2016 NSCA 6, 2016 NSCA 6

I.A.F.F., Local 268 v. AdekayodeCA 4385102016-02-102016 NSCA 6 Nova Scotia Court of Appeal CHRR Doc. 16-3006 International Association of Fire Fighters, Local 268 Applicant v. Ray Adekayode, Nova Scotia Human Rights Commission, Nova Scotia Human Rights Commission Board of Inquiry,Attorney General of Nova Scotia, and Halifax Regional Municipality Respondents Date of Decision: February 10, 2016 Before: Nova Scotia Court of Appeal, Fichaud, Saunders and Scanlan, JJ.A. Reasons by: Fichaud J.A. Docket No.: CA 438510 Appeal from: (sub nom. Adekayode v. Halifax (Regional Municipality)) (2008), (NS HRC), 81 C.H.R.R.

D/257 (N.S.Bd.Inq.) Appearances by:Gordon N. Forsyth, Counsel for the AppellantAnn Smith and Jason Cooke, Counsel for the Respondent Nova Scotia Human Rights CommissionMartin Ward and Tara Gault, Counsel for the Respondent Halifax Regional MunicipalityRay Adekayode, Counsel appearing but not making submissionsEdward A.

Gores, Counsel for the Respondent Attorney General of Nova Scotia, not appearingNova Scotia Human Rights Commission Board of Inquiry, not appearing APPEALS AND JUDICIAL REVIEW — error of law in determining whether there was a prima facie case — findings on theevidence — interpreting legislation — ADMINISTRATIVE TRIBUNALS — COURTS — standard of review of court overadministrative tribunals BENEFITS — employment insurance benefits denied — FAMILY STATUS — family status definition includes having aparent-child relationship — employment insurance benefits denied to biological parent — AFFIRMATIVE ACTION —purpose of special program — TRADE UNIONS — collective agreement includes discriminatory provision DISCRIMINATION — adverse effect discrimination — definition of discrimination — Kapp test — Law test (definition ofhuman dignity) — BURDEN OF PROOF — elements of a prima facie case — CANADIAN CHARTER OF RIGHTS ANDFREEDOMS — s. 15(1) (equality) — s. 15(2) (affirmative action programs) — EQUALITY — equality in the administration,substance and benefit of the law — HUMAN RIGHTS — nature and purpose of human rights legislation — principles used tointerpret the Charter applied to human rights legislation —

INTERPRETATION OF STATUTES — definition of"discriminate", "discrimination" and "family status"

Summary: The Nova Scotia Court of Appeal overturned a decision of the Nova Scotia Board of Inquiry, which ruled thatHalifax Regional Municipality ("HRM") and International Association of Fire Fighters, Local 268 ("IAFF") discriminatedagainst Ray Adekayode on the ground of family status. Under his collective agreement, if Mr. Adekayode took parentalleave, he was not entitled to any financial top-up of employment insurance benefits, but if he had been an adoptive father,he would have been entitled to top-up benefits. Mr. Adekayode and his wife had a third child who was born shortly after the second. Mr.

Adekayode and his wife hadintended to split the parental leave so that she would not be away from her work for as long a period of time, and so that hecould spend some uninterrupted time with his newborn son. However, when they learned that he was not entitled to a top-up of parental leave, they decided that, for financial reasons, he would not take any parental leave and she would take thefull leave that she was entitled to. Mr.

Adekayode complained that the failure of the HRM/IAFF collective agreement to provide parental leave top-up benefitsfor him while providing top-up benefits for adoptive parents was discriminatory.

The Board of Inquiry found that the ground of family status takes in the whole social relationship of obligation anddependence that exists between parents and children, regardless of whether the relationship is biological or adoptive.Distinctions based on how the relationship was created are covered by the ground. The collective agreement did not provide any pay or top-up to biological parents during parental leave.

However, adoptiveparents who received employment insurance benefits would be provided with a Supplementary Unemployment Benefit thatpaid 75 percent of the employee’s weekly rate of pay for the two-week Employment Insurance waiting period, and then 93percent of the weekly rate of pay for a maximum of 10 additional weeks. A plain reading of the collective agreementdemonstrates that there was a distinction made between adoptive parents and other new parents, with adoptive parentsreceiving a benefit that natural parents do not.

HRM and IAFF claimed that there was no discrimination because the benefit for adoptive parents was intended to addresstheir special and unique needs. They also proposed that because the provision in issue is a negotiated benefit, arrived atthrough compromise, a top-up for adoptive parents was a permissible and acceptable step forward from no top-up benefitsfor anyone, and perhaps a stepping stone toward top-up benefits for all parents at some future negotiation. The Board of Inquiry rejected both these arguments.

Adoption and parental leave are designed to allow parents to be offfrom work when integrating a new child into the family unit. Adoptive parents are given extra financial support to take thattime off and biological parents are not, whether the child in question has special needs or not. The rule is not based onwhether there are special or unique needs. The Board of Inquiry found that the provision in the collective agreement was discriminatory, and noted that it has beendropped from the newly negotiated version of the agreement.

The Court, on appeal, upheld the Board’s finding that there was prima facie discrimination in the terms of the collectiveagreement based on family status. However, the Court also found that the provision in the collective agreement was anameliorative program or activity designed to assist a disadvantaged group. The Court reviewed the evidence regarding thedifficult circumstances of adoptive parents who are often dealing with children with special needs and previous trauma.

TheCourt accepted that the collective agreement provision was a special program designed to ameliorate the disadvantage ofadoptive parents, and consequently the discrimination against natural parents was justified. The Court found that the Board of Inquiry erred in its

interpretation and application of s. 6(1) of the Human Rights Act whichprotects ameliorative programs from challenge. The Court overturned the Board’s order and dismissed Mr. Adekayode’s complaint. CASES CITED Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670: 117, 137, 142,149, 158 Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Assn., 2011 SCC 61, [2011] 3 S.C.R. 654: 31 Andrews v. Law Society of British Columbia (SCC), [1989] 1 S.C.R. 143, 10 C.H.R.R. D/5719: 64, 75, 83 Auton (Guardian ad litem of) v.

British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657: 76 Canada (Attorney General) v. Johnstone, 2014 FCA 110, 79 C.H.R.R. D/324: 33 Canada (Human Rights Comm.) v. Taylor, (SCC), [1990] 3 S.C.R. 892, 13 C.H.R.R. D/435: 38 Canada (Human Rights Comm.) and Mowat v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, 73 C.H.R.R.D/30: 39, 60 Canadian National Railway Co. v. Seeley, 2014 FCA 111, 79 C.H.R.R. D/339: 35 Carrigan v. Nova Scotia (Dept. of Community Services), 1997 NSCA 19, 28 C.H.R.R. D/281: 59 Dr. Q. v.

College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226: 42 Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190: 30, 36 Eli Lilly & Co. v. Novopharm Ltd., (SCC), [1998] 2 S.C.R. 129: 151 Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222: 63 Fadelle v. Nova Scotia College of Pharmacists, 2013 NSCA 26: 42 Fashoranti v. College of Physicians and Surgeons of Nova Scotia, 2015 NSCA 25: 42 Foster v. Nova Scotia (Human Rights Comm.), 2015 NSCA 66, CHRR Doc. 15-3064: 31 Gould v. Yukon Order of Pioneers, (SCC), [1996] 1 S.C.R. 571, 25 C.H.R.R.

D/87: 36 Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, [2004] 3 S.C.R. 357: 76

I.A.F.F., Local 268 v. Adekayode (2015), (NS HRC), 81 C.H.R.R. D/257 (N.S. Bd.Inq.): 1, 22, 46, 81,100, 113, 120, 143 Izaak Walton Killam Health Centre v. Nova Scotia (Human Rights Comm.), 2014 NSCA 18, 78 C.H.R.R. D/340: 31 Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548: 65 Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497: 76, 93 McLean v. British Columbia (Securities Comm.), 2013 SCC 67, [2013] 3 S.C.R. 895: 39, 158 Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, 75 C.H.R.R. D/369: 61 Mouvement laïque québécois v.

Saguenay (City), 2015 SCC 16 , [2015] 2 S.C.R. 3, 83 C.H.R.R. D/291: 39 Muggah v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2015 NSCA 63: 76 Nova Scotia (Environment) v. Wakeham, 2015 NSCA 114, CHRR Doc. 15-3122: 31 Nova Scotia (Human Rights Comm.) v. Dural, 2003 NSCA 122, 219 N.S.R. (2d) 91, 48 C.H.R.R. D/234 (C.A.): 30 Nova Scotia (Human Rights Comm.) v. Play It Again Sports Ltd., 2004 NSCA 132, 50 C.H.R.R. D/487: 30, 42 Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 71 C.H.R.R. D/1: 86 Quebec (Attorney General) v. A., 2013 SCC 5, [2013] 1 S.C.R. 61: 64, 70, 76, 87 R. v.

Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483: 63, 94, 117, 137, 145, 152, 158 R. v. Oakes, (SCC), [1986] 1 S.C.R. 103: 93 Rogers Communications Inc. v. S.O.C.A.N., 2012 SCC 35, [2012] 2 S.C.R. 283: 39 Saskatchewan (Human Rights Comm.) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, 76 C.H.R.R. D/1: 38, 158 Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633: 151 Stewart v. Elk Valley Coal Corp., 2015 ABCA 225, 81 C.H.R.R. D/367: 35 Tri-County Regional School Board v. Nova Scotia (Human Rights Board of Inquiry), 2015 NSCA 2, CHRR Doc. 15-3005: 31 University of British Columbia v.

Berg, (SCC), [1993] 2 S.C.R. 353, 18 C.H.R.R. D/310: 36, 59 Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493, 31 C.H.R.R. D/1: 58 Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396: 76 LEGISLATION CITED Canada Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982(U.K.), 1982, c. 11s. 15: 2, 29, 52, 66, 83s. 15(1): 32, 40, 50, 62, 87s. 15(2): 32, 40, 115, 142, 158 Employment Insurance Act, S.C. 1996, c. 23s. 22: 132s. 23: 132 Employment Insurance Regulations, SOR/96-332, reg. 37: 132 British Columbia Human Rights Code, R.S.B.C. 1996, c. 210: 61 Nova Scotia Human Rights Act, R.S.N.S. 1989, c. 214s. 2: 91s. 2(a): 92s. 3(h): 45s. 4: 23, 43, 49, 60s. 5: 24s. 5(1): 32, 40, 61, 116, 159

s. 5(1)(d): 45s. 5(1)(r): 2, 23, 28, 43, 102, 141, 160s. 6(i): 2, 24, 40, 103, 114, 124, 130, 135, 141, 153s. 34A: 30s. 36(1): 29 Labour Standards Code, R.S.N.S. 1989, c. 246: 4 Trade Union Act, R.S.N.S. 1989, c. 475: 154 Ontario Human Rights Code, R.S.O. 1990, c. H.19: 86 Saskatchewan Saskatchewan Human Rights Code (The), S.S. 1979, c. S-24.1: 38 AUTHORITIES CITED Hogg, Peter W., Constitutional Law of Canada, 5th ed. (Scarborough, Ont.: Thomson Carswell, 2007): 74 MacKay, A. Wayne, "The Marriage of Human Rights Codes and

Section 15 of the Charter in Pursuit of Equality: A Case forGreater Separation in both Theory and Practice" (2013) 64 U.N.B.L.J. 54: 85 REASONS FOR DECISION [1] Mr. Adekayode's collective agreement topped up the federal Employment Insurance benefits that are paid to adoptive parents whotake parental leave, but not those of birth parents on parental leave. Mr. Adekayode, a birth parent, claimed that the collective agreementdiscriminated against him based on family status, contrary to Nova Scotia's Human Rights Act. A Human Rights Board of Inquiry [ (NS HRC), 81 C.H.R.R.

D/257] agreed, and ordered a remedy against Mr. Adekayode's union and employer who signedthe collective agreement. Mr. Adekayode's union appeals. His employer endorses the union's appeal. [2] The submissions to this Court focused on (1) whether the collective agreement's top-up "discriminated" within s. 5(1)(

r) of theHuman Rights Act [R.S.N.S. 1989, c. 214], and, if so, (2) whether the top-up is saved by s. 6(

i) of the Act as a "program or activity thathas as its object the amelioration of conditions of disadvantaged individuals or classes of individuals" — namely adoptive parents. Theseare statutory terms. Yet the bulk of argument addressed how the principles under s. 15 of the Charter of Rights and Freedoms govern theinterpretation of the Human Rights Act. 1. BACKGROUND [3] Since 2004, the respondent Ray Adekayode has been a firefighter employed by the respondent Halifax Regional Municipality("HRM").

He is subject to a collective agreement dated June 1, 2004 ("collective agreement"), between HRM and the appellantInternational Association of Firefighters, Local 268 ("Local 268"). [4] Firefighters who become parents may access pregnancy or maternity benefits and parental benefits prescribed by the LabourStandards Code, R.S.N.S. 1989, c. 246, as amended, by the Employment Insurance ("EI") program under the Employment Insurance Act,S.C. 1996, c. 23 and the Employment Insurance Regulations, SOR 96/332, as amended, and by the collective agreement.

The LabourStandards Code is not involved in this case. [5] The collective agreement integrates its benefits with those under the federal EI program for (1) pregnancy or maternity leave and (2)parental leave. [6] The EI program provides, after a two week waiting period, up to 15 weeks of pregnancy or maternity benefits to biological motherswho cannot work because of pregnancy or recent birth. [7]

Article 29.01 of the collective agreement complements the EI program by providing to pregnant employees 17 weeks of leave duringwhich certain employment benefits are continued. The 17 weeks conform to the waiting and pregnancy or maternity periods under the EIprogram.

Article 29.01.10 provides a Pregnancy Leave Allowance of 75 percent earnings for the two-week EI waiting period, then topsup the EI benefit to 93 percent earnings for the further 15 weeks. [8] The EI program also extends up to 35 weeks per couple of parental leave benefits to parents who are caring for their newbornbiological child or their newly adopted child. The couple may split the 35 weeks.

Biological parents may take the 35 weeks in addition tothe mother's 15 weeks of maternity benefits. [9] The EI benefit for both pregnancy/maternity leave and for parental leave is capped at 55 percent of the employee's average insurableweekly earnings, to a maximum set by the federal government. [10] This case focuses on the collective agreement's provisions for parental leave benefits. [11] Before 2004, the earlier collective agreement for Local 268's firefighters did not provide a supplementary benefit to top up EIbenefits during either pregnancy/maternity leave or parental leave.

[ 12 ] In 2004, during negotiations for a new collective agreement, Local 268 proposed a top-up of pregnancy and parental EI benefits to 93 percent of earnings for all employees in the unit who were on either pregnancy/maternity leave or parental leave. HRM disagreed, citing cost. After discussion, Local 268 and HRM settled on a top-up of EI benefits for (1) expectant mothers on pregnancy/maternity leave and (2) adoptive parents taking parental leave. There was no top-up for biological parents taking parental leave.

Local 268's lead negotiator in 2004, Chief Philip McNulty, testified how this compromise occurred: … So the tone at the table relative to the parental leave was there's only one pot of money. And there's phrases like that's going to have a cost to it … I didn't need them to tell me that it could be a significant cost.

We … I, the union had done their homework and they had laid on enough hints that it would be of significant cost … That we took what we got, it was much better than what we had previously … … [T]he union started down a path of achieving parental leave top up for all employees … And settled for top up leave and getting the top up not just for adoptive parents but also for biological moms … because it didn't exist previous to that … So you know we saw that in combination with other gains as something that was much enhanced versus what we had previous. [ 13 ] The resulting collective agreement of 2004 included the following provisions,

article 29.02.8 being pivotal to this case: 29.01 PREGNANCY LEAVE 29.01.1 Pregnancy leave shall be considered as a right for all employees.

Employees shall be granted pregnancy leave in accordance with the provisions of this collective agreement unless increased or better leave or benefits are provided by the provisions [of] the Labour Standards Code of Nova Scotia. 29.01.3 Upon the request of the employee and presentation of a certificate by the employee's legally qualified medical doctor stating that the employee is pregnant and specifying the date upon which delivery is expected, the employee may, at her option, commence pregnancy leave at any time during a period which commences sixteen (16) weeks before the expected date of delivery and which ends on the actual date of delivery … 29.01.10 Pregnancy Leave Allowance (

i) An employee entitled to pregnancy leave under the provisions of this collective agreement and who provides the Employer with proof that she has applied for and is entitled to receive Employment Insurance benefits pursuant to the Employment Insurance Act , shall be paid an allowance in accordance with the Supplementary Unemployment Benefit (SUB) provisions of the Act and the following subsections: (ii) With respect to the period of pregnancy leave, payments made in accordance with the SUB Plan will consist of the following:

(1) Where the employee is subject to a waiting period of two (2) weeks before receiving EI benefits, payments equivalent to seventy- five percent (75 percent) of her weekly rate of pay, less applicable deductions, for each week of the two (2) week waiting period, less any other earnings received by the employee during the benefit period.

