Paulin v. Nova Scotia (Human Rights Commission), 2016 NSSC 363

Supreme Court of Nova Scotia Citation: Paulin v. Nova Scotia (Human Rights Commission) , 2016 NSSC 363 Date: 20160914 Docket: SYD No. 448445 Registry: Sydney Between: Lorraine Paulin Applicant v. Nova Scotia Human Rights Commission and the Cape Breton Regional Municipality Respondents Library Heading Judge: The Honourable Justice Patrick J.

MurrayHeard: May 30, 2016, in Sydney, Nova ScotiaWritten Decision: September 14, 2016Summary: Judicial review, Employment and Administrative law, Human rights complaint, Motion to Dismiss,Motion to extend time for filing Notice pursuant to Civil Procedure Rule 7.Result: Court denied Applicants motion to extend time for filing judicial review, and granted the Respondent’smotion to dismiss the Judicial Review Application. Court considered the following facts in its discussion: 1. Length of delay; 2. Reason for the Delay; 3.Presence or Absence of Prejudice; 4.

The Apparent Strength or Merit of the proposed Application; 5.Continuing Intention to apply for Judicial Review. [1] Cases/Rules cited: [2] Human Rights Act, R.S.N.S. 1989, c. 214, s. 1; Farrell v. Casavant, 2010 NSCA 71; CentralHalifax Community Association v. Halifax (Regional Municipality), 2007 NSCA 39; CromwellBros. Ltd. v. Maritime Minerals Ltd., (NS CA), [1940] 2 D.L.R. 403; Blunden et atv. Storm, (1970), (NS CA), 1 N.S.R. (2d) 621 (A.D.); In Eco Awareness Society v.Antigonish (Municipality), 2010 NSSC 461; McPhee v.

Pulpwood Marketing Board, (1986) (NS SC), 72 N.S.R. (2d) 312; Rockwood Community Association v. Halifax (RegionalMunicipality), 2011 NSSC 91; Pritchard v. Ontario (Human Rights Commission), (ON SCDC), 45 O.R. (3d) 97; Civil Procedure Rule 7.05(1)(

a) and (b); 64.03(2); 2.03(1)(c);7.10(

a) and (h); 23.12. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Paulin v. Nova Scotia (Human Rights Commission) , 2016 NSSC 363 Date: 20160914 Docket: SYD No. 448445 Registry: Sydney Between: Lorraine Paulin Applicant v. Nova Scotia Human Rights Commission and the Cape Breton Regional Municipality

Respondents Judge: The Honourable Justice Patrick J. Murray Heard: May 30, 2016, in Sydney, Nova Scotia Written Decision: September 14, 2016 Counsel: Barbara Darby, for the Applicant, Lorraine Paulin Kymberly Franklin for the Respondent, Nova Scotia Human Rights Commission Tony W. Mozvik, Q.C., for the Respondent, Cape Breton Regional Municipality Introduction [ 3 ] Lorraine Paulin was employed as a 911 operator for the Cape Breton Regional Municipality (CBRM). In September of 2010 she was dismissed from her job.

She filed a complaint with the Human Rights Commission of Nova Scotia (the “Commission”) in November of 2010. [ 4 ] Ms. Paulin had also filed a grievance through her union in relation to her dismissal. On September 1, 2011 she reached a settlement with her former employer (CBRM). A Release was signed by Ms. Paulin and provided to the CBRM. [ 5 ] On January 26, 2012 the Commission sent Ms. Paulin a letter advising her that they would “not be able to proceed any further” with her matter.

The reason given by the Human Rights Officer was as follows: While I cannot speak on the merits of your complaint with the HRC I must advise you that we cannot proceed because of a Release that was signed. [ 6 ] The Human Rights Commission stated in their January 26 th , 2012 letter that the Release was a “full and final” withdrawal of all matters related to her employment. The Commission concluded by stating, “Only the Courts would have the ability to void the Release”. [ 7 ] Ms.

Paulin contacted the Commission again in December of 2015, explaining that she had proof that the Release did not encompass her human rights complaint.

