ExxonMobil Canada Ltd. v. Carpenter, 2011 NSSC 445

SUPREME COURT OF NOVA SCOTIA Citation: ExxonMobil Canada Ltd. v. Carpenter, 2011 NSSC 445 Date: 20111201 Docket: Hfx No. 341459 Registry: Halifax Between: ExxonMobil Canada Ltd. Applicant and Cynthia Carpenter and Nova Scotia Human Rights Commission Respondents LIBRARY HEADING Judge : The Honourable Justice Gerald R. P. Moir Heard: October 26, 2011 Subjects: Judicial review; Human Rights Act ; Extension of time to make a complaint

Summary: A complaint of a violation of the Human Rights Act must be made within twelve months of the violation. Counsel for Ms. Carpenter contacted the commission before expiry of the period. After expiry, counsel and commission staff discussed extending an administratively imposed twenty-eight day deadline for completing a questionnaire. Later, staff informed counsel of the statutory twelve month deadline. The Director has a discretion to extend the statutory period in "exceptional circumstances". Ms. Carpenter applied.

Exxon was notified of the application, but it was not provided with all the record or any of Ms. Carpenter's submissions. The extension was granted on the basis that commission staff had caused confusion about the statutory deadline. Issues:

(1) Ought the decision be set aside for procedural unfairness?

(2) What is the standard of review on the "exceptional circumstances" decision?

(3) The outcome of that review. Results:

(1) The decision should be set aside for procedural unfairness. This is not a case for exercising the overriding discretion to avoid injustice.

(2) The standard is reasonableness.

(3) The decision was unreasonable in the sense of unjustified. The discussions with commission staff had nothing to do with the statutory deadline.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA Citation: ExxonMobil Canada Ltd. v. Carpenter, 2011 NSSC 445 Date: 20111201 Docket: Hfx No. 341459 Registry: Halifax Between: ExxonMobil Canada Ltd. Applicant and Cynthia Carpenter and Nova Scotia Human Rights Commission Respondents

DECISION Judge: The Honourable Justice Gerald R. P. Moir Date of Hearing: October 26, 2011 Counsel: Tara Erskine, for ExxonMobil Canada Ltd. Janet Stevenson, for Cynthia Carpenter Lisa Teryl, for Nova Scotia Human Rights Commission Moir, J.: Introduction [ 1 ] Effective July 1, 2008, the right to make a complaint under the Human Rights Act became subject to a twelve month limitation period. The amendment implementing this change also gave the Director of Human Rights a limited discretion to increase the period. [ 2 ] Ms.

Cynthia Carpenter wished to complain against her employer, ExxonMobil Canada, that for many years she had been subjected to various acts of discrimination relating to her nut allergy, sex, and sexual orientation. This ended only on February 25, 2009 when she left regular employment and obtained disability benefits. [ 3 ] The first contact on Ms. Carpenter's behalf with the Nova Scotia Human Rights Commission was on January 26, 2010, eleven months after the end of Ms. Carpenter's regular employment.

The substance of her complaint was described by her lawyer to commission staff in a telephone call on February 11, 2010, eleven and a half months after the end of regular employment. At that time, the commission provided a form of "intake questionnaire". The questionnaire was completed and delivered to the commission on April 29, 2010, fourteen months after the end of Ms. Carpenter's regular employment with Exxon.

[ 4 ] A formal complaint was not filed. The Human Rights Commission follows a practice under which it, rather than the complainant, formulates the complaint. [ 5 ] On behalf of the Director of Human Rights, Mr. Gerald Hashey, Manager, Dispute Resolution, extended the time for Ms. Carpenter to file a complaint until January 7, 2011. [ 6 ] In order to make that decision, Mr. Hashey obtained written representations of fact and submissions on behalf of Ms. Carpenter and Exxon. Exxon was provided with summaries of some of what was represented and submitted on behalf of Ms.