(2) Up to a maximum of fifteen (15) additional weeks, payments equivalent to the difference between the weekly EI benefit the employee is eligible to receive and ninety-three percent (93 percent) of her weekly rate of pay, less applicable deductions, less any other earnings received by the employee during the benefit period which may result in a decrease in the EI benefits to which an employee would have been eligible if no other earnings had been received during the period. … 29.02 PARENTAL LEAVE 29.02.1 Parental leave shall be considered as a right for all employees.

Employees shall be granted parental leave in accordance with the provisions of this collective agreement unless increased or better leave or benefits are provided by the provisions of the Labour Standards Code of the Province of Nova Scotia. … 29.02.3 An employee who becomes a parent through the birth of a child or the placement of a child in the care of the employee for the purpose of adoption pursuant to the laws of the province or through guardianship is entitled to an unpaid leave of absence of, at the employee's choice, up to thirty-five (35) weeks or, in the case of adoption, any longer period required by the adoption agency or the province … … 29.02.8 Leave for Adoption Allowance (

i) An employee entitled to leave under this Agreement by becoming a parent through the placement of a child in the care of the employee for the purpose of adoption pursuant to the laws of the province, who provides the Employer with proof that she/he has applied for, and is eligible to receive employment EI benefits pursuant to the Employment Insurance Act shall be paid an allowance in accordance with the Supplementary Unemployment Bene-fits (S.U.B.) Plan and the following subsections: (

i) With respect to the period of adoption leave, payments made according to the S.U.B. Plan will consist of the following:

(1) Where the employee is subject to a waiting period of two (2) weeks before receiving EI benefits, payments equivalent to seventy- five percent (75 percent) of her/his weekly rate of pay, less applicable deductions for each week of the two (2) week waiting period, less

any other earnings received by the employee during the benefit period.

(2) Up to a maximum of ten (10) additional weeks, payments equivalent to the difference between the weekly EI benefit the employeeis eligible to receive and ninety-three per cent (93 percent) of her weekly rate of pay, less applicable deductions, less any other earningsreceived by the employee during the benefit period which may result in a decrease in the EI benefits to which the employee would havebeen eligible if no other earnings had been received during the period. [Emphasis added.] [14] The collective agreement's term is June 1, 2004, to May 31, 2016, subject to mid-term "reopeners".

The relevant provisions wereunchanged by the reopener negotiations in 2007. They were in force in January 2010 when Mr. Adekayode filed his human rightscomplaint. [15] During the 2014 reopener negotiations, HRM requested the elimination of the "Leave for Adoption Allowance" (article 29.02.8).Local 268 agreed in exchange for a benefit to firefighters injured on duty. Under the amended language, no firefighter will receive a top-up of EI parental benefits. These amendments occurred after the dates that govern this proceeding. The collective agreement's languagepertaining to this case is quoted above. [16] Mr.

Adekayode and his wife Colleen have three biological children. Their second and third children were born while Mr.Adekayode was a firefighter under the collective agreement. [17] The Adekayodes' second child was born in January 2008. Ms. Adekayode took a year of pregnancy leave from her job at CapitalHealth. [18] When Ms. Adekayode returned to Capital Health in January 2009, she was pregnant with their third child. The Adekayodes decidedthat Ms. Adekayode would return to work, and the couple would split their available parental leave. After inquiring with Local 268 inearly 2009, Mr.

Adekayode was told that the collective agreement entitled him to 35 weeks parental leave, but not to a top-up of EIparental leave benefits. [19] Absent a top-up, Mr. Adekayode decided not to take the parental leave. He said he did not apply for leave "because it meant it wasa sacrifice to my family economically". As he was not on leave, he did not apply for EI parental leave benefits. [20] On January 19, 2010, Mr. Adekayode filed a complaint under the Human Rights Act, R.S.N.S. 1989, c. 214, against Local 268 andHRM.

He claimed that the denial of the top-up discriminated against him based on his family status as a biological parent. [21] A Human Rights Board of Inquiry ("Board") heard Mr. Adekayode's complaint from November 17 to 21, 2014. Mr. Donald C.Murray, Q.C. chaired the Board. [22] On March 18, 2015, the Board issued a written decision (Case Number 42000-30-H099-0078 [ (NS HRC), 81C.H.R.R. D/257]). The decision upheld Mr. Adekayode's complaint of discrimination based on family status. [23] Section 5(1)(

r) of the Human Rights Act prohibits discrimination based on "family status".

Section 4 defines "discrimination". TheBoard (paras. 21-22) found that the collective agreement's differentiation between biological and adoptive parents, for the top-up of EIbenefits, drew a distinction based on "how the parent/child relationship was created" which discriminated based on family status. [24]

Section 6(

i) of the Human Rights Act says that s. 5 does not apply "to preclude a law, program or activity that has as its object theamelioration of conditions of disadvantaged individuals or classes of individuals …" Local 268 and HRM had urged that the collectiveagreement's top-up of EI benefits for adoptive parents had an ameliorative object to address the bonding challenges that face adoptiveparents. The Board disagreed, and held that s. 6(

i) did not save the discriminatory top-up provision. [25] The Board ordered that Mr. Adekayode be given 12 weeks leave to be paid as if he were on parental leave and in receipt of EIbenefits plus the collective agreement's top-up allowance. The Board ordered that HRM and Local 268 share the cost. [26] Later I will discuss the Board's reasons. [27] On April 23, 2015, Local 268 appealed to the Court of Appeal. HRM has not appealed, but supports Local 268's submissions. Mr.Adekayode has not actively participated in the appeal, but the Board's ruling is supported by the Commission's counsel. 2.

ISSUES [28] The parties have addressed several issues that I will consolidate into two. Did the Board's ruling offend the appellate standard ofreview either by: 1. concluding that the collective agreement discriminated within s. 5(1)(

r) of the Human Rights Act, or 2. ruling that the collective agreement's top-up provision was not saved by s. 6(i)? 3. STANDARD OF REVIEW [29] Local 268 appeals under s. 36(1) of the Human Rights Act. Section 36(1) permits an appeal "on a question of law". The issues oflaw involve the

interpretation of provisions in the Human Rights Act and how the construction of similar wording in s. 15 of the Charteraffects the

interpretation of the Act. [30] Nova Scotia's Human Rights Act, s. 34A, says that the Board of Inquiry's decision is "final", but the Act contains no other privativedirective. Before Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, most issues of law under the Human RightsAct were reviewed for correctness: Nova Scotia (Human Rights Comm.) v. Dural, 2003 NSCA 122, 219 N.S.R. (2d) 91 [ 48 C.H.R.R.D/234] (C.A.), at paras. 20-21; Nova Scotia (Human Rights Comm.) v. Play It Again Sports Ltd., 2004 NSCA 132 [ 50 C.H.R.R. D/487],

para. 47. [31] Recently, this Court has said that a Human Rights Board of Inquiry's

interpretation of the Human Rights Act attracts a standard ofreasonableness: Izaak Walton Killam Health Centre v. Nova Scotia (Human Rights Comm.), 2014 NSCA 18 [ 78 C.H.R.R. D/340], paras12-15; Tri-County Regional School Board v. Nova Scotia (Human Rights Board of Inquiry), 2015 NSCA 2 [ CHRR Doc. 15-3005],paras. 12-13; Foster v. Nova Scotia (Human Rights Comm.), 2015 NSCA 66 [ CHRR Doc. 15-3064], para. 16. See also Nova Scotia(Environment) v. Wakeham, 2015 NSCA 114 [ CHRR Doc. 15-3122], paras. 14-15, 21-22, 52-53. These authorities follow the SupremeCourt of Canada's direction that an administrative tribunal's

interpretation of its home statute presumptively is reviewed forreasonableness: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Assn., 2011 SCC 61, [2011] 3 S.C.R. 654, para.39. [32] The issues in this appeal turn on the usage or transference of principles from the Charter of Rights and Freedoms to interpret thesame terms in the Human Rights Act: namely (1) "discriminate" under s. 5(1) of the Act and "discrimination" s. 15(1) of the Charter, and(2) "law, program or activity", "has as its object the amelioration" and "disadvantaged" under s. 6(

i) of the Act and s. 15(2) of theCharter. The application or transference of constitutional principles was not an issue in the decisions of this Court, cited in the precedingparagraph, that applied the reasonableness standard. [33] In Canada (Attorney General) v. Johnstone, 2014 FCA 110 [ 79 C.H.R.R.

D/324] Justice Mainville for the Court explained why, inhis view, the presumption of reasonableness was rebutted and the standard of correctness applied to quasi-constitutional issues underhuman rights legislation: [45] First, the Supreme Court of Canada has consistently held that fundamental rights set out in the human rights legislation, such asthe Canadian Human Rights Act, are "quasi-constitutional" rights [citations omitted] [46] As noted in Dunsmuir at paragraph 58, and for obvious reasons, constitutional issues are necessarily subject to review on acorrectness standard.

