Kelly v. Nova Scotia Human Rights Commission, 2018 NSSC 173

SUPREME COURT OF Nova Scotia Citation: Kelly v. Nova Scotia Human Rights Commission , 2018 NSSC 173 Date: 2018 09 11 Docket: Hfx No. 470027 Registry: Halifax Between: Tracey Kelly Applicant v. Nova Scotia Human Rights Commission, AC Dispensing Equipment Incorporated and Attorney General (Nova Scotia) Respondents Judge: The Honourable Justice Joshua M.

Arnold Heard: March 27, 2018, in Halifax, Nova Scotia Counsel: Laura Veniot, for the Applicant Kendrick Douglas, for the Respondent NSHRC Dennis James, for the Respondent AC Dispensing By the Court: Overview [ 1 ] Tracey Kelly filed a human rights complaint against AC Dispensing Equipment Incorporated, alleging a failure to accommodate her disability. The Human Rights Commission informed Ms. Kelly by letter that it was dismissing her complaint pursuant to s. 29(4)(

c) of the Human Rights Act, stating that “the complaint raises no significant issues of discrimination.” Ms. Kelly filed an Application for judicial review. [ 2 ] The Commission filed the Record with the court, including the Minutes relating to the decision. The Minutes indicate that the Commission dismissed Ms. Kelly’s complaint pursuant to s. 29(4)(

b) of the Act , stating “the complaint is without merit.” [ 3 ] Shortly after filing the Record with the court, the Human Rights Commission filed an affidavit from Jane Mills, Executive Assistant to the CEO of the Commission. The relevant portion of the Mills affidavit reads as follows: 3. That the ‘Commission Record’ filed with this honorable [sic] Court on January 19, 2018, contains a mistake/typo. Specifically, at Tab 1 of the Commission Record, is a letter to Ms. Kelly’s legal counsel dated September 27, 2017, advising of the Commissioner’s decision to dismiss her complaint pursuant to Section 29(4)(

c) of the Human Rights Act . The complaint, as per the Minutes for September 20-21, 2017… was actually dismissed pursuant to Section 29(4)(b) (the complaint is without merit) as opposed to the

section identified in the aforementioned letter. [Emphasis in original] [ 4 ] The Commission did not make a motion in accordance with Civil Procedure Rule 7.28 to introduce evidence beyond the record prior to filing the affidavit. Ms. Kelly objects to the introduction of Ms. Mills’ affidavit. [ 5 ] In relation to her application for judicial review, Ms. Kelly argues that the Commission breached its duty of procedural fairness in that: 1) the Commission did not provide reasons for its decision; and 2) the Commission misinterpreted its own legislation in determining whether there was a “significant issue of discrimination.” She also argues that the Commission’s decision was unreasonable.

[ 6 ] If the matter was dismissed in accordance with s. 29(4)(

b) of the Act (as indicated in the Mills affidavit), not s. 29(4)(c) (as indicated in the original letter) , certain of Ms. Kelly’s arguments on this judicial review are moot. [ 7 ] The respondents argue that Ms. Kelly has neither met the onus for establishing that the Commission breached its duty of procedural fairness, nor has she proven that dismissing the complaint was not reasonable, in the context of the Commission’s legislative mandate. Facts [ 8 ] Ms. Kelly began working for AC Dispensing in June 2010. She was disciplined at work due to absenteeism in 2012, 2013, and 2014. In late 2014, Ms.

Kelly says, she developed an anxiety issue. In 2015, she advised AC Dispensing she would need time off work. Between March and May 2015, she missed several weeks of work. On June 16, 2015, she advised AC Dispensing that she required a medical leave of absence, and the company put her on indefinite disciplinary suspension for absenteeism. She never returned to work. [ 9 ] Ms. Kelly filed a human rights complaint against AC Dispensing on June 2, 2016, alleging that she had been constructively dismissed due to a failure to accommodate her disability. [ 10 ] On September 27, 2017, the Commission informed Ms.

Kelly by letter that it was dismissing her complaint pursuant to s. 29(4) (

c) of the Act . That letter states: We are writing to advise you that the above-named complaint was discussed at the meeting of the Commissioners of the Nova Scotia Human Rights Commission held on September 20, 2017. After a thorough review of the matter, the Commissioners decided that based on the available information, the complaint is dismissed pursuant to Section 29(4)(

c) of the Human Rights Act because “the complaint raises no significant issues of discrimination” . Decisions by the Commissioners of the Nova Scotia Human Rights Commission are final. Thank you for your cooperation as the process proceeded. [ 11 ] Ms. Kelly filed an Application for Judicial Review shortly thereafter, and a Motion for Directions took place on November 29, 2017. [ 12 ] The Commission filed the Record with the court on January 19, 2018. The Minutes from the Commission hearing were included in the Record.

The Minutes of September 20-21, 2017, signed by Jane Mills, Recording Secretary, and Eunice Harker, Chair, state: Item Discussion Motion Action 7 Tracey Kelly v. A.C. Dispensing Equipment Incorporated It was moved by K. Armour and seconded by J. Boutilier that the complaint by dismissed pursuant to Section 29(4) (

b) of the Human Rights Act because the complaint is without merit. Carried Letters to be sent to parties notifying them of the decision. [ 13 ] On January 25, 2018, the Commission filed an affidavit from Jane Mills. The Mills affidavit reads as follows: I, Jane Mills, of Halifax, Nova Scotia, hereby make oath and say as follows: 1. That I am the Executive Assistant to the CEO of the Nova Scotia Human Rights Commission, and make this affidavit in relation to the Judicial Review of the within proceeding. 2.