Carpenter, but it was not provided with copies of the representations and submissions. What Makes a Complaint? [ 7 ] This issue needs to be discussed before we look more deeply into the facts. Subsection 29(2) of the Human Rights Act contains the new limitation. It uses the passive voice, "Any complaint must be made ...". This picks up on "complaint" in s. 29(1), which requires the commission to: inquire into … any complaint of an alleged violation of this Act 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. The discretion to extend time in s. 29(3) allows the director "to grant a complainant an additional period of not more than twelve months to make a complaint". [ 8 ] It is argued on behalf of Ms. Carpenter that two kinds of complaint are contemplated, "a complaint in writing" under s. 29(1) (

a) and a complaint understood in the sense of a communication to the commission that provides " 'reasonable grounds' for the Commission to believe a complaint existed". The later kind of complaint would be a complaint under s. 29(1)(

b) and to ignore it would offend the related principles that all words in a statute must be given meaning and that no provision is repetitive of another: Mime'j Seafoods Ltd. v. Nova Scotia Workers' Compensation Appeals Tribunal , 2007 NSCA 115 . [ 9 ] In his decision, Mr. Hashey expressed the view that "a complaint must be made within twelve months" and such "is made when the person makes a complaint in writing on a form prescribed by the Director". An "Intake Form" or, as Mr. Hashey called it, an "Intake Questionnaire" is required by commission staff before they will accept a complaint.

According to the commission's submission, the "completion of the complaint form stops the limitation period", not the completion of the questionnaire. [ 10 ] So, there is a conflict about the meaning of s. 29(3): Does it provide a discretion to extend time to make a complaint under s. 29(1)(

a) or to make a "complaint" under either s. 29(1)(

a) or (b)? [ 11 ] In my opinion, the correct

interpretation of s. 29(3) is that it has nothing to do with s. 29(1)(b). Subsection 29(3) applies only

to a complaint under s. 29(1)(a). [ 12 ] I agree with the submission on behalf of Ms. Carpenter that s. 29(1)(

b) requires a meaningful

interpretation and that reading "complaint" in it to mean a formal complaint fails to do that. However, I do not interpret s. 29(1)(

b) as elevating informal communications with the commission to the status of complaints. Rather, I see it as giving the commission a basis for launching an inquiry on its own. [ 13 ] The Act establishes procedures to be followed after the filing of a complaint. This includes approval of a settlement "after the filing of a complaint" in s. 32(1), the appointment of a board of inquiry "after the filing of a complaint" in s. 32A(1). The complaint determines the parties: s. 33.

It determines the scope of the final decision: s. 34A. [ 14 ] Throughout the Act , "complaint" is treated as a document that provides the substance of the alleged violation and information about the parties harmed by it. For that reason, s. 29(1)(

b) is difficult. Does it mean that the commission additionally obtains jurisdiction when it reasonably believes that a complaint has been prepared but not yet "made" or filed?

Or, does it use "complaint" in a different sense than found in the rest of the Act , a sense that refers to the substance of a complaint, the grounds for complaining? [ 15 ] To apply the first sense has the attraction of consistency and the disadvantage of redundancy. (How can it be said that one has reasonable grounds for believing that a formal complaint "exists" although it has not yet been made?) To apply the second has the attraction of meaningful use. (The board can launch an investigation when it reasonably believes there are grounds for a complaint.) This has, however, the disadvantage of inconsistent use of the same word.

Parliament and the legislatures are not expected to use the same word, in the same statute, with different senses. [ 16 ] As I see it, there has to be a substantial difference between the sense in which "complaint" is used in the phrase "reasonable grounds for believing that a complaint exists" in s. 29(1)(

b) and the sense in which it is used in "makes a complaint in writing" in s. 29(1) (a), "complaint … made" in s. 29(2), and "an additional period to make a complaint" in s. 29(3). If complaint is understood in s. 29(1)(

b) to be the same as in the other places, then s. 29(1)(

b) is redundant. [ 17 ] Unlike all of the other provisions, which refer to a complaint being made, s. 29(1)(

b) refers to grounds for believing that a complaint exists. The only circumstance in which the commission might reasonably believe that a complaint exists, although it has not been made, arises when the commission has information about a violation of the Act that could reasonably found a complaint. [ 18 ] That is to say, "complaint exists" means that there are reasonable grounds for believing that someone could rightly make a complaint. [ 19 ] This makes s. 29(1)(

b) meaningful because it supplies a basis for the commission to launch an inquiry into its own complaint. [ 20 ] I reject the alternative

interpretation of s. 29(1)(

b) that would elevate informal communications to the status of complaints. The scheme is premised on a formal complaint and a process of inquiry based on it. The

interpretation suggested for Ms. Carpenter would be inconsistent with the scheme and the certainty it is meant to achieve. It would also make s. 29(1)(