In my view, this approach extends as well to quasi-constitutional issues involving fundamental human rights set outin Canadian Human Rights Act and provincial human rights legislation. [47] Second, a multiplicity of courts and tribunals are called upon to interpret and apply human rights legislation, including theCanadian Human Rights Act. As this appeal illustrates, labour arbitration boards, labour relations boards and superior courts throughoutCanada are regularly called upon to adjudicate with respect to the fundamental human rights described in the Canadian Human RightsAct and other human rights legislation.

As a result, courts have been called upon in the past and will be called upon in the future toexamine the same legal issues the Tribunal is required to address in these proceedings. [Emphasis in original.] [34] Justice Mainville concluded: [51] The two principal legal issues raised in this appeal concern questions of fundamental rights and principles in a human rightscontext. These are not issues about questions of proof or mere procedure, or about the remedial authority of a human rights tribunal orcommission.

As such, for the sake of consistency between the various human rights statutes in force across the country, the meaning andscope of family status and the legal test to find prima facie discrimination on that prohibited ground are issues of central importance tothe legal system, and beyond the Tribunal's expertise, which attracts a standard of correctness on judicial review: Dunsmuir at para. 60. [35] To similar effect: Canadian National Railway Co. v. Seeley, 2014 FCA 111 [ 79 C.H.R.R. D/339], para. 36; Stewart v. Elk ValleyCoal Corp., 2015 ABCA 225 [ 81 C.H.R.R.

D/367], paras. 47, 50 and 55 (application for leave filed with S.C.C.). [36] Before Dunsmuir, the Supreme Court of Canada had held that human rights tribunals may receive less judicial deference than someother tribunals, such as labour boards, on general issues of law. The rationale was that "in order for the

interpretation of human rightslegislation to be purposive, differences in wording among various provinces should not be permitted to frustrate the similar purposeunderlying these provisions". Gould v. Yukon Order of Pioneers, (SCC), [1996] 1 S.C.R. 571 [ 25 C.H.R.R. D/87],paras. 47-48. University of British Columbia v. Berg, (SCC), [1993] 2 S.C.R. 353 [ 18 C.H.R.R.

D/310], paras. 26, 32. [37] In Dunsmuir, Justices Bastarache and LeBel said: [60] As mentioned earlier, courts must also continue to substitute their own view of the correct answer where the question at issue isone of general law "that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area ofexpertise" (Toronto (City) v. C.U.P.E., 2003 SCC 63 , [2003] 3 S.C.R. 77, at para. 62, per LeBel, J.). Because of their impact onthe administration of justice as a whole, such questions require uniform and consistent answers … [38] In Saskatchewan (Human Rights Comm.) v.

Whatcott, 2013 SCC 11 , [2013] 1 S.C.R. 467 [ 76 C.H.R.R. D/1], JusticeRothstein for the Court (para. 61) said that correctness governed constitutional principles that were before the human rights tribunalunder The Saskatchewan Human Rights Code [S.S. 1979, c. S-24.1]. Justice Rothstein (paras. 30, 55-59) prescribed the definition of"hatred" to be applied by the tribunal under the Code. In doing so, he adopted, with some modifications, the earlier definition prescribedin a Charter ruling by Canada (Human Rights Comm.) v. Taylor, (SCC), [1990] 3 S.C.R. 892 [ 13 C.H.R.R.

D/435].Justice Rothstein (paras. 178-81, 186,) accepted that the tribunal was to apply the judicially prescribed principles [that defined "hatred"in the Code, but (para. 168) held that "otherwise" the issues were not of central importance to the legal system, meaning thatreasonableness would govern the tribunal's application of the principles. [39] In Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 , [2015] 2 S.C.R. 3 [ 83 C.H.R.R.

D/291], at paras. 47-49, Justice Gascon for the majority held that correctness applied to the Quebec Human Rights Tribunal's assessment of the scope ofreligious freedom, as a question of general legal importance. But he noted that correctness on one issue is not all-subsuming, andreasonableness would govern other points. To similar effect, and cited by Justice Gascon: McLean v. British Columbia (SecuritiesComm.), 2013 SCC 67 , [2013] 3 S.C.R. 895, para. 27 and Canada (Human Rights Comm.) and Mowat v. Canada (AttorneyGeneral), 2011 SCC 53 , [2011] 3 S.C.R. 471 [ 73 C.H.R.R. D/30], at paras. 21-24.

Similarly, to promote consistency, when thesame general legal issues that arise before a tribunal may also be expected to arise in a court through an alternative route, correctness

may be appropriate: Rogers Communications Inc. v. S.O.C.A.N., 2012 SCC 35 , [2012] 2 S.C.R. 283, paras. 13-15, perRothstein, J. for the majority. [40] Based on these authorities, my views on the standard of review for questions of law in Mr. Adekayode's appeal are:

(1) Correctness governs the

interpretation of constitutional principles under s. 15 of the Charter and the transference or usage of s. 15principles and authorities to construe the same terms in the Human Rights Act. In this appeal, much argument focused on (1) whether themeaning of "discrimination" under s. 15(1) of the Charter should drive the

interpretation of "discriminate" in s. 5(1) of the Human RightsAct, and (2) whether the meaning of "law, program or activity", "has as its object the amelioration" and "disadvantaged" under s. 15(2) ofthe Charter should determine the meaning of the identical words in s. 6(

i) of the Human Rights Code. The response to these argumentsincludes a discussion of constitutional or quasi-constitutional issues of central importance to the legal system for which the Board has nogreater expertise than does this Court.

(2) Other aspects of the Board's

interpretation and application of its home legislation attract reasonableness. [41] As I will explain later (para. 158), this appeal does not turn on the standard of review. I would reach the same conclusion using thereasonableness standard throughout. [42] This appeal also challenges the Board's findings of fact. Where, as here, the statutory right of appeal is limited to an issue of law,the Court may review a finding of fact only if there is no supporting evidence from which the finding may be made or the inferencereasonably drawn.

That is because a finding based on no evidence is arbitrary, and a tribunal errs in law by acting arbitrarily in anyaspect of its process, including fact-finding. The standard of review would be reasonableness (Dr. Q. v. College of Physicians andSurgeons of British Columbia, 2003 SCC 19 , [2003] 1 S.C.R. 226, paras. 34, 38-39, 42), though it is difficult to conceive howan arbitrary finding could be reasonable.

Alternatively, if there is some evidence, then the tribunal's factual findings and inferences arenot appealable under the statute, nor are assessments of credibility, meaning the standard of review is not an issue. Fashoranti v. Collegeof Physicians and Surgeons of Nova Scotia, 2015 NSCA 25, paras. 20-21, leave denied Sept. 3, 2015 (S.C.C.); Fadelle v. Nova ScotiaCollege of Pharmacists, 2013 NSCA 26, paras. 12-17, and authorities there cited. See also Nova Scotia v. Play it Again Sports Ltd., para.50. 4.

FIRST ISSUE — DISCRIMINATION UNDER SECTION 5(1)(R) [43] I will track the Board's reasons for ruling that the collective agreement discriminated against Mr. Adekayode based on familystatus. The Board (para. 8) began by citing the Human Rights Act's definition of "discrimination".

Section 4 says: Meaning of discrimination 4. For the purpose of this Act, a person discriminates where the person makes a distinction, whether intentional or not, based on acharacteristic, or perceived characteristic, referred to in clauses (

h) to (

v) of subsection (1) of

Section 5 that has the effect of imposingburdens, obligations or disadvantages on an individual or a class of individuals not imposed upon others or which withholds or limitsaccess to opportunities, benefits and advantages available to other individuals or classes of individuals in society.

The Board noted (para. 9) that s. 4 requires both a distinction on a listed ground and a deleterious effect. [44] In a passage that is pivotal to Local 268's grounds of appeal, the Board continued: [10] There is no legislative requirement in Nova Scotia, nor in any other jurisdiction in Canada, requiring a human rights claimant toestablish some historical disadvantage or stereotyping as a precondition to a legitimate claim of discrimination.

While an historicaldisadvantage or stereotyping may inform our current understanding about whether there is an effect from the making of a distinction, orthe significance of such an effect, proof of an historical disadvantage is not a pre-condition to a successful claim under the Nova ScotiaAct. [11] It was suggested in the course of these proceedings that the s. 15 Canadian Charter of Rights and Freedoms jurisprudence hasconstitutionalized an element of historical disadvantage, and that human rights legislation should be interpreted in a way that isconsistent with that constitutional

interpretation. This was a prelude to suggesting that biological parents such as Mr. Adekayode have notsuffered an identifiable historical disadvantage, and therefore could not be discriminated against by a financial benefit payable toadoptive parents. Reference was made to the decision in Ontario Secondary School Teachers' Federation v. Upper Canada DistrictSchool Board (2005), (ON SCDC), 203 O.A.C. 98 (Div.Ct.). [12] I disagree with the premise of that argument.