By letter dated February 1, 2016, the Commission affirmed the earlier decision to close her file as per the letter of January 26, 2012. [ 8 ] The letter of February 1, 2016, referred to certain provisions in the Human Rights Act (in particular sections 29 ), R.S.N.S. 1989, c. 214, s. 1 , as to the time for filing complaints and concluded by stating: It is for these reasons that the Commission cannot ‘re-open’ your file as you requested. [ 9 ] The February 1 st letter stated the decision was “final” and that the decision was “subject to judicial review upon application to the Courts.” Background – Judicial Review Application

[ 10 ] The Applicant, Lorraine Paulin, filed a Notice for Judicial Review on February 23, 2016 seeking a review of the February 1, 2016 decision, which she described as a “review” of the prior decision dated January 26, 2012. [ 11 ] The Respondent, CBRM, filed a Notice of Participation on February 25, 2016 stating that the Court should not disturb any decision, action or other matter under review. [ 12 ] The Respondent, Nova Scotia Human Rights Commission, filed a Notice of Participation seeking that the decision of Human Rights Officer, Shannon Tarr, dated January 26, 2012 and the decision of Dispute Resolution Manager, Celeste Sullivan, dated February 1, 2016, be upheld.

Motions to Dismiss by Respondents [ 13 ] The Commission takes the position that the 2012 and the 2016 decision(

s) are one and the same. On this basis the Commission moves for an order dismissing the application for judicial review, pursuant to Civil Procedure Rule 7.11(a) , as the Appellant is out of time for filing her application. [ 14 ] Similarly, the CBRM moves for an order dismissing Ms. Paulin’s judicial review application, as it is filed outside the timeframe permitted by the Civil Procedure Rules of Nova Scotia . [ 15 ] Both Respondents rely on Rule 7.05(1)(

a) and (

b) in support of their motions. Both Respondents also rely on the record of the Commission filed with the Court on March 21, 2016. [ 16 ] In addition to that record, documents have been added and they include 1) a copy of the undated letter to the Applicant from Mr. Thomas of CBRM containing no date; and 2) a letter signed by Ms. Paulin dated April 10, 2012 acknowledging the letter from Mr.

Thomas. [ 17 ] CBRM submitted and relies further on the affidavit of Gordon MacDougall, sworn on May 19, 2016 which is also part of the record, and his viva voce evidence given on cross-examination. [ 18 ] The time frame permitted by the Rules for the filing of an application for judicial review is 25 days from the date the decision is communicated or 6 months from the date of the decision, whichever is the earlier date. Motion to Extend by Applicant [ 19 ] The Applicant opposes the motions to dismiss and requests that they be dismissed.

In the alternative, should the Court decide to grant the motions, the Applicant moves to extend the time for filing the Application. [ 20 ] The Applicant’s motion to extend is made pursuant to Civil Procedure Rule 64.03(2) and Rule 2.03(1)(c) . [ 21 ] The Applicant relies on two affidavits filed by the Applicant. The first affidavit was filed with the Notice for Judicial Review on February 23, 2016.

The second affidavit was filed with the Motion to Extend on April 19, 2016. [ 22 ] The Applicant submits the Application was filed on time, with respect to the February 1 st , 2016 decision and therefore no motion to extend is required. In the alternative, the Applicant argues that there are circumstances justifying an extension of the time period for filing her application for judicial review.

Analysis and Discussion [ 23 ] Placed front and centre by the Applicant in her position on these motions (and the judicial review itself), is her submission that the Release signed by her in 2011, did not include her human rights complaint. [ 24 ] The crux of the Applicant’s submission is that information pertaining to the Release was not under her control.

Consequently, she had no proof of that the Release did not encompass her human rights until December of 2015, when CBRM made a submission on a related matter to a Labour Arbitration Board. [ 25 ] The Applicant says that upon receipt of that confirmation she immediately contacted the Commission. [ 26 ] I have reviewed all of the evidence presented at the hearing on the three (3) motions held on May 30 th , 2015. Further submissions were received from the Applicant’s counsel on June 20 th , 2016. I shall now briefly deal with that matter. [ 27 ] The Commission record was filed on March 21, 2016.