a) nearly meaningless because in almost every case the obligation to make inquiries would arise at some vague time in the dialogue between a complainant of the commission. [ 21 ] I express no opinion about the application of s. 29(2) or (3) to an inquiry into a complaint based on the commission's reasonable belief that grounds exist. The

interpretation of s. 29(3) does not turn on whether it applies to a commission complaint under s. 29(1)(

b) as well as a complaint made by a complaining party under s. 29(1)(a). [ 22 ] I see no support in the Human Rights Act for the commission's practice of taking over the complaint laying process. The

legislation does not permit the commission to refuse a complaint delivered by a complainant rather than one developed with the commission. More importantly for the present discussion, the twelve-month deadline runs until the formal complaint is made. The complaint is prescribed even though information is supplied, such as on the intake questionnaire. Events Leading up to Request for Extension [ 23 ] Ms. Carpenter's lawyer first contacted the Nova Scotia Human Rights Commission on January 26, 2010. He advised that she worked in the offshore for Exxon and had been negatively treated.

Commission staff referred him to the Canadian Human Rights Commission. [ 24 ] The federal commission determined that the subject was not in their jurisdiction. [ 25 ] On February 11, 2010 the lawyer again contacted the provincial commission. He requested an "Intake Questionnaire" and he provided some more detail. [ 26 ] Ms. Carpenter had been a millwright apprentice. She alleged that she was overlooked for training opportunities because of her sex and her sexual orientation.

She said she also was harassed by her supervisor who swore, made threats, and once threw a chair at her. [ 27 ] The questionnaire was sent to the lawyer with a warning that it had to be completed and submitted within twenty-eight days. The lawyer requested two extensions. [ 28 ] Wherever the twenty-eight-day deadline for the questionnaire came from, there was no discussion of the statutory twelve- month deadline for making a complaint.

That statutory deadline came and went before any discussion about an extension of the twenty- eight-day administrative deadline. [ 29 ] The intake questionnaire was signed and delivered in April, 2010 by Ms. Carpenter's other lawyer, Ms. Stevenson. It alleged ongoing discrimination that only ended when Ms. Carpenter left regular employment with Exxon on February 25, 2009. [ 30 ] Early in May, an official at the commission told Ms. Stevenson that her client needed an extension of the statutory deadline. Ms.

Stevenson complained that a "Human Rights Officer" had assured counsel that "there was no need to worry about that process." [ 31 ] The official had pointed out that a "Human Rights Officer does not have authority to make [a] decision of this nature". The issue would have to be referred to a Manager of Dispute Resolution for review. Ms. Stevenson requested "extension forms". The documentation was delivered late in May. [ 32 ] Near the end of June, Mr. Hashey, as Manager of Dispute Resolution, wrote to the parties. He briefly summarized Ms. Carpenter's allegations. He stated that Ms.

Carpenter had applied for an extension under s. 29(3). He did not summarize her grounds. [ 33 ] Mr. Hashey's letter offered Exxon "an opportunity to object … on the grounds that the delay has prejudiced their ability to respond to the allegations."

Submissions to Mr. Hashey [ 34 ] As I said, Exxon was not given a copy of Ms. Carpenter's "request for an extension form" before Mr. Hashey made a decision. It was signed by Ms. Stevenson late in May, 2010. [ 35 ] The form puts forward two reasons for the delay. Firstly, Ms. Carpenter has various psychiatric disorders and they make pursuing the complaint difficult for her. So, "the nature of Ms. Carpenter's medical condition and the impact on her of completing the

summary" was an exceptional circumstance justifying extension. [ 36 ] The second reason in the request for extension form relates to advice received from the commission. The first lawyer had explained to commission staff that "we would not be able to [file] within the deadline because of her medical condition". Based on the response, We understood that because we had [made] contact with the Commission within the deadline that as long as the

summary of Ms. Carpenter's complaint was filed within a reasonable time, it would not be a problem. Thus, "we did not believe that we were jeopardizing Ms. Carpenter's complaint by not filing within the required time as we had informed the Commission that there would be a delay." [ 37 ] The communications between the first lawyer and the commission were about the administratively imposed twenty-eight days for completing the questionnaire, not the twelve month statutory deadline. Also, those communications about extending time occurred after the statutory deadline had expired. [ 38 ] Exxon retained Ms.