While the Charter's s. 15 may be employed to not only redress discriminatorybehaviour, it can also be employed to invalidate legislation, which was the request made in Withler [Withler v. Canada (AttorneyGeneral), 2011 SCC 12 , [2011] 1 S.C.R. 396], supra … There are many reasons for an enhanced level of contextual scrutinywhere the constitutionality of legislation is in issue rather than the evaluation of the effect of a private agreement of limited application… 14] Our provincial Human Rights Act has an important but less encompassing mandate than s. 15 of the Charter.

The provincial Actonly authorizes us to evaluate and, where necessary, to redress discriminatory behaviours of individuals, groups, and agencies. Unlike theOntario Human Rights Code, and the Charter itself, the Nova Scotia Act specifically defines what discrimination is for the purposes ofour Act. Our Act does not explicitly mandate us to look for and find historical disadvantage or even stereotype. What our Act does require(and there is nothing new about this) is that the effect of differential treatment engage a component or aspect of the complainant's humandignity.

That is consistent, in my view, with the kind of analysis described and approved of in both Law v. Canada [Law v. Canada(Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497] and the Ontario Secondary Schools Teachers'Federation case, but still respectful of the difference in our legislation. [Emphasis in original.] [45] Subsections 5(1)(

d) and (

r) of Nova Scotia's Human Rights Act say:

Prohibition of discrimination 5(1) No person shall in respect of … (

b) employment; … discriminate against an individual or class of individuals on account of … (

r) family status; …

Section 3(

h) defines "family status":

Interpretation 3. In this Act, … (h) "family status" means the status of being in a parent-child relationship; … [ 46 ] The Board (para. 17) held that "family status" in s. 3(h) "includes the way the parent and child came to be in their relationship: whether by birth, adoption placement …" According to the Board: [22] Therefore, it is my view that the Nova Scotia Human Rights Act prohibits discrimination (distinctions that have the effect of creating burdens or denying access to benefits) on the basis of a person's parent/child relationships.

That prohibition includes a prohibition on distinctions based on how the parent/child relationship was created, as well as distinctions based on the care obligations created by a person's parent/child relationships. [ 47 ] From this, the Board concluded that

article 29.02.8 of the collective agreement made a distinction based on family status with the effect of denying Mr. Adekayode a benefit given to adoptive parents: [26] The collective agreement did not provide for any pay or top-up to biological or "guardianship" parents during any parental leave. An employee would be restricted during that time to anything that he or she might be entitled to as employment insurance.

However, the collective agreement made different provision for adoptive parents … [27] A plain reading of these provisions demonstrates that there is a distinction being made between adoptive parents and other new parents. The adoptive parents get an advantage (top-up of employment insurance benefits for 10 weeks after 2 waiting weeks at 75 percent pay) that biological parents do not … [ 48 ] The Board found that this distinction implicated Mr.

Adekayode's human dignity: [39] What the evidence demonstrated to me was that the lack of access to employment insurance top-up benefits materially affected Ray Adekayode's choices about how to manage the integration of a new infant into his family. The lack of access to employment insurance top-up benefits materially affected his participation in the initial care relationship and care responsibilities involving his son … The effect of the lack of access to advantages available to other individuals here affects a recognized aspect of Mr.

Adekayode's legitimate sense of human dignity: his ability to create and manage the integration of a new human being into his family. [ 49 ] These three findings — distinction on a listed ground, deleterious effect and engagement of human dignity — satisfied the Board's

interpretation of the requirements for prima facie discrimination under s. 4 of the Human Rights Act . The Board held that the collective agreement discriminated based on family status contrary to s. 5(1) (r). [ 50 ] Local 268 and HRM challenge the Board's reasons with the following submissions: (

a) The meaning of discrimination in the Human Rights Act is driven by the meaning of discrimination under s. 15(1) of the Charter of Rights . (

b) The Charter authorities require the claimant to prove arbitrary treatment, historical prejudice or stereotyping as an element of discrimination. Birth parents have not suffered those societal afflictions. (

c) The principle of substantive equality, as defined in the Charter authorities, requires that the claimant prove "something more" than just the conditions of discrimination stated by s. 4 of the Human Rights Act . That additional condition, whatever its composition, does not exist for birth parents. (

d) In any case, the Board's approach — to inquire whether the differential engaged the complainant's human dignity — was "misdirected". (

e) The facts upon which the Board relied were "entirely unsupported by any evidence". [ 51 ] My views on these points are:

(

a) Does the Charter Case Law Govern? [52] Local 268 says that the case law under s. 15 of the Charter determines the meaning of "discrimination" in the Human Rights Act,and those principles require Mr. Adekayode to prove historical prejudice or stereotyping. Local 268's factum puts it this way: 82.

Accordingly, the appellant submits that it was an error of law for the Chair to refuse to apply Charter jurisprudence in interpretingthe meaning of discrimination under the Act. … 86. ;The appellant respectfully submits that the Chair's conclusions about the test for prima facie discrimination constitute an error oflaw. To establish prima facie discrimination, the Chair was required to make a finding that the distinction applied to Mr. Adekayode wasarbitrary, in that it perpetuated prejudice or stereotyping. … 97.

Instead of focusing on the perpetuation of prejudice or stereotyping, the Chair held that in order to establish prima faciediscrimination, Mr. Adekayode was only required to demonstrate that "the effect of differential treatment engage[d] a component oraspect of [his] human dignity" … [53] Though Local 268's factum quotes s. 4 in an appendix, the body of its submission does not discuss it. The argument leapfrogs theAct's definition to reach the Charter cases. [54] I respectfully disagree with that approach. [55] The Human Rights Act defines "discrimination".

Section 4 is prefaced by the words "Meaning of discrimination".

Section 4 openswith "For the purpose of this Act, a person discriminates where …"

Section 4's elements are not just examples that are included in anunscripted broader definition. The Legislature designated s. 4 as the point of departure for any

interpretation of "discrimination" in ahuman rights complaint under the Human Rights Act. [56] At the appeal hearing, counsel for HRM, who supported Local 268's submission, was asked what hypothetical statutory wordingcould enable the Legislature, if it wished, to enact conditions for "discrimination" that differ from the conditions under s. 15 of theCharter. He replied that the Legislature simply could not do so in any statute titled the "Human Rights Act". [57] I do not accept that proposition. [58] Mr. Adekayode did not bring a s. 15 challenge. He filed a statutory complaint under the Human Rights Act.

Neither Local 268 norHRM have challenged the constitutional validity of any provision in the Act. In Vriend v. Alberta, (SCC), [1998] 1S.C.R. 493 [ 31 C.H.R.R. D/1], para. 106, Justices Cory and Iacobucci for the majority said: It is true that if the appellants' position is accepted, the result might be that the omission of one of the enumerated or analogous groundsfrom key provisions in comprehensive human rights legislation would always be vulnerable to constitutional challenge.

It is notnecessary to deal with the question since it is simply not true that human rights legislation will be forced to "mirror" the Charter in allcases. [59] Of course, human rights legislation is quasi-constitutional, and its precepts should, within the principles of statutory construction,conform to Charter values: University of British Columbia v. Berg, supra, para. 26; Carrigan v. Nova Scotia (Dept. of CommunityServices), 1997 NSCA 19 [ 28 C.H.R.R. D/281], para. 6. [60] But Mr.

Adekayode's complaint initiated a statutory exercise, meaning "the object is to seek the intent of [the Legislature] byreading the words of the provision in their entire context and according to their grammatical and ordinary sense, harmoniously with thescheme and object of the Act and the intention of [the Legislature]": Canada (Human Rights Comm.) and Mowat v. Canada (AttorneyGeneral), supa, para. 33. The starting point is the definition of discrimination in s. 4 of the Act. [61] The Board interpreted s. 4 to require a distinction on a basis listed in s. 5(1), namely family status, that affected Mr.

Adekayode byimposing a burden, or denying a benefit given to others. That is what ss. 4 and 5(1) say. The Board's view was consistent with JusticeAbella's

summary, for the Court, of the equivalent provisions in British Columbia's Human Rights Code [R.S.B.C. 1996, c. 210] inMoore v. British Columbia (Education), 2012 SCC 61 , [2012] 3 S.C.R. 360 [ 75 C.H.R.R. D/369]: [33] As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have acharacteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and thatthe protected characteristic was a factor in the adverse impact.