For the purpose of these motions and for the hearing there have been two additional documents accepted as part of the record. The first is the Thomas letter which was provided with consent by the Commission as part of their file. All parties are aware of it and in fact, it forms part of the Applicant’s April 19 th , 2016 affidavit as Exhibit “C”. The second document is a letter dated April 19, 2012 from Ms. Paulin to CBRM, provided to the Court by Mr.

Mozvik. [ 28 ] Near the end of the hearing and during submissions counsel advised that there may be further documentation submitted to the Court in the form of correspondence, but that discussions would need to be finalized between counsel in regard to the submission of same. [ 29 ] Following the hearing on May 30 th, I thought it prudent to set a time frame for the submission of any affidavit containing agreed upon correspondence. Therefore, by letter to Counsel I set seven days for any subsequent affidavit to be submitted.

At the time I inquired as to whether there was any agreement on the admission of the September 2011 settlement agreement, noting it had been referred in the record, the evidence and the submissions.

[30] On June 7th the Court received a letter from Ms. Darby dated June 6th indicating that though email exchanges had occurred,she had not had an opportunity to speak with Mr. Mozvik about the filing of an affidavit. She respectfully asked the Court for a fewmore days to resolve the matter with Mr. Mozvik which was granted by the Court by letter dated June 7, 2016. [31] On June 20th, 2016, Ms. Darby submitted a further affidavit and indicated in a letter that she was submitting it withoutfinalizing a discussion with Mr. Mozvik.

She stated that they had not had a chance to speak to him about “the affidavit that the Court requested be filed”.

The reason for submitting same was she was going to be out of the province from June 18 – 27th, and did not wish tolet the rest of the month go by “without responding to the request for filing”. [32] In these circumstances I conclude that it would not be appropriate for me to accept this affidavit as part of the record in theseproceedings and in particular, for the purpose of the motions. [33] The Court did not request that an affidavit be filed, it requested that if the parties agreed, that one would be filed, that it be filedinitially within 7 days from the hearing, and then within several more days according to the extension requested. [34] I have heard nothing further from Mr.

Mozvik, nor has the Court taken it upon itself to request to hear further from him. Thisdocumentation comes very late in the proceedings. The Rules provide for introduction of admissible evidence, and what will make upthe record to be dealt with at the time of the Motion for Directions. (Rule 7.10(a), (h)). [35] While I understand Ms.

Darby was attempting to be helpful to the Court, I am exercising my discretion to exclude the affidavit submitted on June 20th, 2016. [36] In these circumstances I do not feel given the lateness, lack of a motion, and lack of any agreement, that the Court is obligatedto undertake an assessment of the factors in Rule 23.12. Indeed I have no submissions in this regard. Further, I do not feel the Court isobligated to allow the Applicant further time to resolve what will be submitted.

The hearing has concluded and I have given theextension I felt was appropriate. [37] In determining what will be just in these circumstances there are a number of factors which the courts have commonlyconsidered, which are not exhaustive or intended to be part of a rigid formula. [38] In Farrell v.

Casavant, 2010 NSCA 71, Beveridge, J.A. stated as follows in regard to how the courts should approach amotion to extend the time for filing an appeal, which for these purposes is relevant to extending the time for filing for judicial review: [17] Given the myriad of circumstances that can surround the failure by a prospective appellant to meet the prescribed time limits toperfect an appeal, it is appropriate that the so called three-part test has since clearly morphed into being more properly considered asguidelines or factors which a Chambers judge should consider in determining the ultimate question as to whether or not justice requiresthat an extension of time be granted. (See Mitchell v.

Massey Estate (1997), 1997 NSCA 9 , 163 N.S.R. (2d) 278; Robert HatchRetail Inc. v. Canadian Auto Workers Union Local 4624, 1999 NSCA 107.) From these, and other cases, common factors considered tobe relevant are the length of delay, the reason for the delay, the presence or absence of prejudice, the apparent strength or merit in theproposed appeal and the good faith intention of the applicant to exercise his right of appeal within the prescribed time period. Therelative weight to be given to these or other factors may vary.