Erskine after it received the letter from Mr. Hashey. Ms. Erskine said that Exxon required more detail before it could adequately assess the issue of prejudice. Mr. Hashey provided details based on the intake questionnaire. He warned that his

summary "should not be taken to be the complete or final statement of her allegations". However, the

summary substantially disclosed what the commission had been told so far about discrimination against Ms. Carpenter. [ 39 ] In August of 2010, Ms. Erskine delivered a lengthy and detailed submission against the extension. On behalf of Exxon, she emphasized the age of incidents specified in the

summary: events about a nut allergy ten years before, harassment and discrimination alleged to have started eight years before, and an altercation that occurred a year and a half before. [ 40 ] The submission argued that the primary reason for the delay, as portrayed by the

summary, was groundless. Ms. Carpenter was well enough to file a complaint through counsel. [ 41 ] On prejudice to Exxon, the submission pointed out that most of the people named in the

summary were no longer employees. One of these would have been a "key witness". Some remained employees, but work for Exxon outside Canada. Some documents have likely been purged. Decision Under Review [ 42 ] Mr. Hashey's decision was delivered in November, 2010. He wrote, "I have reviewed the file." (That is to say, he considered information not disclosed to Exxon.) He summarized the facts in eight points:

1. On January 27, 2010, contact with the Nova Scotia Human Rights Commission was initiated by legal counsel on behalf of the complainant, Cynthia Carpenter. At that time, based on available information, counsel was advised that this matter may fall within the jurisdiction of the Canadian Human Rights Commission. 2. On February 1, 2010, further contact with counsel for the complainant helped to clarify issues of jurisdiction. On that date an Intake Questionnaire was sent for completion. Intake Questionnaires are required to be returned within 28 days and the complainant was informed of this fact. 3.

On March 16, 2010 counsel for the complainant requested an extension to return the Intake Questionnaire. 4. On April 29, 2010 the Intake Questionnaire was received. This does not constitute the filing of a complaint under Section 29(1) (

a) of the Human Rights Act . 5. A review of the Intake Questionnaire revealed that the last alleged date of discrimination was February 25, 2009. Any complaint filed under Section 29(1)(

a) of the Human Rights Act is required to be filed within 12 months of the action or conduct complained of, or within twelve months of the last instance of the action or conduct if the action or conduct is ongoing. 6. On May 6, 2010 a Request for Extension for was sent to counsel for the complainant. The completed Request for Extension was filed with the Commission on May 26, 2010. 7. In requesting an extension, counsel for the complainant reported that Ms.

Carpenter's medical condition (Post Traumatic Stress Disorder) made it difficult for her to pursue a complaint because in order to do so she has to relive the events that form the basis of the complaint. Counsel also reports that they believed they were not jeopardizing Ms. Carpenter's complaint by not filing within 28 days as they had informed the Commission that there would be a delay. Counsel further states that they were advised by a Commission Intake Officer that because they had made contact with the Commission within the deadline, as long as the

summary of Ms. Carpenter's complaint was filed within a reasonable time, it would not be a problem. 8. Exxon Mobil Canada objects to the granting of an extension. [ 43 ] Mr. Hashey then provided his "Reasons for decision". He referred to the "three elements" of s. 29(3): 1. The circumstances leading to the request for extension must be exceptional; 2. The decision to grant an extension would be equitable with regard to any prejudice to the complainant or the respondent; and 3. It must be in the public interest to grant an extension. Mr. Hashey said that the requirement for "exceptional circumstances" sets "a very high standard against which reasons for an extension

request are assessed". [ 44 ] Evidently, Mr. Hashey did not accept the medical reason advanced for Ms. Carpenter. He made no mention of it. Rather, he found the communications with the commission about a deadline for the questionnaire constituted exceptional circumstances: [Complainant's counsel] might reasonably have believed that they had more time to file their complaint based upon information received from Commission staff. Notification to the complainant that the intake questionnaire was due within 28 days could easily have been perceived as defining a new deadline for submitting the required documentation.

As this apparent confusion arose out of communication that originated from the Commission, the complainant should not be penalized. This circumstance is therefore exceptional. He was also satisfied that the respondent would not be prejudiced by the extension and that it was in the public interest to grant one. [ 45 ] Mr. Hashey concluded "Ms. Carpenter has until January 7, 2011 to file her complaint." Issues [ 46 ] I will start with an objection made by Ms.

Carpenter that the application for review is premature. [ 47 ] I will then briefly dispose of several of Exxon's arguments: the commission routinely grants extensions, the decision founds a reasonable apprehension of bias, and the alleged misconduct is too old. [ 48 ] I will then discuss the two issues that impress me as having greater merit: the decision-maker having made use of a record not shown to Exxon, and the conformity of the reasons with the requirement for "exceptional circumstances". This will include a discussion about the standard of review.