Once a prima facie case has been established, the burden shifts to therespondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannotbe justified, discrimination will be found to occur. (

b) Is historical prejudice or stereotyping required? [62] Local 268's submission has another problem. It assumes that, to establish discrimination under s. 15(1), a Charter plaintiff mustprove historical prejudice or stereotyping. Local 268 then says this requirement infuses the Human Rights Act. [63] Some years ago, historical prejudice or stereotyping was required by s. 15(1): e.g. R. v. Kapp, 2008 SCC 41 , [2008] 2S.C.R. 483, para. 17, and Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9 , [2009] 1 S.C.R. 222, para. 202.

But toassess Local 268's assumption today, one must examine the Supreme Court of Canada's recent rulings under s. 15(1). [64] In Quebec (Attorney General) v. A., 2013 SCC 5 , [2013] 1 S.C.R. 61, an authority missing from Local 268's factum,

Justice Abella, speaking for five justices on the meaning of discrimination in s. 15(1) of the Charter, said: [324] Kapp, and later Withler v. Canada (Attorney General), 2011 SCC 12 , [2011] 1 S.C.R. 396, restated these principles asfollows:

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create adisadvantage by perpetuating prejudice or stereotyping? (Kapp, at para. 17; Withler, at para. 30). As the Court said in Withler: The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historicalfactors concerning the group. [para. 39] [325] In referencing prejudice and stereotyping in the second step of the Kapp reformulation of the Andrews test, the Court was notpurporting to create a new s. 15 test.

Withler is clear that "[a]t the end of the day there is only one question: Does the challenged lawviolate the norm of substantive equality in s. 15(1) of the Charter?" (para. 2 [emphasis in Quebec v. A.]). Prejudice and stereotyping aretwo of the indicia that may help answer that question; they are not discrete elements of the test which the claimant is obliged todemonstrate, as Professor Sophia Moreau explains: Such a narrow

interpretation will likely have the unfortunate effect of blinding us to other ways in which individuals and groups, thathave suffered serious and long-standing disadvantages, can be discriminated against. This would include cases, for instance, that do notinvolve either overt prejudice or false stereotyping, but do involve oppression or unfair dominance of one group by another, or involve adenial to one group of goods that seem basic or necessary for full participation in Canadian society. ("R. v. Kapp: New Directions forSection 15" (2008-2009) 40 Ottawa L.

Rev. 283, at p. 292.) [326] Prejudice is the holding of pejorative attitudes based on strongly held views about the appropriate capacities or limits ofindividuals or the groups of which they are a member. Stereotyping, like prejudice, is a disadvantaging attitude, but one that attributescharacteristics to members of a group regardless of their actual capacities.

Attitudes of prejudice and stereotyping can undoubtedly leadto discriminatory conduct, and discriminatory conduct in turn can reinforce these negative attitudes, since "the very exclusion of thedisadvantaged group … fosters the belief, both within and outside the group, that the exclusion is the result of 'natural' forces, forexample, that women 'just can't do the job'" (Action Travail, at p. 1139 [Canadian National Railway Co. v. Canada (Human RightsComm.) and Action travail des femmes, (SCC), [1987] 1 S.C.R. 1114, 8 C.H.R.R.

D/4210 at para. 33249]) … [327] We must be careful not to treat Kapp and Withler as establishing an additional requirement on s. 15 claimants to prove that adistinction will perpetuate prejudicial or stereotypical attitudes towards them. Such an approach improperly focuses attention on whethera discriminatory attitude [italics in Quebec v. A.] exists, not a discriminatory impact, contrary to Andrews [Andrews v. Law Society ofBritish Columbia, (SCC), [1989] 1 S.C.R. 143 [ 10 C.H.R.R.

D/5719]], Kapp and Withler … [329] … prejudice and stereotyping are neither separate elements of the Andrews test, nor categories into which a claim fordiscrimination must fit. A claimant need not prove that a law promotes negative attitudes, [italics in Quebec v. A.] a largelyunquantifiable burden. [Emphasis added] [65] In Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 , [2015] 2 S.C.R. 548, paras. 16-22, Justice Abella for the Courtapplied the formulation from her reasons in Quebec v.

A. to govern the meaning of discrimination in s. 15(1) of the Charter, and said: [21] To establish a prima facie violation of s. 15(1), the claimant must therefore demonstrate that the law at issue has adisproportionate effect on the claimant based on his or her membership in an enumerated or analogous group. At the second stage of theanalysis, the specific evidence required will vary depending on the context of the claim, but "evidence that goes to establishing aclaimant's historical position of disadvantage" will be relevant: Whitler, at para. 38; Quebec v.

A, at para. 327. [Emphasis added] [66] Clearly historical prejudice and stereotyping are relevant to whether there is discrimination under s. 15. But those criteria are nolonger legally essential to an infringement of s. 15. Rather, the "disproportionate effect" on the plaintiff may be established by otherevidence that "will vary depending on the context of the claim". The "one question" under s. 15(1) is — "Does the challenged law violatethe norm of substantive equality in s. 15(1) of the Charter?" [67] In Mr.

Adekayode's case, the Board's reasons say: [10] There is no legislative requirement in Nova Scotia, nor in any other jurisdiction in Canada, requiring a human rights claimant toestablish some historical disadvantage or stereotyping as a precondition to a legitimate claim of discrimination.

While an historicaldisadvantage or stereotyping may inform our current understanding about whether there is an effect from the making of a distinction, orthe significance of such an effect, proof of an historical disadvantage is not a pre-condition to a successful claim under the Nova ScotiaAct. [Emphasis in original.] [68] The Board's passage correctly interprets Nova Scotia's Human Rights Act. Though the Board was not attempting to recite Charterprinciples, the passage also fairly encapsulates the place of historical disadvantage and stereotyping in s. 15(1) discrimination sinceQuebec v.

A. [69] To assess the "disproportionate effect" under Nova Scotia's Human Rights Act, the Board added a qualitative factor — that theadverse differential impact should implicate the claimant's human dignity. I will return to that point later (paras. 79-97). (

c) Does substantive equality require "something more"? [70] HRM's submission picks up the argument with Quebec v. A.'s "one question" under s. 15(1) — Does the challenged law [or, in thiscase, collective agreement] violate the norm of substantive equality? HRM says the answer is no, and the Board erred by failing todismiss Mr. Adekayode's complaint on that basis. [71] The presentations in this Court freely dispensed the phrase "substantive equality", but offered little to define it. HRM's counsel saidit means that discrimination requires "something more" than just a violation of the conditions of "discrimination" defined by s. 4 of the

Human Rights Act. The only concrete examples of additional criteria cited by Local 268 or HRM were arbitrary conduct, meaninghistorical prejudice or stereotyping. [72] HRM's factum summarizes its point: 20. Substantive equality, as opposed to formal equality, is an essential feature of all human rights legislation whether it be the Charter,the Canadian Human Rights Act, or the various provincial human rights statutes. Formal equality requires the equal treatment ofindividuals and groups irrespective of the impact on the individuals or groups concerned.

Substantive equality recognizes that everydifference in treatment of individuals will not necessarily result in inequality and like treatment of individuals may result in substantialinequality. As such, substantive equality requires a contextual analysis of the impact of the law or conduct involved on the individual orgroup concerned. … 30.

It is submitted that the Board erred in concluding that discrimination in the legislation did not require more than a distinction basedon an enumerated ground which had a negative effect; that is, did not require that the disadvantage be arbitrary or perpetuate prejudice orstereotyping. [73] To address this submission, it helps to first attribute some meaning and lineage to the phrase "substantive equality". [74] Substantive equality aims to capture the discriminatory effects of a facially neutral law or a formally well-meaning program. It isabout substance over form. Peter W.

Hogg, Constitutional Law of Canada, 5th ed. (Scarborough, Ont.: Thomson Carswell, 2007), loose-leaf, supplemented, vol. 2, explains: 55.6(

e) Formal and substantive equality The most common criticism of the similarly-situated definition of equality (and of the Aristotelian definition of equality) is not that itprovides too little guidance to a reviewing court (or is "empty"), but that it can mask discrimination that occurs indirectly rather thandirectly. An apparently neutral law may have a disproportionate effect on a particular group, which, as a consequence, is being treatedunequally … A theory that only covers the direct case is often described as "formal equality" … But, as Wintemute acknowledges,formal equality is not enough.

It is also necessary to guarantee "substantive equality", meaning by that term a theory of equality that willcapture indirect as well as direct discrimination … 55.11(

a) Substantive equality A law may be discriminatory on its face. A law that expressly excluded women from admission to the police force would bediscriminatory on its face. We have already noticed this is an example of "direct" discrimination. And we have also noticed that the term"formal equality" is normally used to indicate a theory of equality that covers only direct discrimination.

