fact that a settlement has been concluded will, in and of itself, be seen to be in the public interest.

Of course a Board will always review the terms of the proffered settlement agreement to assure itself that there is nothing to indicate its affirmation would not be in the public interest – for example, if there were concerns about it being a sham, or clearly unfair, or obtained through duress. In such cases a Board would be expected to require evidence, in some form, coupled with a heightened level of scrutiny, before ratifying or rejecting the settlement agreement. But that is different than what Mr. Murray posits in the second part of his letter, and it is that implication which I feel compelled to reject.

Saunders, J.A.