As Hallett J.A. stressed, the test is a flexible one, uninhibited by rigidguidelines. [39] I shall now discuss these factors as they relate to the motions before me. 1. Length of delay [40] The length of the delay is a significant factor that does not favour an extension in the present circumstances. The caselaw doesnot support granting an extension for delays which are much shorter than this, emphasizing the importance of these matters being heardquickly and the need for finality. [41] The Rules stipulate 6 months as the “outside limit”.

If the Rules are to carry any force, a delay of 4 years standing on its own,is not acceptable. 2. Reason for the Delay [42] The central theme of the Applicant is that the Release she signed in 2011 did not encompass her human rights complaint.

Hersolicitor wrote to the Commission upon her obtaining proof of this in December, 2015. [43] The caselaw is clear that waiting for more information or for a legal opinion is not a sufficient reason to postpone seeking tohave your rights enforced. [44] The evidence around this is contradictory or at the very least confusing. [45] First, the proof offered by the Applicant is not sufficiently clear to convey that the Release did not encompass Ms. Paulin’shuman rights complaint. [46] CBRM states for the record that they agreed at the settlement to remove the reference to her compliant only because Ms.

Paulinasked them. They maintain however that if the matter was later raised by her that they would consider the matter “res judicata” and notopen to be further litigated. [47] The Release as it is worded (at Tab C, page 3 of the Record) discharges CBRM in relation to “any and all matters relating toher [Ms. Paulin’s] employment.” It also states it operates as a withdrawal of any claim under legislation.

[ 48 ] The submission of CBRM relied upon by Ms. Paulin states that she “had the ability to exempt human rights from the Release”. The full context of this submission is unknown. The Court is left in a “quandary” as to what was agreed, in view of this evidence. [ 49 ] CBRM says even if it the settlement did not constitute a release of her complaint, Ms. Paulin claims she knew this at that time and did nothing about it. Consequently, they say she should not be able to raise it years later. CBRM states there has been prejudice to them in that they have since paid settlement monies, and filled the position.

They have “moved on” from the employment issue. 3. Presence or Absence of Prejudice [ 50 ] The presence or absence of prejudice is one of the factors to be properly considered as guidelines in determining the ultimate question of whether justice requires that an extension of time be granted. [ 51 ] The Commission argues there is prejudice to the “process” in allowing late “appeals”.

It argues further that administrative chaos will ensue from a re-opening of files and investigations when matters are for all intents and purposes, closed. [ 52 ] The impact of this on the parties is no small matter. [ 53 ] There is a need for finality in administrative decisions, as emphasized by MacDonald, CJNS, in Central Halifax Community Association v. Halifax (Regional Municipality) , 2007 NSCA 39 , when he stated: [25] Effective public decision-making by its very nature commands precision and clarity.

Public decisions that are tentative or incomplete will lead to an unreliable public administration and a confused public. Thus to achieve the required stability, finality in the public decision-making process is crucial. Both government officials and citizens alike need to know precisely when and how such decisions can be subject to court interference. In their text Principles of Administrative Law , 4th ed. (Toronto: Carswell, 2004), at pp. 598-599, Jones and de Villars explain: Where an applicant is guilty of unreasonable delay in bringing its application before a court, it may find the remedy barred.

This is especially true where the delay would result in hardship or prejudice to the public interest or to third parties who have acted in good faith on the strength of the delegate's apparently valid decision. … What constitutes unreasonable delay is a question to be decided in each case. One primary consideration must be the need for effective and reliable administration, which must entail the notion of finality in decision-making. [Emphasis added.] [ 54 ] CBRM submits there is prejudice to them in the granting of an extension to file the judicial review in this matter.

As stated, CBRM maintains the matter is “ res judicata ” despite having removed the reference to human rights, at Ms. Paulin’s request. [ 55 ] The evidence given by Mr. MacDougall is that Ms. Paulin is attempting to re-litigate the matter of her former employment at CBRM. If she were to be rehired, for example, the requirement to retrain is a large component. He also testified that one full-time employee would be eliminated and that this would trigger a “bumping” mechanism under the Collective Agreement (Clause 14.01). He states in paragraph 4 of his affidavit that Ms.