Section 15 includes directdiscrimination (obviously), and this leads to the invalidity of a law that is discriminatory on its face. A law may be discriminatory in its effect. A law that imposed height or weight qualifications for admission to the police force would bediscriminatory in its effect if the effect of the law (whether intended or not) was to disqualify a disproportionate number of women. Wehave already noticed that this is an example of "indirect" discrimination … The term "substantive equality" is normally used to indicate atheory of equality that covers indirect as well as direct discrimination.

Because s. 15 includes substantive equality, it leads to invalidity ofa law that is discriminatory in its effect. Finally, a law may be discriminatory in its application. A law that prescribed no discriminatory qualifications for admission to the policeforce would be discriminatory in its application if police recruitment procedures led to the rejection of a disproportionate number offemale applicants. This is another kind of indirect discrimination, and it is also a breach of substantive equality and of s. 15.

Where a lawis discriminatory only in its application, s. 15 will not lead to the invalidity of the law itself.

Section 15 will deny validity to pastapplications of the law, and will require (in the police example) that gender-neutral procedures be established for its future administration… … Substantive equality allows a court to drill beneath the surface of the facially neutral law and identify adverse effects on a class ofpersons distinguished by a listed or analogous personal characteristic … [75] Substantive equality has long been the basis of human rights analysis, and was adopted into the Charter at the outset of s. 15jurisprudence. In Andrews v.

Law Society of British Columbia, supra, paras. 37-38 [C.H.R.R. paras. 41760-41761], Justice McIntyreincorporated the concept from human rights authorities. [76] In the several years after Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497,a mechanical process of mirror comparison constrained the application of substantive equality under s. 15. Examples are Hodge v.Canada (Minister of Human Resources Development), 2004 SCC 65 , [2004] 3 S.C.R. 357 and Auton (Guardian ad litem of) v.British Columbia (Attorney General), 2004 SCC 78 , [2004] 3 S.C.R. 657. In Withler v.

Canada (Attorney General), 2011 SCC12 , [2011] 1 S.C.R. 396, the reasons of the Chief Justice and Justice Abella, and in Quebec v. A. (2013), those of JusticeAbella, loosened the vise of mirror comparison to re-animate substantive equality analysis under s. 15(1). See the discussion of Withlerand Quebec v. A. in Muggah v. Nova Scotia (Workers' Compensation Appeals Tribunal), 2015 NSCA 63, paras. 39-40, 43-45, 51-60.

Thepoint was not to add "something more", as HRM submits, to the list of elements that a plaintiff must prove under s. 15(1). [77] Seen through the lens of substantive equality, the principle is as stated in Quebec v. A: historical prejudice and stereotyping arerelevant, but not essential, to determine whether the distinction has the effect of exacerbating or perpetuating disadvantage. That was theBoard's approach to Mr. Adekayode's complaint (decision, para. 10). [78] The Board was not obligated to dismiss Mr. Adekayode's complaint just because birth parents had not suffered historical prejudice

and stereotyping. (

d) Was the Board's reference to human dignity misdirected? [ 79 ] In Quebec v. A. , para. 325, Justice Abella approved a passage from an

article by Professor Sophia Moreau. Professor Moreau pointed out that a focus on prejudice or stereotyping would wrongly omit consideration of other discriminatory activity, such as "unfair" group dominance or a denial of resources that are "basic or necessary for full participation in Canadian society". HRM submits that the Supreme Court's endorsement of this passage embodies a qualitative criterion for discrimination beyond mere differential treatment having an adverse impact. [ 80 ] I reiterate this is a human rights complaint, not a Charter challenge. The starting point is the statute. [ 81 ] In Mr.

Adekayode's case, the Board interpreted "discrimination" in the Human Rights Act to be "consistent" with the Charter 's values while being "respectful of the difference in our legislation". The Board (paras. 12 and 14) achieved that accommodation by saying that discrimination under the Human Rights Act must "engage a component or aspect of the complainant's human dignity". [ 82 ] Did the Board's approach properly blend Charter values into the

interpretation of the Human Rights Act ? The answer should account for the distinctions between the Human Rights Act and the Charter . [ 83 ] In Andrews , paras. 38-39 [C.H.R.R. paras. 41761-41762], Justice McIntyre pointed out significant differences between the reach of s. 15 and human rights statutes. [ 84 ] First, s. 15 may invalidate legislation. This means a court that hears the challenge scans the full legal, social and political context of the impugned statute. A human rights inquiry has a narrower field of vision. This case turns on Mr. Adekayode's domestic circumstances.

The pursuit of substantive equality in the human rights context follows a more attenuated inquiry than in a constitutional challenge to legislation. [ 85 ] Second, the Human Rights Act has its own legislated structure comprising prescribed purposes that include human "dignity", a statutory definition of "discrimination", listed grounds that expressly include "family status", a prima facie case, a number of "exceptions" that include ameliorative activity on the listed ground of "family status", burdens of proof that accompany these features, but no overarching "demonstrable justification".

These elements are not fully congruent with the Charter 's structure. Professor Wayne MacKay makes the point: Introduction: From Enrichment to Contamination Like many marriages, the equality provisions of the Charter of Rights and Freedoms and Canada's human rights codes began with the hope and expectation that the experiences of each one would enrich the other … Unfortunately as with too many marriages, the union of Charter equality and human rights codes has not always been a positive one and the Charter has become more of a burden than a benefit to its statutory partner.

Indeed, many now argue that the importation of Charter equality concepts into the

interpretation of human rights codes has limited the goal of substantive equality and reduced access to justice for front line victims of discrimination. As Professor Leslie Reaume rightly argues, the nature of the Charter should be a source of enrichment for human rights codes and not a source of contamination. [B]orrowing from the Charter context to the statutory context is appropriate so long as the exercise enriches the substantive equality analysis, is consistent with the limits of statutory

interpretation, and advances the purpose and quasi-constitutional status of the enabling statute. The objection raised in this paper is not to the interplay but to the manner in which Charter principles, specifically those articulated in the decision in the Charter, are imported and then allowed to dominate an analysis which should be driven first by the principles of statutory

interpretation, and second by the jurisprudence which has developed specifically in the regulatory context. [Professor A. Wayne MacKay, "The Marriage of Human Rights Codes and

Section 15 of the Charter in Pursuit of Equality: A Case for Greater Separation in both Theory and Practice" (2013) 64 U.N.B.L.J. 54, page 55] [ 86 ] In Ontario (Disability Support Program) v. Tranchemontagne , 2010 ONCA 593 [ 71 C.H.R.R. D/1], paras. 82-86, the Ontario Court of Appeal held that Ontario's Human Rights Code [R.S.O. 1990, c. H.19] should incorporate the meaning of discrimination from the case law under s. 15, which at that time required the plaintiff to prove historical prejudice or stereotyping. In this appeal, Local 268 and HRM rely on Tranchemontagne . Professor MacKay's

article comments on Tranchemontagne : The structure of the OHRC [ Ontario's Human Rights Code ] makes clear that the legislature has taken great pains to balance the right to equal treatment and the legitimate interests of respondents. If its complex structure achieves that balance fairly through the interplay of factual prima facie case and variously tailored exemptions, there is no reason to tamper with it. The significance of the spheres included in the codes, together with creating exceptions wherever fairness requires, seals the argument that narrowing the scope of discrimination by increasing the threshold at the prima facie stage is an unworthy

interpretation of the codes. It is precisely the significance of the spheres in this balance that the Court of Appeal seems not to appreciate in Tranchemontagne . [U.N.B.L.J., pages 59-60] In Tranchemontagne , the Court of Appeal for Ontario furthered the conflation of HR jurisprudence and the Charter by deciding that discrimination should have the same meaning in the Ontario Human Rights Code as the Charter. In particular, in both realms a person claiming discrimination must now demonstrate a distinction based on a prohibited ground that creates a disadvantage by perpetuating prejudice or stereotyping.

The apparent appeal of uniformity can be misleading in this context. Rather than improve the law, uniformity here smooths away important distinctions, with significant implications for those who seek meaningful enforcement of their human rights. …

Making stereotyping effectively part of the definition of discrimination under

section 15 places the burden on the claimant to prove thatthe legislation does indulge in stereotyping, whereas under the conventional approach to human rights adjudication under the codes, theburden falls on the respondents to prove that their generalizations are accurate. [U.N.B.L.J., pages 74-75] [87] Tranchemontagne and Professor MacKay's

article preceded Quebec v. A., which held that historical prejudice and stereotyping,though relevant, are not essential to discrimination under s. 15(1). [88] In my view, given that the Human Rights Act expressly defines "discrimination", the meaning of discrimination under the Act neednot stride in lockstep with every modulation in the term's constitutional usage under s. 15(1). Rather, human rights "discrimination"should remain true to the statutory definition while being consistent with the Charter's rooted values. [89] The Board folded the Charter's values into the

interpretation of the Human Rights Act by saying the differential treatment mustengage Mr. Adekayode's "human dignity". [90] Local 268's factum (para. 98) faults the Board for invoking the "misdirected concept" of human dignity. [91] Nova Scotia's Human Rights Act identifies human dignity as the Legislature's first objective: 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 … [92] Local 268 neither addresses s. 2(

a) nor explains how the Board misdirected itself by drawing guidance from the statute's primarypurpose. [93] Human dignity was an underlying Charter value from the outset: R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, para.64. It became a discrete legal criterion of discrimination under s. 15(1) with the Supreme Court's decision in Law v. Canada, (1999),para. 88. [94] In R. v.