Commission Track Record on Extensions [ 49 ] Exxon argues that, despite the restrictions in the legislation and despite Mr. Hashey's express recognition of a high standard in the words "exceptional circumstances", the commission routinely grants extensions. The commission obliged Exxon's argument by providing, as part of the record, redacted copies of each of the decisions on extensions since the new limitation came into effect. [ 50 ] Of the fourteen requests for extensions, four were granted. Those numbers do not establish a routine of granting extensions. Nor does the content of the extension decisions.

They follow a format, but each evidences an individual assessment. [ 51 ] There is no ground for interference based on the numbers of accepted requests for extension of the statutory deadline. Whether the Issue is Premature?

[ 52 ] Ms. Carpenter relies on Halifax (Regional Municipality) v. Human Rights Commission , 2008 NSCA 108 and Halifax (Regional Municipality) v. Human Rights Commission , 2010 NSCA 8 . She argues that the decision under review is interlocutory and review is precluded on the principle that the court generally refrains from interfering until the work of a tribunal is finished. [ 53 ] The decision is, as Mr. Hashey pointed out, final. It turns on substantive law, a limitation period. The remedy of prohibition is not sought.

On the contrary, there is no tribunal doing any work on the complaint. [ 54 ] Practicality favours a determination of the issue raised by the notice for judicial review. As there is no proceeding to disrupt, it would be wasteful to insist that the commission investigate the complaint, and proceed to determination, only to be told that it was out of time. See Psychologist "Y" v. Nova Scotia Board of Examiners in Psychology , 2005 NSCA 116 at paras. 22 and 23 , and Imperial Parking Canada Corp. v. Bali , 2005 BCSC 643 at para. 55 .

Reasonable Apprehension of Bias [ 55 ] Exxon's argument goes that because staff once assured Ms. Carpenter's lawyer not to worry about a deadline, Mr. Hashey lost objectivity on the question of an extension of the statutory deadline. [ 56 ] This argument is not consonant with one of Exxon's main points in its argument that the determination of "exceptional circumstances" was unreasonable: the conversation with staff was not about the statutory deadline; it was about a deadline imposed merely by commission administration. [ 57 ] Secondly, Mr. Hashey showed no bias.

It is reasonable to take into account the possibility that the commission may have misled a complainant about the limitation period. Recognizing a mistake one made does not create a reasonable apprehension of bias without something more. Complaints Too Old [ 58 ] The statutory limitation prevents Ms. Carpenter from putting forward a distinct incident from her distant past as a violation of the Human Rights Act .

The evidence about such an incident may, however, be relevant to an allegation of ongoing misconduct. [ 59 ] Subsection 29(2) reads: Any complaint must be made within twelve months of the date of the action or conduct complained of or within twelve months of the last instance of the action or conduct if the action or conduct is ongoing. Evidence of older conduct would only be admissible to prove ongoing misconduct, not a specific violation. Decision Made on Undisclosed Information

[60] Mr. Hashey's decision was based on Ms. Carpenter's request for an extension, which was not shown to Exxon until after thedecision was made, Ms. Carpenter's questionnaire, which was not shown to Exxon but was adequately summarized for it by Mr. Hashey,and a review of the file, which included over forty pages not disclosed to Exxon. [61] Only one thing in the record seems to explain why a decision was made on a record known only to one side. Remember that,when Mr.

Hashey advised Exxon about the request for an extension, he offered Exxon "an opportunity to object … on the ground thatthe delay has prejudiced their ability to respond to the allegations." The "allegations" are those in the questionnaire about violations ofthe Human Rights Act, and not the submissions for an extension. [62] This, and the failure to disclose relevant parts of the record, including the very document that requests the extension andmakes representations and submissions for it, leads one to suppose that Mr.

Hashey thought that Exxon should make submissions onlyon the issue of prejudice, and not on "exceptional circumstances". [63] Whatever the reason, a party was left in ignorance of much of the information on which a decision affecting the interests ofthe party was made. [64] With some rare exceptions, such as to determine privilege, it is a breach of the duty of procedural fairness for a tribunal toconsider evidence unknown to one of the parties: Canadian Broadcasting Corp. v. Paul, (FC), [1998] F.C.J. 1823(F.C.T.D.); Moore v.