Paulin’s matter was resolved through the grievance/arbitration process in that Agreement. [ 56 ] Mr. MacDougall, as Director of Human Resources, was cross examined on this point by the Applicant’s counsel. He was asked if he agreed that the grievance did not reference discrimination. He said he did not recall anything about discrimination, “no” he said.

At that point CBRM’s counsel conceded there wasn’t a human rights component to the grievance. [ 57 ] Clearly I think, there is some prejudice to both Respondents, although there is also prejudice to the Applicant in that her claim has not been determined on its merits, at least before Commission. It appears however, she was aware of this at an early stage in 2011, as referenced in paragraph 5 of her February 23, 2016 affidavit. 4.

The Apparent Strength or Merit of the proposed Application [ 58 ] Merit is a strong ground for the Applicant in opposing the motions to dismiss and in seeking an extension of the time frame in which to file a judicial review. [ 59 ] There is the letter from Mr. Thomas received sometime prior to April 10 th , 2012. It is Exhibit “C” to the affidavit of Ms. Paulin filed April 19, 2016. In it, Mr. Thomas concluded that discriminating actions occurred toward Ms. Paulin. The letter is part of the record as acknowledged by Ms.

Franklin in her letter to the Court of May 19, 2016. [ 60 ] The letters from the Commission of January 2012 and February 2016 do not speak to the merit of the complaint, as is acknowledged very early in the 2012 letter. [ 61 ] Notwithstanding this, the Commission argues that the application for judicial review lacks merit, even though the threshold is low for this factor. The Commission states the decision is a discretionary decision and is supported by the legislation in s. 29(3)(4)(

d) of the Act . [ 62 ] The Commission says their decision was a based on factual issues being dealt with in another proceeding. It submits the decision was reasonable and is entitled to considerable deference as the issue falls “squarely” within the Commission’s mandate.

[63] CBRM submits there are no exceptional circumstances in this case that warrants an extension of time. They argue theApplicant appears to have accepted the Commission’s ruling that she was precluded from further consideration of her claim ofdiscrimination. [64] CBRM says good labour relations requires that agreements be honoured. Otherwise, employees may second guess and re-litigate issues on an infinite basis. 5.

Continuing Intention to apply for Judicial Review [65] What is the evidence of intention during the 6 months after the decision of January 26, 2012 (as shown by the Applicant), thatshe was intending to apply for judicial review within that time? [66] There is little evidence of an intention within the prescribed time in Ms. Paulin’s first affidavit. As stated, it confirms she wasaware that the Release did not encompass her human rights. In fact, the affidavit confirms that the Release did encompass her humanrights at paragraph 6. This ​​​​​​​​​​​​​adds to the confusion on this point. [67] CBRM argues that Ms.

Paulin took no steps to seek judicial review of the Commission’s decision for four (4) years and thatthere is no reasonable excuse for this delay. They submit the delay itself is not suggestive of a bona fide intention to see a review. [68] The Commission also submits there is no evidence that Ms.

Paulin intended to seek judicial review within the prescribed time,which was 25 days after the decision of January 26, 2012 was communicated to her. [69] The Commission in support of this argument points to the record of the Commission at Tab C, which they say contains nocommunication between the Applicant and the Commission between January 25, 2012 and December 16, 2015, when Ms. Darby wroteon her behalf. [70] In her second affidavit, Ms. Paulin states that she signed the Release under duress and without legal advice. She says that shecontinued with her efforts to have the Release reviewed.

She states she was told by her mediator and the Union it would not affect hercomplaint. [71] She submits she advised the Human Rights Commission that the Release did not apply to her human rights. She does not saywhen this occurred. Further, she states she received a letter from the Commission that her matter would be held in abeyance. There is anunsigned copy of a letter dated November 14, 2011, in evidence and part of the record at Tab C, Page 33. The Commission submits thisletter was not formalized and that the subsequent letter of January 26, 2012 represents their decision. [72] Ms.