That in addition to my role as Executive Assistant to the CEO of the Nova Scotia Human Rights Commission, I am also responsible for recording minutes at the Commissioners’ meeting(s). 3. That the ‘Commission Record’ filed with this honorable [sic] Court on January 19, 2018, contains a mistake/typo. Specifically, at Tab 1 of the Commission Record, is a letter to Ms. Kelly’s legal counsel dated September 27, 2017, advising of the Commissioners [sic] decision to dismiss her complaint pursuant to Section 29(4)(

c) of the Human Rights Act . The complaint, as per the Minutes for September 20-21, 2017, [Tab 5(a), page 25 of the Commission Record] was actually dismissed pursuant to Section 29(4)(b) (the complaint is without merit) as opposed to the

section identified in the aforementioned letter. 4. That I make this affidavit for no improper person [sic]. Positions of the Parties Regarding Admission of the Mills Affidavit Tracey Kelly [ 14 ] Ms. Kelly submits that the Court cannot consider the Mills affidavit because neither the Commission, nor AC Dispensing,

made a motion under Civil Procedure Rule 7.28 to introduce evidence beyond the record. Rule 7.10 states: 7.10 A judge hearing a motion for directions may give any directions that are necessary to organize the judicial review, including a direction that does any of the following: (

a) settles what will make up the record and whether something is part of the record; (

b) assigns responsibility to prepare, file, and deliver the record; (

c) directs the format in which the record will be produced, and whether a party must receive a paper copy of a record that is in electronic format; (

d) provides for the protection of information claimed to be privileged or otherwise subject to a confidentiality protected by law, delivery of the information to the judge who determines the claim, and maintenance of a record for review by the Court of Appeal, under Rule 85 - Access to Court Records; (

e) allows an amendment to the notice for judicial review or a notice of participation; (

f) directs whether there are interested persons who are not parties and, if necessary, adjourns the motion until an interested person is made a party or joins an interested person as a respondent; (

g) rules on the admissibility of evidence sought to be introduced at the review hearing; (

h) provides for the introduction of admissible evidence by affidavit or otherwise, and provides for any reply affidavits, cross- examination at the hearing, or cross-examination outside court with a transcript; (

i) sets deadlines for filing the record, the applicant’s brief, the respondent’s brief, and any reply brief of the applicant; (

j) directs further appearances before a judge, if necessary, and directs whether those appearances will be before the same judge and whether they will be in chambers, in conference, or at appearance day; (

k) appoints the time, date, and place for the hearing of the judicial review. [ 15 ] Rule 7.28 states: 7.28

(1) A party who proposes to introduce evidence beyond the record on a judicial review or appeal must file an affidavit describing the proposed 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 is filed, 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 orders otherwise. [ 16 ] In the alternative, Ms. Kelly submits that the Commission’s error is too significant to be characterized as merely clerical because of the unique purpose that each provision serves. She says the decision that ought to be under review arises from her complaint pursuant to s. 29(4)(c), not s. 29(4)(b). Ms. Kelly also says that s. 29(4)(

c) is substantively different from s. 29(4)(

b) because the former “assumes that the complaint has merit, but that the violation of the [ Act ] is merely technical, insignificant, and that it is not in the public interest to move forward with an inquiry.” Nova Scotia Human Rights Commission [ 17 ] The Nova Scotia Human Rights Commission argues that the Mills affidavit is not an attempt to introduce new or additional evidence beyond the record. The Commission says that its purpose is merely to correct a typographical or clerical error in the September 27, 2017, letter. AC Dispensing [ 18 ] AC Dispensing argues that, while ss. 29(4)(

b) and (

c) of the Act are not interchangeable, referencing one provision instead of the other does not change the Commission’s analytical path. Analysis [ 19 ] The Minutes of the Commission’s Board Meeting of September 20, 2017, state that Ms. Kelly’s complaint was dismissed pursuant to s. 29(4)(

b) of the Act “because the complaint is without merit.” [ 20 ] Eunice Harker, Chair of the Nova Scotia Human Rights Commission, signed a letter on September 27, 2017, dismissing Ms. Kelly’s claim pursuant to s. 29(4)(

c) of the Act , because “the complaint raises no significant issue of discrimination.” [ 21 ] The Record, containing the Minutes as well as a copy of Ms. Harker’s letter, was filed with the Court on January 19, 2018.

[ 22 ] Jane Mills, Executive Assistant to the CEO of the Nova Scotia Human Rights Commission, swore an affidavit on January 25, 2018. She states that she is responsible for taking the minutes at the Commissioners’ meetings. Ms. Mills says that Ms. Harker’s letter of September 27, 2017, contains “a mistake/typo”, in that Ms. Kelly’s complaint was actually dismissed pursuant to s. 29(4)(

b) of the Act , as the Commission Board found the complaint is without merit, as opposed to s. 29(4)(c). [ 23 ] The Minutes are the Board’s decision. Ms. Harker’s letter was meant to communicate the decision to Ms. Kelly. The affidavit of Ms. Mills discloses the clerical error in Ms. Harker’s letter. Admissibility of the Mills Affidavit The Mills Affidavit Is Not Part of The Record [ 24 ] Because the Mills affidavit was not before the Commission during its September 27, 2017 decision, it cannot constitute part of the Record that a reviewing court can consider automatically.