Canada (Attorney General), 2005 FC 13 (F.C.C.). [65] It seems to me as great a breach to take written submissions from one party knowing that the other party has not seen a copy. [66] In this case, the undisclosed evidence and submissions included the application for an extension itself and it included the veryargument that Mr. Hashey accepted on the issue of "exceptional circumstances". [67] The standard of review analysis has no place in a case of procedural unfairness: Baker v. Labour Standards Tribunal, 2010NSCA 43.

On this ground alone, the decision to extend time should be set aside unless a case can be made for the exercise of discretionon the ground that setting aside the decision causes an injustice. The reasoning in the next sections shows that this is not a case forexercising the overriding discretion. Standard for Reviewing the "Exceptional Circumstances" Question [68] The "exceptional circumstances" issue requires a determination of the standard of review.

All counsel submit that the reviewshould be conducted to the standard of reasonableness, rather than correctness. [69] Subsection 29(3) of the Human Rights Act gives the director a discretion ("the Director may"), but the discretion is limited inthree ways: • The discretion may only be exercised "in exceptional circumstances". • It may only be exercised "if to do so would be in the public interest". • It may only be exercised "if to do so … would be equitable" and, in determining that, the director must have "regard to any prejudice

to the complainant or the respondent". [70] A decision about extending time for a human rights complaint was held to be reviewable for reasonableness in CanadaRevenue Agency v. McConnell, 2009 FC 851 (F.C.C.). The legislation applicable in that case provided a generalized discretion withoutthe limits imposed in our legislation. [71] Each limit requires the director to make findings of fact. Such were reviewable for simple reasonableness before Dunsmuir v.New Brunswick, 2008 SCC 9 abolished the distinction between patent and simple reasonableness: Dr. Q v.

College of Physicians andSurgeons of British Columbia, 2003 SCC 19. [72] The application of each limit to the facts calls upon a mixture of the general knowledge any court possesses and specialknowledge of human rights protection. I would not characterize this function as highly specialized, but there is an element of expertise atplay. [73] The purpose of the Human Rights Act indicates a deferential approach to the ability of a board of inquiry to determine relatedquestions of law, fact, or both: Nova Scotia Construction Safety Assn. v. Nova Scotia Human Rights Commission, 2006 NSCA 63 paras.46 and 47.

I see no reason to distinguish between a determination of a complaint by a board of inquiry and the exercise of a discretion toextend time by the director. The same statutory purpose hovers over both decisions. [74] The question under review is one of mixed fact and law. Generally speaking, the more the question tends to fact the more weare inclined to deference, and vice versa: Nova Scotia Construction Safety Assn., para. 48. [75] The question is related to the exercise of a statutory discretion. The exercise of a discretion is entitled to deference.

Indeed,the courts have no business exercising a discretion that belongs to another. However, the question at issue is a requisite to the exercise. [76] There are no applicable privative clauses or rights of appeal. [77] Considering the four factors that go to standard of review, and the case law on less restricted discretions to extend time for ahuman rights complaint, I conclude that the standard applicable on this review is reasonableness. Review of the "Exceptional Circumstances" Determination [78] To determine reasonableness, I must inquire into "justification, transparency and intelligibility" in Mr.

Hashey's "decisionmaking process" and I must also be concerned with "whether the decision falls within a range of possible, acceptable outcomes which aredefensible in respect of the facts and law": Dunsmuir, para. 47. See also, Casino Nova Scotia/Casino Nouvelle Ecosse v. LabourRelations Board, 2009 NSCA 4. [79] The phase "exceptional circumstances" is vague when it is used, as it is in s. 29(3), without reference to a principle fordetermining what should constitute an exception. It is true that the phrase was used by Justice Edwards in Inrich Business DevelopmentCentre Ltd. v.

LeBlanc, (NS SC), [1997] N.S.J. 183 (S.C.) at para. 13, but there its use was not vague because it wastied to the principle described in para. 11. [80] Ms. Erskine also referred me to Alberta Union of Provincial Employees v. Lethbridge Community College, 2002 ABCA 125. Under a collective agreement, unlike the common law, the "appropriate arbitral response" to dismissal without cause "is usuallyreinstatement": para. 48. Different remedies, such as damages, are available "only in very exceptional circumstances": para. 49.

LikeJustice Edwards, and unlike s. 29 of the Human Rights Act, the Alberta Court of Appeal referred to principle and provided a frameworkin which one can understand what might constitute an exception.

