Halifax v. HRC (2012), 316 N.S.R.(2d) 1 (SCC);
1002 A.P.R. 1
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2012] N.S.R.(2d) TBEd. AP.001
Halifax Regional Municipality, a body corporate duly incorporated pursuant to the laws of Nova Scotia (appellant) v. Nova Scotia Human Rights Commission, Lucien Comeau, Lynn Connors and Her Majesty the Queen in Right of the Province of Nova Scotia (respondents) and Canadian Human Rights Commission (intervenor)
(33651; 2012 SCC 10; 2012 CSC 10)
Indexed As: Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al.
Supreme Court of Canada
McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell, JJ.
March 16, 2012.
Summary:
Comeau complained to the Nova Scotia Human Rights Commission that the funding arrangements for the French-first-language schools in Halifax discriminated against him and his children on the basis of their Acadian ethnic origin. The Commission requested the appointment of a board of inquiry to deal with Comeau’s complaints. Shortly thereafter, an amendment to the Municipal Government Act (N.S.) provided for supplementary funding for schools of the Conseil scolaire acadien provincial (“Conseil”) in Halifax and a Charter challenge brought by other parents of children in Conseil schools was settled. Halifax applied for orders quashing the Commission’s decision to refer Comeau’s complaint to a board of inquiry and prohibiting the board of inquiry from proceeding.
The Nova Scotia Supreme Court, in a decision reported at (2009), 273 N.S.R.(2d) 258; 872 A.P.R. 258, granted the application. The chambers judge was of the view that, through the referral decision, the Commission had decided that the complaint fell under the Human Rights Act (N.S.), and that determination was one of jurisdiction subject to a correctness standard of review. The judge concluded that the absence of jurisdiction was clear and there would be no benefit from a fuller inquiry by the board. Relying in part on Bell v. Ontario (Human Rights Commission) (SCC 1971) (“Bell”), the judge decided that it was appropriate to intervene at this early stage and prohibit the board of inquiry from embarking on an ultimately fruitless proceeding. The Commission and Comeau appealed.
The Nova Scotia Court of Appeal, in a decision reported at (2010), 287 N.S.R.(2d) 329; 912 A.P.R. 329, allowed the appeal and reinstated the board of inquiry. Halifax appealed. The appeal raised two issues. The first concerned the standard of review of the Commission’s decision to refer the complaint to a board of inquiry. The second was whether, applying that standard of judicial review, the Commission made any reviewable error in appointing the board of inquiry.
The Supreme Court of Canada dismissed the appeal. The court held that the Commission’s decision was not a determination of its jurisdiction, but rather a discretionary decision that an inquiry was warranted in all of the circumstances. That discretionary decision should be reviewed for reasonableness. The reasonableness standard of review, applied in the context of proposed judicial intervention at this preliminary stage of the Commission’s work, could be expressed as follows: was there a reasonable basis in law or on the evidence for the Commission’s conclusion that an inquiry was warranted. The court concluded that there was a reasonable basis for the Commission to be satisfied that an inquiry was warranted in all of the circumstances. The court accepted the decision in Bell to the extent that it stood for the proposition that referral decisions such as the one at issue in this case were subject to judicial review. However, beyond that, Bell should no longer be relied on.
Administrative Law – Topic 3221
Judicial review – General – Unreasonableness of decision attacked (incl. reasonableness simpliciter) – [See second
Civil Rights – Topic 7069.02
].
Administrative Law – Topic 6443
Judicial review – Prohibition – Grounds for granting order – Lack of initial jurisdiction – [See first
Civil Rights – Topic 7069.02
].