Its admissibility is contingent on the affidavit falling into a recognized or novel category of supplemental evidence beyond the record. [ 25 ] The Civil Procedure Rules do not define what constitutes the record on judicial review. Rule 7.10 gives judges the discretion to control what evidence forms the record: A judge hearing a motion for directions may give any directions that are necessary to organize the judicial review, including a direction that does any of the following: (

a) settles what will make up the record and whether something is part of the record; … (

g) rules on the admissibility of evidence sought to be introduced at the review hearing; … (

h) provides for the introduction of admissible evidence by affidavit or otherwise, and provides for any reply affidavits, cross- examination at the hearing, or cross-examination outside court with a transcript; [ 26 ] In IMP Group International Inc. v. Nova Scotia (Attorney General) , (2013), 336 N.S.R. (2d) 188, 2013 NSSC 332 , Stewart J. provides a comprehensive overview of the meaning of “record” under the Rules: 21 The Civil Procedure Rules do not define the "record," but the decision-making authority is required to produce it: Rule 7.09(1).

A judge hearing a motion for directions may make certain determinations about the content of the record. This provides no guidance as to how such a determination should be made. According to Sara Blake, in Administrative Law in Canada , 5th edn. (LexisNexis, 2011), at 202-203: The record that was before the tribunal is the evidence on which a court bases its review of the tribunal's action or decision ... The record must include the document that initiated the proceedings before the tribunal and the tribunal order or decision.

If relevant to the issues raised in the application for judicial review, the record may include the tribunal's reasons ..., interim rulings made by the tribunal, [and] the exhibits filed with the tribunal ... The record does not include communications for the purpose of settlement nor documents protected by deliberative secrecy or privilege such as drafts of the tribunal decision ...

The tribunal is not obliged to create new documents as the record contains only existing documents in the possession of the tribunal that were used in making the decision . [Emphasis added.] Blake goes on to say, at 204-206: Only material that was considered by the tribunal in coming to its decision is relevant on judicial review because it is not the role of the court to decide the matter anew. The court simply conducts a review of the tribunal decision. For this reason, the only evidence that is admissible before the court is the record that was before the tribunal.

Evidence that was not before the tribunal is not admissible without leave of the court . If the issue to be decided on the application involves a question of law, or concerns the tribunal's statutory authority, the court will refuse leave to file additional evidence. Evidence challenging the wisdom of the decision is not admissible ... If the applicant alleges bias, use of statutory power for an improper purpose, fraud on the tribunal, absence of evidence to support a material finding of fact or failure to follow fair procedure, the court may grant leave to file evidence proving these allegations ... ...

In exceptional circumstances, applicants may be permitted to obtain evidence by questioning the decision makers or tribunal registrar as to the process by which the tribunal made its decision, but no inquiries may be made into the deliberations of the decision makers, which are protected by deliberative secrecy ... [Emphasis added] [ 27 ] In Assn of Universities & Colleges of Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22 , [2012] F.C.J.

No. 93, Stratas J . discussed the content of the record on judicial review: 19 Because of this demarcation of roles between this Court and the Copyright Board, this Court cannot allow itself to become a forum for fact-finding on the merits of the matter. Accordingly, as a general rule, the evidentiary record before this Court on judicial review is restricted to the evidentiary record that was before the Board. In other words, evidence that was not before the Board and that goes to the merits of the matter before the Board is not admissible in an application for judicial review in this Court.

As was said by this Court in

Gitxsan Treaty Society v. Hospital Employees' Union, (FCA), [2000] 1 F.C. 135 at pages 144-45 (C.A.), "[t]heessential purpose of judicial review is the review of decisions, not the determination, by trial de novo, of questions that were notadequately canvassed in evidence at the tribunal or trial court." See also Kallies v. Canada, 2001 FCA 376 at paragraph 3; Bekker v.Canada, 2004 FCA 186 at paragraph 11. [28] In Sorflaten v. Nova Scotia (Environment), 2018 NSSC 7, [2018] N.S.J.

No. 10, Boudreau J. examined the general principlessurrounding the admissibility of beyond the record affidavit evidence on judicial review and adopted the principles outlined in IMPGroup: 14 In IMP Group International Inc. v. Nova Scotia 2013 NSSC 332: [42] The evidence at issue in Canada Life Assurance consisted of correspondence subsequent to the Minister's decision. Canada LifeAssurance was cited, along with other authorities, by the Alberta Court of Queen's Bench in White v.

Alberta (Worker's CompensationBoard, Appeals Commission), 2006 ABQB 359 , where Slatter, J said, at paras. 34-35: Since the issue on which the new evidence was tendered is not a question of law or jurisdiction, it was not the subject of the appeal, butrather was a portion of the application for judicial review. Judicial review is traditionally conducted "on the record", and fresh evidenceon the merits that was not before the tribunal is generally not permitted: Canada Life Assurance Co. v. Nova Scotia (Minister ofMunicipal Affairs) (1995), (NSSC)...; Ady v. Law Society of Alberta (1994), 1994 ABCA 353 ...