[ 81 ] The phrase "only in exceptional circumstances" found its way into former Rule 28.05(3). As the Rule failed to provide a principle, this court was not able to offer much guidance beyond observing the obvious, exceptional means "something unusual or out of the ordinary": Vassallo v. Vassallo , [1991] N.S.J. 68 (S.C.) ; Fisher v. West Colchester Recreation Association , 2010 NSSC 358 ; Klain v. Klain , [1998] N.S.J. 20 (C.A.) . See also, Bressmer v.

M&F Handel Development Ltd. , 2007 NSCA 76 . [ 82 ] Every one of the commission's extension decisions produced as part of the record contains this pro forma statement: Choice of the term "exceptional circumstances" by drafters of Section 29(3) suggests a very high standard against which reasons for an extension request are measured. The decision to be made is whether your reasons for not filing a complaint constitute exceptional circumstances. I am not sure that a requirement for "exceptional circumstances" suggests a very high standard.

Rather, it means that extensions cannot be routinely granted and that the difficult task of deciding what constitutes an exception under a statute that provides no express guidance falls to the contextual principle of statutory

interpretation. Justice Germain discusses this extensively in Edmonton v. Edmonton Assessment Review Board , 2010 ABQB 634 at paras. 35 to 46 . [ 83 ] As I read his reasons, Mr. Hashery ruled out the medical explanation as an exceptional circumstance. That left only the explanation based on Mr. Carpenter's counsel being misled by commission staff.

In my assessment, there is no logical connection between what staff said to counsel and staff and the failure to file a complaint on time. [ 84 ] "[Counsel] might reasonably have believed that they had more time to file their complaint based upon information received from Commission staff." There was no discussion between counsel and staff about the statutory deadline for filing a complaint. The discussion was about the administratively imposed deadline for filing a questionnaire.

It is unreasonable to suggest that a discussion about when to file a questionnaire led counsel to believe that the statutory deadline for filing a complaint was extended. [ 85 ] "Notification to the complainant that the intake questionnaire was due within 28 days could easily have been perceived as defining a new deadline for submitting the required documentation." This means that the administrative imposition of the deadline for filing a questionnaire could easily have been perceived as providing a new statutory deadline for filing the complaint.

It is unreasonable to suggest that counsel took an extension of a twenty-eight day administrative deadline for filing a questionnaire to be an extension of a one year statutory deadline for making a complaint. [ 86 ] "As this apparent confusion arose out of communication that originated from the Commission, the complainant should not be penalized." This is the ultimate conclusion. Commission staff caused confusion, so the complainant should not be held to the statutory deadline. The conclusion is unreasonable, in the sense that it is unjustified.

That is to say, there is no logical connection between the deadline and the confusion. [ 87 ] The chronology also shows that there was no logical connection between missing the statutory deadline and confusion caused by discussions with commission staff.

The deadline passed before the discussions started. [ 88 ] The decision to extend time was unreasonable in the sense that it provides no "justification", i.e. the premises do not support the conclusion. [ 89 ] In practice, the first aspect of a review for reasonableness, which requires a discussion of reasonableness in the sense of "justification, transparency and intelligibility", will often merge with the second aspect concerning the "range of possible, acceptable outcomes which are defensible." Just as the premises in the decision under review do not justify the conclusion, an extension of the

statutory deadline is not a possible outcome on the findings. The "apparent confusion" had nothing to do with the deadline or the process for filing a complaint. This becomes more obviously so when one sees that the confusion had to have come after the expiry of the deadline. [ 90 ] The second aspect of a review for reasonableness may also be an opportunity to explore other justifications for the outcome. [ 91 ] There was some delay while the federal human rights commission decided whether it would take jurisdiction. This is put forward for Ms. Carpenter as an alternative justification for the extension.

It is argued that the federal commission only communicated its decision that it did not have jurisdiction on July 14, 2010 and that delay should provide an additional reason for an extension. [ 92 ] There was no connection between the possibility that the federal commission might have jurisdiction and the delay in making a formal complaint to the provincial commission. Indeed, the questionnaire and the request for an extension were filed with the provincial commission before July 14, 2010. Conclusion [ 93 ] The decision to extend the deadline for Ms.

Carpenter to file a complaint under the Human Rights Act was unreasonable. I shall grant an order setting the decision aside. Counsel may make submissions in writing on costs. J.