Paulin acknowledges in paragraph 16 that her complaint was in fact “dismissed” at that time. [73] In her second affidavit, Ms. Paulin attached a letter dated April 3, 2013 from her union. This letter addresses the mediation. Itdoes not mention her human rights complaint in any way. [74] Her affidavit does mention an additional grievance by her union as well as a complaint about the Union’s representation of herbefore the Labour Relations Board. Both of these matters are ongoing. [75] Clearly, Ms. Paulin was pursuing a number of avenues at that time.

It appears none of them were before the Human RightsCommission for the three (3) years between 2012 - 2015. Decision [76] There are key aspects of the evidence which determine whether the Applicant is out of time and if so, whether an extensionshould be given to allow her application. [77] I have discussed the factors the Court must consider, including facts which both favour and do not favour an extension. [78] It is useful to touch upon several cases that I find are applicable.

In my view these are instructive in placing this matter incontext. [79] In Farrell, at paragraph 13, Justice Beveridge held that the power to grant an extension of time should only be exercised if“exceptional” or “special circumstances” have been shown. (See Cromwell Bros. Ltd. v. Maritime Minerals Ltd., (NSCA), [1940] 2 D.L.R. 403 (N.S.S.C. en banc). See also Blunden et at v. Storm, (1970), (NS CA), 1 N.S.R. (2d) 621(A.D.)) [80] In Eco Awareness Society v.

Antigonish (Municipality), 2010 NSSC 461, Justice Robertson found that Rule 7.05 intended thatthe length of the delay be shortened from 6 months to 25 days, “so that challenges to statutory decision makers would be expeditiouslyheard.” In the circumstances of that case, she held that a delay of 50 days, to be a “very significant delay”. [81] In the present case the Commission has stated to this Court that there was no communication from Ms. Paulin for 3 yearsbetween 2012 and 2015. For example, the Commission says the first they heard of the Thomas letter was in January of 2016. [82] In McPhee v.

Pulpwood Marketing Board, (1986) (NS SC), 72 N.S.R. (2d) 312, 1986 CarswellNS 183(S.C.T.D.), Justice Tidman held that the 6 month time period ran from the date of the “reconsidered decision”, rather than the initialdecision. In that case there was very clearly a second decision, as the Board had agreed to reconsider its first decision. [83] In Rockwood Community Association v. Halifax (Regional Municipality), 2011 NSSC 91, Justice MacDougall found that theApplicants were waiting to gather more information.

This is not unlike the present case, where the Applicant submits her delay wasjustified so as to enable her to find information to “fix” the Release.

[84] In Rockwood, (and in Eco), the court held that waiting for a legal opinion or seeking more information is not sufficient reasonfor delay. Neither Applicant in those cases provided a persuasive reason for the delay. The 25 day time limit therefore should not beeasily displaced. (Rockwood at paragraph 48) [85] In Pritchard v. Ontario (Human Rights Commission), (ON SCDC), 45 O.R. (3d) 97, submitted by theApplicant, the Ontario Human Rights Commission applied its own policy and held that pursuing a complaint after signing a full and finalRelease, amounted to bad faith.

The applicant sought a re-consideration of the decision under the provisions of their Code. TheCommission upheld its original decision stating no new facts had been set forth. The Ontario Superior Court held that the Commissionimproperly exercised its discretion and should have given consideration to all the relevant facts of the case in determining whether theapplicant acted in bad faith. [86] I have considered Pritchard as it pertains to these motions. While there are obvious similarities, I find the legal issues are notthe same. In Pritchard the focus was on the finding of bad faith.

In the present case, the focus is on the Release and also Rule 7, whichsets out the time period as prescribed by the Civil Procedure Rules. [87] The provisions of Rule 7 are clear as to what constitutes a decision. Rule 7.01 states: 7.01 In this Rule, “decision”, includes all of the following: (

i) an action taken, or purportedly taken, under legislation, (ii) an omission to take action required, or purportedly required, by legislation, (iii) a failure to make a decision; “decision-making authority” includes anyone who makes, neglects to make, takes, or neglects to take a decision. ( emphasis added ) [88] I think very clearly the letter of January 26, 2012 represents an action taken or purportedly taken by the Commission not toproceed any further with Ms.