The use of affidavits on judicial review is exceptional. They can be introduced when they are needed to establish the grounds for theapplication, but not when they are intended to alter or supplement the factual record used by the tribunal to decide the issue on themerits...

Affidavits are allowed on judicial review to show bias, or some defect in the way the hearing was conducted, or sometimes thatthe decision was patently unreasonable (where that is not apparent from the record), or to show other types of reviewable error.Affidavits are not generally permitted just to show that a different decision would have been better than the one made. In thecircumstance, the appellant was not permitted to rely on the new affidavit.

Whether the decision that it is appropriate for the Appellant torelocate to find work is patently unreasonable must be decided on the evidence that was before the Appeals Commission... [29] Justice Boudreau went on to adopt the recognized exceptions to the general rule, which are outlined in Assn of Universities &Colleges of Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22, [2012] F.C.J. No. 93: 15 In Association of Universities and Colleges of Canada v.

Canadian Copyright Licensing Agency 2012 FCA 22: [20] There are a few recognized exceptions to the general rule against this Court receiving evidence in an application for judicial review,and the list of exceptions may not be closed. These exceptions exist only in situations where the receipt of evidence by this Court is notinconsistent with the differing roles of the judicial review court and the administrative decision-maker... In fact, many of theseexceptions tend to facilitate or advance the role of the judicial review court without offending the role of the administrative decision-maker.

Three such exceptions are as follows: (

a) Sometimes the court will receive an affidavit that provides general background in circumstances where that information might assistit in understanding the issues relevant to the judicial review: ... Care must be taken to ensure that the affidavit does not go further andprovide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider. In this case, the applicants invoke this exception for much of the Juliano affidavit. (

b) Sometimes affidavits are necessary to bring to the attention of the judicial review court procedural defects that cannot be found in theevidentiary record of the administrative decision-maker, so that the judicial review court can fulfill its role of reviewing for proceduralunfairness: e.g. Keeprite Workers Independent Union v. Keeprite Products Ltd. (1980) (ON CA), 29 O.R. (2d) 513(C.A.). For example, if it were discovered that one of the parties was bribing an administrative decision-maker, evidence of the bribecould be placed before this Court in support of a bias argument. (

c) Sometimes an affidavit is received on judicial review in order to highlight the complete absence of evidence before the administrativedecision-maker when it made a particular finding: Keeprite, supra. [30] In this case, the Record was filed with the court on January 19, 2018. The Minutes were contained in the Record. If that wasnot enough information to alert Ms. Kelly to the actual reasons for the dismissal of her complaint, the Mills affidavit was filed with thecourt on January 25, 2018. Ms. Harker’s September 27, 2017, letter stated that Ms. Kelly’s complaint was dismissed, albeit under theincorrect

section of the Act. When Ms. Kelly received the Record and the affidavit she was made aware of the

section the Commissionactually relied on in dismissing her complaint. She requested nothing further from the Commission, and proceeded to make argument, inpart, as if Ms. Harker’s letter was the decision, not the Minutes. This was a tactical error on her part, as the arguments relating to errorsassociated with a dismissal under s. 29(4)(

c) are irrelevant, since the dismissal was made pursuant to s. 29(4)(b), as confirmed by theMinutes. [31] The Applicant argues that the Mills affidavit changes the substance of the decision under review. She also argues thatadmitting the Mills affidavit under an exception may constructively transform this proceeding from a judicial review into an appeal. I donot agree with either proposition. Ms. Kelly had the Record (containing the Minutes), and the affidavit of Ms. Mills, for one month priorto filing her materials in this matter, but made no application for further information from Ms.

Harker, no request was made to cross-examine Ms. Mills, and she made no challenge to the accuracy of the Minutes. [32] In this case, the Mills affidavit falls under the first category outlined in Assn. of Universities which allows courts to considerevidence beyond the record to better understand the record itself. The affidavit does not alter or enhance the record in any way. Theminutes reflect the decision of the Commission: to dismiss Ms. Kelly’s complaint in accordance with s. 29(4)(b). The affidavit merelyexplains what is obvious, that a clerical error occurred when Ms.

Harker sent out her letter, erroneously referring to s. 29(4)(

c) and itsassociated wording.

[33] The Mills affidavit allows the court to better understand the existing record. The interests of justice require this court toconsider the Mills affidavit because failure to do so could result in this Court basing its decision on a clerical mistake. The affidavit ofMs. Mills is admissible. However, the Mills affidavit does not have a significant impact on this judicial review since the Minutes are thedecision of the Commission. Supplemental Reasons from Decision Maker on Judicial Review [34] Ms. Kelly argues that the Mills affidavit constitutes supplemental reasons from the Commission.

In Canada Life Assurance Cov. Nova Scotia (Minister of Municipal Affairs), (NS CA), 1996 NSCA 127, [1996] N.S.J. No. 194, the court adopted arestrictive approach to admitting supplementary reasons issued after a party files an application for judicial review. Hallett J.A said: 56 The law of Nova Scotia, as embodied in Rule 56.08 and commented on in Walker v.

Keating, Smith & Walker (1974), (NS CA), 6 N.S.R. (2d) 1 (C.A.) provides that "the record" for judicial review purposes shall include the order sought to bereviewed, the decision or reasons for judgment, the evidence and the exhibits as well as the "process commencing the proceeding." 57 In my opinion correspondence from a decision-maker which gives a retrospective insight into the mind of the decision-maker andmade subsequent to rendering the decision, should only form part of the record if provided by the decision-maker following a bona fiderequest of a party for additional reasons for judgment or if supplied voluntarily by the decision-maker such correspondence is forwardedto all the parties and it is apparent that the correspondence contains reasons for the decision.

