Perreault v. Nova Scotia (Human Rights Commission), 2013 NSSC 329

Supreme Court of Nova Scotia Citation: Perreault v. Nova Scotia (Human Rights Commission) 2013 NSSC 329 Date: 2013-10-17 Docket: Hfx. No. 411492 Registry: Halifax Between: Nicholas Perreault Applicant v.

Nova Scotia Human Rights Commission, Attorney General of Nova Scotia and Pratt & Whitney Respondents __________________________________________________________________ DECISION ________________________________________________________ Judge: The Honourable Justice Kevin Coady Heard: Date of Decision: October 2, 2013, in Halifax, Nova Scotia October 16, 2013 Counsel: Charlene Moore, for the Applicant Lisa Teryl, for the Respondent, Nova Scotia Human Rights Commission Ian Pickard, for the Respondent, Pratt & Whitney By the Court: [ 1 ] The Applicant filed a Notice for Judicial Review of a decision of the Nova Scotia Human Rights Commission (NSHRC) dismissing the Applicant’s request for an extension of time for filing a complaint.

That review will be heard on November 26, 2013. [ 2 ] On July 12, 2013 the Applicant filed this motion pursuant to Civil Procedure Rule 7.27 seeking permission to introduce new evidence beyond the record. The motion is opposed by Pratt and Whitney (P&W). The NSHRC takes no position on the motion. [ 3 ] The proposed addition to the record is a supplementary affidavit sworn by Mr. Perreault on June 4, 2013.

Schedule “A” to that affidavit is a December 5, 2011 e-mail from the NSHRC to Mr. Perreault wherein reference is made to mailing a draft complaint to him.

Schedule “B” is an unsigned complaint. The deadline for filing a signed complaint was February 14, 2012. Mr. Perreault insists that he signed that complaint and personally delivered it to a Ms. Cadogan at the NSHRC on December 12, 2011. The NSHRC has no

record of receiving such a complaint. Ms. Cadogan has no memory of accepting a complaint on December 12, 2011. Mr. Perreaultstates he did not retain a copy of the signed complaint. Attached hereto as

schedule “A” is a copy of the proposed new evidence. [4] The process at the NSHRC unfolded as if a complaint had been received within the one year limitation. On April 18, 2012an unsuccessful resolution conference was held. The absence of a complaint was noticed at that time. [5] Within days the NSHRC provided Mr. Perreault with another complaint form and a request for extension form. Hecompleted those documents and returned them to the NSHRC. Additionally, Ms. Cadogan sent a letter to P&W’s registered agentseeking their position on the extension application.

That correspondence did not find its way to P&W’s counsel. The result of this errorwas that P&W did not forward their objection before a stipulated date. In the absence of any objection the NSHRC officer granted Mr.Perreault an extension. [6] Upon learning of this decision P&W requested the NSHRC reconsider the extension decision after allowing them time tofile an objection. The NSHRC agreed. On December 20, 2012 the officer reversed his decision and denied the application to extend. The officer relied on ExxonMobil Canada Limited v. Carpenter, (2011) 2011 NSSC 445 , N.S.J.

No. 649. [7] The parties have filed an agreed statement of facts which details the time line. Attached hereto as

schedule “B” is theagreed statement of facts. [8] There is a complexity at play in the overall judicial review that bears comment on this motion. Should it be factuallydetermined that Mr. Perreault filed a complaint on December 12, 2011 then the judicial review would be moot. The decision-makerwould have had no jurisdiction to make the decision denying the extension as there would be no limitation issue. Should it be factuallyestablished that Mr. Perreault did not file his complaint on December 12, 2011 then the judicial review would be appropriate. What willbe the issue before the Justice on the judicial review?

Will it be a proceeding to determine if the complaint was filed on time? Will it bea review of the decision-maker’s decision to not extend? Clearly the issue of the alleged filing on time was not before the decision-maker. Should it be before the judicial review Justice? Is a judicial review the appropriate vehicle to inquire into the factual question? [9] It is not disputed that the record is incomplete. In addition to Mr. Perreault’s affidavit and attachments, P&W’s April 26,2011 letter opposing the extension is not included. Counsel for P&W provided it to the NSHRC on March 28, 2013.

The record doesnot include the December, 2011 letter from the NSHRC to Mr. Perrault enclosing the complaint form referred to in the December 5,2011 e-mail to Mr. Perreault. The record does not include event notations one would expect. Correspondence was misdirected causingdisruption to the usual timelines. In the December 5, 2012 decision allowing the extension the decision-maker stated: I find the circumstances exceptional as required by the Act. Mr. Perreault’s file had been processed as if the complaint had been filed.

Itwas only late in the process, and after the one-year time limitation had elapsed, that the oversight was realized. An administrativeoversight by Commission staff contributed significantly to the failure to file a complaint within the time limitation. Counsel for the NSHRC readily acknowledged that they were responsible for drafting the complaint. [10] In the decision-maker’s reversed decision of December 20, 2012 he stated: Mr. Perreault’s file was processed as if the complaint had been filed. It was only late in the process, and after the one-year timelimitation had elapsed, that the oversight was realized.