Paulin’s complaint. [89] I am further satisfied that the letter of February 1, 2016 is intended to confirm the earlier decision not to proceed, and containedthe reasons why the Commission could not re-open the Applicant’s file. The re-opening of the file is not the substance of the decision. The substance of the decision was the action taken in 2012, not to proceed with her file. The February 1st, 2016 letter states: Ms.

Tarr closed the file as per her letter to you dated January 26, 2012. [90] I find therefore that the decision for which judicial review is being sought is that contained in the January 12, 2012 letter from the Commission and not the letter of February 1st, 2016. The Applicant herself states in her affidavit of February 12, 2016 that the January 26th letter constituted a dismissal of her complaint. [91] As a result, I find that Ms.

Paulin’s Application is not in compliance with the time frames contained in Rule 7, either the 25days, or the later period of 6 months. [92] I turn now to offer my final decision on these motions, knowing full well each case must be determined on its own set of facts. I have considered whether exceptional circumstances exist that would warrant an extension of Ms. Paulin’s Application. I haveconsidered the factors which help determine whether justice requires an extension be given to the Applicant. [93] I am satisfied that at no time between 2012 and 2015 did Ms.

Paulin indicate to the Commission that she would be seekingjudicial review. She simply had not been heard from by the Commission. [94] The Applicant made a conscious and deliberate choice not to apply for judicial review within the requisite time frame of 25days, following receipt of the January 26, 2012 decision, or even the extended time frame of 6 months from that date. As to her reasonfor the filing years later, I have already commented on that.

I am satisfied the reason is not helpful to her in seeking an extension. [95] The most compelling evidence in her favour is that her case has not been decided on the merits before the Commission. TheCommission acknowledges this but says, it is now “too far down the road”. [96] I concur with the position of the Commission. I agree there is prejudice to it and to the Cape Breton Regional Municipality innot having the matter heard expeditiously. These events happened in 2010, and previous to that time.

Both the Commission and theMunicipality are faced with trying to unravel what has transpired in the previous 6 years. There is dispute over whether the letter ofNovember 11, 2011 was sent to Ms. Paulin. The Applicant states she received it, but a signed copy not been placed in evidence. [97] The Applicant has made able arguments through her counsel. They submitted the Commission should be estopped fromdenying judicial review of the decision, because they said as much in their letter of February 1, 2016. [98] I have considered the Applicant’s arguments of procedural fairness and estoppel.

I do not see where the Applicant was induced

by the Commission to act to her detriment. They told her she was entitled to judicial review of the decision. She however, acted to her own detriment by failing to act in a timely manner in seeking review of the Commission’s decision, when her complaint was dismissed. She acknowledges this as being the first letter sent by the Commission on January 26 th , 2012. [ 99 ] When all is said and done, the intention of the Rule must govern if finality is to be given any consideration and if the intention of the Rule is to be respected.

A delay approaching 3 – 4 years is well beyond any reasonable delay. [ 100 ] Notwithstanding the fact that human rights are special rights, the length of the delay here is glaring and simply not acceptable, if the intent for judicial reviews to be heard quickly is to be honoured. [ 101 ] The Courts in Nova Scotia have decided that waiting indefinitely, for the prospect of new information is not justified. Control over the time of judicial review does not rest in the hands of the Applicant.

That is not in keeping with what justice requires or what is intended under Rule 7 . [ 102 ] In the result, I do not find this is a proper case for me to excuse compliance with or lengthen the time period pursuant to Rule 2.03(1)(c) . I am not satisfied that exceptional or special circumstances have been shown. Conclusion [ 103 ] For all of the foregoing reasons I am allowing the Motion(

s) of the Respondents seeking an Order that the Applicant’s Notice of Judicial Review is out of time. [ 104 ] Further I am denying the Applicant’s Motion to Extend the time for her to file for judicial review in this matter. [ 105 ] The Applicant’s Application for Judicial Review is therefore dismissed, pursuant to Civil Procedure Rules 7.05(1)(

a) and 7.05(1)(b) . Murray, J.