To hold otherwise could lead to abuses assuch correspondence might be generated for a variety of ulterior or collateral motives that were not relevant to the decision made in thefirst instance. In either case, as a general rule, a decision maker should not be able to file reasons after proceedings have been commencedfor a judicial review of that decision.

Otherwise, there is too much opportunity for abuse by the decision maker to either bolster thereasons for the decision or give different reasons or, as in this case, disavow the decision by the simple expedient of filing what purportsto be additional reasons and return those to the court as a supplement to the record required to be filed under Rule 56.08. [35] However, in NAPE v.

Newfoundland & Labrador (Treasury Board), 2007 NLCA 22, 161 L.A.C. (4th) 1, the court determinedthat supplemental reasons issued later by an administrative agency can be admitted on judicial review, subject to concerns respecting‘bootstrapping’ (i.e., the agency attempting to introduce a new explanation to justify its decision in the face of a challenge).

The court inNAPE stated: 26 The appellants submit that the letter of March 18, 2005 (reproduced at para. 6, above) written to Treasury Board by the acting chairof the Classification Appeal Board should not have been considered because the Board was functus officio when the March 15, 2005decisions were sent to the parties. I agree that the principle of functus officio dictates that a judicial decision-maker has no authority toreopen a decision once it is made.

The principle also applies to administrative tribunals, though it has been suggested that it is not asstrictly applied to administrative tribunals (Chandler v. Alberta Association of Architects, (SCC), [1989] 2 S.C.R. 848).The Classification Appeal Board could not change its decision respecting the denial of the reclassification at that stage. However, I agreewith the Trial Division judge that the letter may be considered on the application for certiorari.

The letter does not represent an attemptby members of the Board to change their position but rather is more in the nature of further reasons in support of or to clarify the decisionalready given. That is acceptable from an administrative tribunal (Graphic Communications Union, Local 41M v. Ottawa Citizen et al.(1999), 128 O.A.C. 208 (Div. Ct.)). It should be noted that The Classification Review and Appeal Process (the document creating theClassification Appeal Board) has been interpreted as not requiring that reasons be given when there is a denial of the application forreclassification (NAPE v.

Newfoundland et al.). Reasons must be given when the decision results in a classification change (TheClassification Review and Appeal Process, C.25). However, it does not follow that a reviewing court should not examine the reasons,when they are given, to determine if the decision of the tribunal meets the reasonableness standard. [36] In the Applicants’ Reply Brief, they state: The Commission Chair wrote a decision, signed it, delivered it to the parties, and made no attempts to amend the decision. When thedecision was challenged in this Court, the Commission defended its decision.

The Commission cannot now completely change thenature of the decision, citing a typographical error when it has explicitly defended the decision and has made no attempt to make anamendment to the decision. [37] In this case, the Minutes are the decision. The Mills affidavit is merely a clerical correction, not substantive supplementalreasons from the Commission. It does not change the substance of the decision under review and does not constitute supplementalreasons. Communications from the Human Rights Commission [38] Much confusion has been caused by Ms.

Harker’s letter communicating the Commission’s decision, but referring to the wrongsection of the Act. In Wright v. Nova Scotia Human Rights Commission), 2017 NSSC 11, Chipman J. held that a decision of theCommission was unreasonable. In making this ruling, he stated: 38 As part of their argument, the Province suggested either s. 29(4)(

c) or (

d) could found the decision not to refer. Similarly,Commission counsel argued an error must have been made in the recording of the

section relied upon. Based upon my review of theRecord, I categorically reject these submissions. In my view, had the Commission intended to rely on an alternative section, it was openfor them to say so. They did not. Further, no evidence has been proffered to the effect that an error was made. Finally, it is apparent thatthe language of the s. 29(4)(

f) was tracked, word for word, in the board minutes and letters signed by the Commission chaircommunicating the decision to the parties. [39] Justice Chipman found that in making its decision, the Commission relied on a

section of the Act that did not make sense in thecontext, s. 29(4)(f). He determined that the Commission did not inadvertently refer to that section, in that the Minutes also referenceds.29(4)(f). If the Commission had intended to rely an alternative

section it was open to them to do so, but no evidence was proffered tothe effect that an error was made. He held that the decision was unreasonable and quashed it (paras. 39-40).

[40] In the instant case, the Commission has now proffered evidence, namely Ms. Mills’ affidavit, in an effort to correct a clericalerror. The Minutes clearly state that the Commission intended to rely on s. 29(4)(

b) of the Act, not s. 29(4)(

c) as is erroneouslyreferenced in Ms. Harker’s letter. I note that, in my view, the better procedure in this situation would be to provide evidence from theauthor of the original letter, explaining the correction, along with the Minutes and the affidavit of the author of the Minutes, confirmingthat the Minutes reflect the actual decision. Standard of Review [41] All parties agree that the standard of review is reasonableness and all refer to the common law definition of reasonableness asoutlined in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J.

No. 9, where Bastarache and LeBel JJ. said, for the majority: 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 48 The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does notrepresent a return to pre-Southam formalism. In this respect, the concept of deference, so central to judicial review in administrative law,has perhaps been insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of thecourt and a requirement of the law of judicial review.