An administrative oversight by Commission staff contributed to Mr. Perreault’sfailure to file a formal complaint within the time limitation. However, despite these facts, I must apply ExxonMobil and find that Mr.Perreault remained responsible for filing a complaint within the prescribed time limitation. [11] P&W relies on the fact that when the absence of a complaint was discovered on April 18, 2012, Mr. Perreault said nothingabout filing on December 12, 2011. P&W argue that Mr.

Perreault received two reminders (January 3 & 18, 2012); a second draftcomplaint (April 17, 2012); a request for an extension (May 11, 2012); and a further draft complaint (September 28, 2012) and saysnothing about filing on December 12, 2011. [12] On Mr. Perreault’s May 11, 2012 “Request for an Extension Form” the following appears: Reasons for requesting an extension: Please provide, concise, clear, specific reasons why you did not contact the Human RightsCommission regarding your complaint within 12 months of the last alleged discriminatory act. Mr.

Perreault replied as follows: I did contact the HRC within 12 mts but my complaint letter was sent to me on April 19/ 2012 and signed on April 20/ 2012. Rosemariereceived it by email that same day, when she notified me that I would have to make an extension request since I didn’t sent thatcomplaint in on time. Before the Feb 14/ 2012. [13] Civil Procedure Rule 7.27 states as follows:

(1) A party who proposes to introduce the evidence beyond the record on a judicial review or appeal must file an affidavit describing theproposed evidence and providing the evidence in support of its introduction.

(2) An applicant for judicial review, or an appellant, must file the affidavit when the notice for judicial review, or the notice of appeal isfiled, and a respondent must file the affidavit no less than five days before the day the motion for directions is to be heard.

(3) A motion for permission to introduce new evidence must be made at the same time as the motion for directions, unless a judge ordersotherwise. Discussions on and around the motion for directions removed any concerns about filing times. [14] The test for admission for new evidence was articulated in Palmer v. The Queen, (SCC), [1980] 1 SCR 759 as follows:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief.

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [15] The evidence as a whole indicates that when contact is made with a complainant staff at the NSHRC assume responsibilityfor drafting the formal complaint. The record confirms that Mr. Perreault was diligent in responding to the directions of Ms. Cadogan. There is no evidence that he displayed an indifferent attitude to his complaint. Ms. Cadogan acknowledged that she “dropped the ball”respecting Mr. Perreault’s complaint.

Also the process unfolded as if all players accepted that a complaint was filed on time. [16] It would be difficult to conclude that Mr. Perreault did not exercise the due diligence expected of a self-representedcomplainant. He clearly followed directions on all matters ancillary to the formal complaint. Putting aside the issue of credibility, Mr.Perreault did not realize the record was incomplete until he received it. I must find that he was as diligent as could be expected in thecircumstances.

I am not prepared to conclude that his failure to protest in the face of the limitation issue equates to a lack of duediligence. He was an unsophisticated complainant navigating an unfamiliar landscape. [17] Mr. Perreault’s proposed new evidence must be relevant to a decisive issue that was before the decision-maker. The decisiveand only issue before the decision-maker was whether an extension of time should have been granted. If the proposed evidence had beenpart of the record it would have been something for the decision-maker to consider.

The e-mail and the draft complaint would be someevidence that the issue of filing on time was on the minds of staff at the NSHRC. [18] The third Palmer requirement is that the proposed evidence must be credible and reasonably capable of belief. The e-mailand the draft complaint establish that Mr. Perreault, at a minimum, was provided with a complaint well in advance of the limitationperiod expiring. The issue of credibility relates to whether he signed it and forwarded it the NSHRC on December 12, 2011. He says hedid. The NSHRC and P&W are not in a position to refute his evidence.

The mismanagement of the file by Ms. Cadogan opens up thepossibility that the alleged complaint could have been lost. Paragraph 32 of the agreed statement of facts does little to erase thatpossibility. Clearly Mr. Perreault has issues with credibility but I am not prepared to conclude that he is incapable of belief on the criticalissue. [19] The fourth Palmer requirement is whether the proposed evidence could have affected the result. If the e-mail and draftcomplaint had been before the decision-maker it would have triggered an investigation into what happened to the draft complaint.

Isuspect that would have included discussions with Mr. Perreault. His version of events could reasonably lead the decision-maker toconclude there were sufficient irregularities to suggest it was possible that Mr. Perreault was truthful. Such a conclusion could haveavoided an extension decision. The submissions of the NSHRC counsel indicate that at the material time extensions were routinelygranted. [20] I am satisfied that the Palmer test has been met and I order that Mr. Perreault’s Affidavit and attachments be made part of thejudicial review record.

I conclude that the credibility issue should be before the reviewing justice. It would be procedurally unfair todeprive Mr. Perreault the opportunity to put this evidence before the reviewing Court. Coady J.