Kapp, 2008 SCC 41 , [2008] 2 S.C.R. 483, paras. 23-24, the Chief Justice and Justice Abella observed that adecade of field experience had shown that, as a free-standing criterion, human dignity was vague, confusing and its use had theunintended effect of imposing an additional burden on equality claimants. But the Chief Justice and Justice Abella reiterated the place ofhuman dignity as an underlying Charter value: [21] … There can be no doubt that human dignity is an essential value underlying the s. 15 equality guarantee.

In fact, the protectionof all of the rights guaranteed by the Charter has as its lodestar the promotion of human dignity. [95] In this case, the Board did not apply the factor as a confusing hurdle to substantive equality, the concern voiced in Kapp. Withhuman dignity as a broad purposive guide, the Board undertook a straightforward analysis of substantive equality in Mr. Adekayode'shousehold. [96] The Board (para. 39) focused on Mr. Adekayode's "ability to create and manage the integration of a new human being into hisfamily".

Whether this vital family dynamic is termed an aspect of human dignity or as "basic … for full participation in Canadiansociety" (Professor Moreau's phrase, cited by HRM), is etymology that doesn't change this outcome. [97] The Board's reference to human dignity, in Mr. Adekayode's case, was not misdirected. (

e) Was there supporting evidence? [98] Local 268's factum (para. 98) says that the Board's findings about Mr.

Adekayode's choices and home circumstances were "entirelyunsupported by any evidence". [99] As noted earlier, this appeal is limited to issues of law, and a finding of fact is not appealable unless it was made arbitrarily,meaning it was not supported by any evidence. [100] The Board found (para. 39) that the impugned provision "materially affected Ray Adekayode's choices about how to manage theintegration of a new infant into his family" and "his participation in the initial care relationship and care responsibilities involving hisson".

Consequently "the lack of access to advantages available to other individuals here affects a recognized aspect of Mr. Adekayode'slegitimate sense of human dignity". [101] Mr. Adekayode's transcript of testimony to the Board, and that of his wife Colleen, are in the record. Not every finding must betransposed from direct evidence. The Board was entitled to draw reasonable inferences. The Board's findings and inferences are wellsupported by the testimony of Mr. and Mrs. Adekayode. (

f) Summary — s. 5(1)(r) [102] I would dismiss the grounds of appeal that challenge the Board's finding of prima facie discrimination under s. 5(1)(

r) of theHuman Rights Act. 5. SECOND ISSUE — AMELIORATIVE PROGRAM OR ACTIVITY UNDER

SECTION 6(I) [103]

Section 6(

i) of the Human Rights Act says:

Exceptions 6. Subsection (1) of

Section 5 does not apply … (

i) to preclude a law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or classes of individuals including those who are disadvantaged because of a characteristic referred to in clauses (

h) to (

v) of subsection (1) of

Section 5. [ 104 ] I will address the Board's conclusions on the elements of s. 6 (i). (

a) Are adoptive parents disadvantaged? [ 105 ] At the Board's hearing, Local 268 and HRM presented evidence that adopted children have special needs, and adoptive parents have particular challenges to integrate and bond with their new arrival. Local 268 and HRM submitted that adoptive parents were disadvantaged in this respect, the top-up for adoptive parents in

article 29.02.8 had an object of ameliorating the disadvantage, and s. 6 (

i) excepted

article 29.02.8 from s. 5(1) (

r) of the Human Rights Act . [ 106 ] This evidence comprised the expert opinions by Dr. Nina Woulff and Dr. Kristen McLeod and the factual testimony by Captain Paul Boyle. Mr. Adekayode and the Commission adduced no evidence on the circumstances of adoptive parents.

The un-contradicted evidence before the Board was that adoptive parents face significant challenges not encountered by birth parents, particularly: · A heavy majority of adopted children have special needs, not so for birth children. · Adoptive families often struggle with bonding that is natural to the birth relationship. · Adoptive parents are particularly stressed during the six-month probationary period after the placement, when the adoption is at risk. · The post-placement infrastructure for adoptive parents is less supportive than for natural parents. [ 107 ] With apologies to the reader for the block quotations, it is worth supplementing this sterile

summary with extracts from the sometimes poignant evidence. The evidence will feature in my discussion of the "rational contribution" test later. [ 108 ] Dr. Woulff has a Ph.D. in clinical psychology and over 40 years' experience. She was qualified to testify on clinical and family therapy and the evaluation of biological and adoptive parents. She filed a report, testified and was cross-examined. Her report included: In Nova Scotia the majority of adoptions are done through agencies and a smaller percentage is done through international adoption. Of these adopted children, very few are under one year of age.

Healthy infant adoption has become a rarity. The majority of children placed through child welfare agencies have at least one (usually more than one) special need. … Evidence clearly supports that children adopted from agencies have a significantly greater number of special needs than children born to birth families. … Adoptive parents go through experiences that are quite different from those of birth parents. Adoptive parents are more likely than birth families to have experienced and struggled with infertility which is financially, physically and emotionally draining.

They are required to navigate the bureaucratic system of adoption, deal with negative social stigma of adoption as "second best" and go through a home study. Even after being approved as prospective adoptive parents they wait with an uncertain timeline, as to when they may become parents. … Adoptions are not finalized until the child has been with the adoptive couple or single parent for at least 6 months. As mentioned above, most couples feel anxious during this period and the expectation by social services is that both parents are held to a very high standard of parenting ability.

Both adoptive mothers and fathers often experience this anxiety. The post-placement follow-up meetings evaluate the coping of both the adoptive mother and the adoptive father. Birth parents do not usually worry that their child will be removed from their custody if they are less than perfect parents. Although caring for a newborn birth child can be physically tiresome (especially if the child has colic or difficulty sleeping), such difficulties can often be managed with medication and documented strategies. Birth parents can easily access resources for such normative difficulties in newborns.

If the birth child is breast feed [ sic ], the feeding of the child is usually the domain of the mother. With adoptive children the child is likely to present unpredictable and profoundly perplexing problems that do not have easy solutions. Such difficulties may present significant financial and time demands on both parents. Parents of birth children generally assume that their children will bond with them whereas adoptive parents do not assume that this will occur without huge investments of time, patience and attention with their children. …

However, parents who adopt children through agencies or internationally, face almost 100 percent probability that their child will have at least temporary if not lifelong difficulties. The multitude of extraordinary pre and post adoption stressors and challenges that almost all adoptive parents face are not shared by the majority of birth parents … [ 109 ] Dr.

Woulff's testimony elaborated on the situation of adoptive parents: … the profile of a typically adoptive child has changed radically in the last 50 years, and the idea that even as recently as, I'd say, 25 years ago people in this province were — and I'd say in all of North America — were often — I don't know if it's the right — but it was possible — it was certainly possible to adopt a healthy infant. And by "infant" I mean a child that was often as young as 16 days old, which would be the youngest point at which you could adopt a child or within a few months old.

Even as recently as 25 years ago that wasn't terribly uncommon. Today, 2014, and I'd say in the last 10 years or even 15 years, that's become such a rarity that it may not even be statistically significant.

So, what that means is that — but there are adoptable children, but these adoptable children almost always have some degree of special needs, and certainly it's been my obviously [ sic ] that a lot of the children adopted have more than one special need, so you have not simply, let's say, ADHD. … Adoptive parents, with their children, they don't have that ease of access of support and information, so most adoptive parents that I've ever encountered put in enormous energy in trying to understand and learn about these children.

There's one very, very critical difference along with all this — you know, what I'm talking about is, yes, so you have a special needs child and it's demanding and you have to learn how to cope, okay. … Can you imagine having a child placed in your arms — I think some of you must have had children — and then be told immediately by the doctor, "You take very good care of that child, because we're going to be checking up on you, and that child, although you birthed it or your wife birthed it and you biologically parented it, will not be yours to keep unless you can demonstrate in the next six months, or longer if we deem you need a bit more time, that you can adequately cope".

This, in essence, is what adoptive parents go through. To me that is such a difference. It's not even on a continuum, it's apples and oranges, that they are held sort of i

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