It does not mean that courts are subservient to the determinations of decisionmakers, or that courts must show blind reverence to their

interpretations, or that they may be content to pay lip service to the concept ofreasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process ofadjudicative bodies with regard to both the facts and the law. The notion of deference "is rooted in

part in a respect for governmentaldecisions to create administrative bodies with delegated powers" (Mossop, (SCC), [1993] 1 S.C.R. 554 at p. 596, perL'Heureux-Dubé J., dissenting). We agree with David Dyzenhaus where he states that the concept of "deference as respect" requires ofthe courts "not submission but a respectful attention to the reasons offered or which could be offered in support of a decision": "ThePolitics of Deference: Judicial Review and Democracy", in M.

Taggart, ed., The Province of Administrative Law (1997), 279 at p. 286(quoted with approval in Baker, (SCC), [1999] 2 S.C.R. 817 at para. 65, per L'Heureux-Dubé J.; Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 49). 49 Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to thedeterminations of decision makers.

As Mullan explains, a policy of deference "recognizes the reality that, in many instances, thoseworking day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree ofexpertise or field sensitivity to the imperatives and nuances of the legislative regime": D. J. Mullan, "Establishing the Standard ofReview: The Struggle for Complexity?" (2004), 17 C.J.A.L.P. 59, at p. 93.

In short, deference requires respect for the legislative choicesto leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particularexpertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. 50 As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also withoutquestion that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law.

This promotesjust decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing courtwill not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysiswill bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own viewand provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct. [42] In Halifax (Regional Municipality) v.

Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] S.C.J. No. 10, CromwellJ. confirmed the Dunsmuir standard of reasonableness. Justice Cromwell said, for the court: 47 While I would use the word "reasonable" rather than "rational", I do not think there is any difference in substance between the twoformulations.

As the Court said in Dunsmuir, a result reached by an administrative tribunal is reasonable where it can be "rationallysupported": para. 41. 48 In my view, this formulation is an appropriate way to reflect, in the context of the Nova Scotia statutory scheme, both theappropriate standard of review and the judicial reluctance to intervene in relation to the Commission's decision to refer a complaint to aboard of inquiry. I reach this conclusion for several reasons. 49 First, this threshold for judicial intervention is firmly tied to the reasonableness standard of judicial review.

In the context of thebroad discretion given to the Commission to refer a complaint for inquiry, reasonableness review must focus primarily on whether thereis any basis in reason for such an inquiry. The test of any reasonable basis on the law or the evidence seems to me to appropriately reflectthis requirement. 50 Second, this formulation, in my view, is well adapted to the particular role which the legislation gives to the Commission, a rolewhich has been described by this Court as "an administrative and screening" role: Cooper, at p. 893.

While no doubt the Commission, indeciding to refer for inquiry, has some quite limited role to screen the merits of the complaint, its task is not to decide the issues whichunderlie its decision to proceed to the next stage; these are left to the board of inquiry: Zündel (2000), at para. 4. By not focussing solelyon the merits of the complaint, the formulation I propose recognizes that the Commission might decide to appoint a board of inquiry inorder to allow the board, after a full hearing, to decide a jurisdictional or other important legal point.

This would provide a reasonablebasis for the Commission's decision. 51 Third, this formulation reflects the appropriate deference to the Commission's process. Just as reasonableness requires appropriatedeference to a tribunal's decision, it also implies appropriate deference to its processes of decision-making. The proposed formulation

makes it clear that reviewing courts should be reluctant to intervene before a board of inquiry has addressed the substance of the pointswith respect to which the application for judicial review is brought. A reviewing court should take into account the benefit of having theboard's considered view of the point raised on review as well as the risks of an unnecessary multiplication of issues and delay as wascaused by premature judicial intervention in this case.

Only where there is no reasonable basis in law or on the evidence to support theCommission's decision that an inquiry by a board of inquiry is warranted in all the circumstances would it be appropriate to overcomejudicial reluctance to intervene. 52 Finally, this approach is consistent not only with case law on judicial review of decisions to refer complaints for adjudication, butalso with the modern law concerning the discretion in relation to intervening by way of judicial review in ongoing administrativeproceedings.

As to the former, I refer for example not only to Zündel (1999), but also to other cases in the federal courts in relation to thesimilarly worded powers of the Canadian Human Rights Commission to request referral of complaints to the Human Rights Tribunal:see, e.g., Bell (1999); and Canada (National Research Council) v. Zhou, 2009 FC 164 . As to the latter, I refer to decisions suchas Lorenz, Psychologist Y, C.B.

Powell, and the other cases and texts to which I referred earlier in my reasons on this point. 53 I conclude that in reviewing the Commission's decision to request appointment of a board of inquiry to inquire into thesecomplaints, the reviewing court should ask itself whether there is any reasonable basis in law or on the evidence to support that decision. Requirement for Reasons [43] Ms. Kelly complains that the Commission did not provide reasons for its decision. Our courts have addressed this issue andconfirmed that the Commission is not required to give reasons. [44] In Green v.

Nova Scotia (Human Rights Commission), 2011 NSCA 47, [2011] N.S.J.

No. 260, Oland J.A., speaking for thecourt, confirmed that the Commission is not required to provide reasons for its decisions: 30 With respect, after considering the Act, the Commission's screening function and public policy role, and the rationale behind theprovision of reasons in situations such as that which is the subject of this appeal, I am unable to accept the appellant's arguments. 31 The Legislature entrusted the Commission, which has specialized expertise in the field of human rights, to screen complaints ofalleged violations of such rights.

It authorized it to dismiss a complaint at any time for any of the reasons set out in s. 29(4), includingthat it is "without merit". 32 When a public hearing is held before a board of inquiry, s. 34A of the Act stipulates that a written decision shall be rendered withinsix months. In contrast, the Act does not contain any statutory requirement for reasons, beyond those in s. 29(4), in a screening decision.Nor does it set out a statutory right of appeal of those decisions.

That the Legislature did not do so indicates that it made a deliberatepolicy choice, namely, that the Commission need not provide fuller reasons than those in s. 29(4) of the Act when declining to refer acomplaint to a board of inquiry. Hiscock, Spurrell and Coady all drew and relied on this inference based on an examination of thestatutory provisions in similar legislation.

They decided that extensive reasons need not be given by the equivalent Commission inNewfoundland. 33 While a board of inquiry must provide reasons, it is clear that the Act did not impose that burden on the Commission beyond citingthe words of s. 29(4), when it decides whether or not to refer the complaint further. I add that the words "without merit" are notmeaningless.

They indicate that, having weighed the evidence before it, the Commission was of the view that the complaint did notwarrant referral to a board of inquiry because there is no chance the complaint will succeed. 34 Moreover, as the appellant has properly acknowledged, the decision of the Commission under appeal was made at the screeningstage. It is an administrative decision. 35 In Bell v. Canada (Canadian Human Rights Commission); Cooper v.

Canada (Canadian Human Rights Commission), (SCC), [1996] 3 S.C.R. 854, La Forest , J., writing for the majority, described the screening role of the Canadian Human RightsCommission as follows: [53] The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether acomplaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of ajudge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out.

Rather its duty is to decideif, under the provisions of the Act, an inquiry is warranted having regard to all the facts.

The central component of the Commission'srole, then, is that of assessing the sufficiency of the evidence before it. ... [Emphasis added] 36 See also Johnstone where Barnes J. at para. 12 described the central task of the Commission at the screening stage as the weighingof the sufficiency of the evidence to determine if a complaint should be referred to the next stage. 37 Furthermore, in exercising its discretion at the screening stage, the Commission must take into account not only the precise partyand party dispute before it, but also its public policy role.

This aspect of its work can require it to consider factors such as administrativeefficiency, and the avoidance of cases which bring forward similar allegations. See Garnhum v. Canada (Canadian Human RightsCommission) (re Canada (Canadian Armed Forces)), (FC), [1996] 120 F.T.R. 1, [1996] F.C.J. No. 1254 (Q.L.). 38 As to the submissions relying on the duty to give reasons where the decision is one of important significance for the individual,these have been addressed in other appeals which raised the issue of a human rights commission's duty to give reasons.

In Gardner v.Canada (Attorney General), 2005 FCA 284, the investigator's report had recommended that the Canadian Human Rights Commissionappoint a conciliator to attempt a settlement of the complaint of discrimination because of family status. The Commission departed fromthat recommendation, and dismissed the appellant's complaint because "having regard to all the circumstances of the complaint, aninquiry into the complaint is not warranted." This phrasing was taken almost verbatim from the legislative provision which set out whenthe Commission may dismiss a complaint.

39 In appealing the dismissal of her application for judicial review of that decision, the appellant in Gardner argued that theCommission had a duty to give reasons. The Federal Court of Appeal responded: [27] ... In Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, the Supreme Courtof Canada held that: [43] In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require theprovision of a written explanation for a decision.

The strong arguments demonstrating the advantages of written reasons suggest that, incases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in othercircumstances, some form of reasons should be required ... [28] But the Court recognized that there were practical reasons for providing that "... any reasons requirement under the duty of fairnessleaves sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient." (para.40).

The duty to give reasons is grounded in a person's interest in knowing why profoundly important decisions affecting them are madeas they are (para. 43).

If, as a result of an intimate involvement in the process leading to the decision, a person understands, or has themeans to understand the reason for the decision, the duty to give reasons will vary accordingly" [Emphasis added] See also Spurrell at para. 21 and 22. 40 The absence of any legislative requirement for written or extensive reasons beyond those in s. 29(4) of the Act, the omission of anyappeal process, the screening and administrative function performed by the Commission at this stage, and its inclusion of public policyconsiderations when it chooses, all support the Chambers judge's determination that the Commission is not obliged to give fuller reasonsexplaining its decision to dismiss a complaint. 41 According to the record, the Commission considered all the material, including the submissions of the parties, relating to theappellant's complaint against the University.

Its dismissal of her complaint as "without merit" falls within one of the subcategories in s.29(4) where it may exercise its discretion to dismiss. Its decision revealed not only what the Commission decided, namely, dismissal ofthe complaint, but also why, namely, having assessed the evidence, the Commission did not consider it sufficient to warrant referral to aboard of inquiry. 42 As in Gardner, the appellant here was intimately involved in the process leading to the Commission decision not to refer hercomplaint to a board of inquiry. She had not only the Investigator's Report, but the University's response.

By making written submissionin respect to that response, the appellant effectively had the last word. As a result of her active participation, she was aware of all thearguments before the Commission and had the means to know why the Commission reached the decision it did. 43 I can detect no error or injustice resulting from the Chambers judge's decision that there was no duty on the Commission to providefurther reasons for its screening decision not to refer this complaint to a board of inquiry that would support appellate intervention. Iwould dismiss this ground of appeal. [45] Ms.

Kelly complains that while Appellant in Green had both the investigator’s report and the University’s response, she had allmaterials except the response of AC Dispensing. [46] In a letter from Lianne Chang, Resolution Coordinator for the Commission, dated May 16, 2017, both Ms. Kelly and ACDispensing were provided with Ms. Chang’s Investigator’s Report, dated May, 2017. The May 16 letter made it clear that both partiescould provide written submissions to the Commission by June 6, 2017. Therefore, Ms. Kelly was fully aware that AC Dispensing couldbe providing submissions on that date.

There is no indication that she requested a copy of AC Dispensing’s submissions prior to filingher own. [47] On June 6, 2017, Ms. Kelly filed her submission, as did AC Dispensing. Ms. Kelly was an active participant in the process andwas able to file submissions after having an opportunity to review the Investigator’s Report and prior to the Commission ruling on hercase. Under s. 29(4), the Commission or the Director may dismiss the complaint at any time: 29

(4) The Commission or the Director may dismiss a complaint at any time if (

a) the best interests of the individual or class of individuals on whose behalf the complaint was made will not be served by continuingwith the complaint; (

b) the complaint is without merit; (

c) the complaint raises no significant issues of discrimination; (

d) the substance of the complaint has been appropriately dealt with pursuant to another Act or proceeding; (

e) the complaint is made in bad faith or for improper motives or is frivolous or vexatious; (

f) there is no reasonable likelihood that an investigation will reveal evidence of a contravention of this Act; or (

g) the complaint arises out of circumstances for which an exemption order has been made pursuant to

Section 9. [48] There is no requirement in the Act for a complainant to receive all submissions prior to the Commission making a decision. Failure to follow the investigator’s recommendation [49] Ms. Kelly also complains that the Commission did not follow the recommendation of its own investigator, Lianne Chang, whoconcluded that Ms. Kelly’s matter should proceed on to a Board of Inquiry. In her Investigative Report, Ms. Chang states:

63. An Investigation Report does not determine whether or not there has been discrimination. It determines if there are allegations which, if proven on a balance of probabilities, could establish discrimination on the grounds alleged in the complaint. A Board of Inquiry can only be appointed by the Human Rights Commissioners, not by Commission staff.

The appointment of a Board of Inquiry is the final internal step in the Commission’s process, and a number of factors have to be considered by the Commissioners before a Board of Inquiry is appointed, such as deciding whether or not it is in the public interest to appoint a Board of Inquiry. [ 50 ] Additionally, in her letter of May 16, 2017, Ms. Chang stated: I will then place the matter before the Commissioners who will review the file, including your submissions on my recommendation.

The Commissioners are not bound by my recommendation and will come to a decision based upon a review of all the information provided. The Commissioners may decide to refer it to a Board of Inquiry as per my recommendation, dismiss the complaint, or refer it back for further investigation. [ 51 ] The Board is not required to follow the recommendation of its investigators. As Bateman J.A. noted in Nova Scotia (Human Rights Commission) v. Annapolis County (Municipality) , 2006 NSCA 55 , [2006] N.S.J. No. 182: 24 On July 15, 2004, the Human Rights investigator filed a report with the HRC.

Noting that the Municipality had not provided adequate responses to the complainant's allegations or the Commission's questions, the investigator concluded that the complainant had not been able to establish a prima facie case of discrimination and recommended that the complaint not proceed further. The HRC is not obliged to follow the recommendation of the investigator. [ 52 ] Ms. Kelly concedes that Ms. Chang’s report states that AC Dispensing had raised a potentially valid, non-discriminatory defence, but complains that Ms. Chang did not mention anything about Ms.

Kelly’s complaint failing to raise “a significant issue of discrimination”. This is in reference to a complaint dismissed in accordance with s. 29(4)(

c) of the Act . Ms. Kelly’s complaint was actually dismissed in accordance with s. 29(4)(b), as reflected in the Minutes and confirmed by Ms. Mills’ affidavit. This alleged deficiency in Ms. Chang’s report is therefore of no significance whatsoever. Very simply, s. 29(4)(

b) allows for a complaint to be dismissed if it is found to be without merit. Conclusion [ 53 ] Considering the governing legislation, having reviewed the Record, the decision of the Commission is justified, transparent and intelligible. The decision to dismiss the complaint in accordance with s. 29(4)(

b) was within the range of reasonable outcomes and constitutes a reasonable decision. [ 54 ] Significant deference must be shown to the Commission’s decision-making and screening process. In reviewing the Record, the Commission’s investigation was neutral and thorough. Ms. Kelly was provided an opportunity to participate in the process, and she did. She had the investigator’s report prior to finalizing her submissions to the Board and was able to make comments about the report. [ 55 ] The Commissioner’s decision to dismiss the complaint in accordance with s.29(4)(

b) was justified based on the Record. The Board’s decision was within the range of reasonable outcomes. [ 56 ] Ms. Kelly’s application is dismissed. Arnold, J.