Civil Rights – Topic 7069.02
Federal, provincial or territorial legislation – Commissions or boards – Jurisdiction – Complaints – Decision to request board of inquiry – Comeau complained to the Nova Scotia Human Rights Commission that the funding arrangements for the French-first-language schools in Halifax discriminated against him and his children on the basis of their Acadian ethnic origin – The Commission requested the appointment of a board of inquiry to deal with Comeau’s complaints – Shortly thereafter, an amendment to the Municipal Government Act (N.S.) provided for supplementary funding for schools of the Conseil scolaire acadien provincial (“Conseil”) in Halifax and a Charter challenge brought by other parents of children in Conseil schools was settled – Halifax applied to quash the Commission’s decision to refer Comeau’s complaint to a board of inquiry and prohibit the board of inquiry from proceeding – The application was granted – The chambers judge held that, through the referral decision, the Commission had decided that the complaint fell under the Human Rights Act (N.S.), and that determination was one of jurisdiction subject to a correctness standard of review – The judge concluded that the absence of jurisdiction was clear and there would be no benefit from a fuller inquiry by the board – Relying in part on Bell v. Ontario (Human Rights Commission) (SCC 1971) (“Bell”), the judge decided that it was appropriate to intervene at this early stage and prohibit the board from embarking on an ultimately fruitless proceeding – The Commission and Comeau appealed – The Nova Scotia Court of Appeal allowed the appeal and reinstated the board of inquiry – Halifax appealed – The Supreme Court of Canada dismissed the appeal – The Commission’s decision was not a determination of its jurisdiction, but rather a discretionary decision that an inquiry was warranted in all of the circumstances – That discretionary decision should be reviewed for reasonableness – The reasonableness standard of review, applied in the context of proposed judicial intervention at this preliminary stage of the Commission’s work, could be expressed as follows: was there a reasonable basis in law or on the evidence for the Commission’s conclusion that an inquiry was warranted – The court concluded that there was a reasonable basis, provided primarily by the novelty and complexity of Comeau’s complaints, for the Commission to be satisfied that an inquiry was warranted in all of the circumstances – The court accepted Bell to the extent that it stood for the proposition that referral decisions such as the one at issue in this case were subject to judicial review – However, beyond that, Bell should no longer be relied on – The court stated that “Bell (1971) should no longer be followed in relation to its approach to preliminary jurisdictional questions or when judicial intervention is justified in an ongoing administrative process”.
Civil Rights – Topic 7069.02
Federal, provincial or territorial legislation – Commissions or boards – Jurisdiction – Complaints – Decision to request board of inquiry – The Supreme Court of Canada found that a decision of the Nova Scotia Human Rights Commission to refer a complaint to a board of inquiry should be reviewed for reasonableness – The court stated that “Reasonableness is a concept that must be applied in the particular context under review. The range of acceptable and rational solutions depends on the context of the particular type of decision making involved and all relevant factors. … As was said in Khosa, reasonableness is a single concept that ‘takes its colour’ from the particular context: para. 59. In this case, both the nature of the Commission’s role in deciding to move to a board of inquiry and the place of that decision in the Commission’s process are important aspects of that context and must be taken into account in applying the reasonableness standard. In my view, the reviewing court should ask whether there was any reasonable basis on the law or the evidence for the Commission’s decision to refer the complaint to a board of inquiry. This formulation seems to me to bring together the two aspects of the jurisprudence to ensure that both the decision and the process are treated with appropriate judicial deference” – See paragraphs 44 to 45.
Civil Rights – Topic 7069.02
Federal, provincial or territorial legislation – Commissions or boards – Jurisdiction – Complaints – Decision to request board of inquiry – The Supreme Court of Canada stated that “The [Nova Scotia Human Rights] Commission’s decision to refer a complaint to a board of inquiry is not a determination of whether the complaint falls within the [Human Right] Act. Rather, within the scheme of the Act, the Commission plays an initial screening and administrative role; it may, for example, decide to refer a complaint to a board of inquiry so that the board can resolve a jurisdictional matter” – Further, “What is important here is that a decision to refer a complaint to a board of inquiry is not a determination that the complaint is well founded or even within the purview of the Act. Those determinations may be made by the board of inquiry. In deciding to refer a complaint to a board of inquiry, the Commission’s function is one of screening and administration, not of adjudication” – See paragraphs 19 and 23.
Civil Rights – Topic 7082
Federal, provincial or territorial legislation – Boards of inquiry – Jurisdiction – [See first
Civil Rights – Topic 7069.02
].
Civil Rights – Topic 7115
Federal, provincial or territorial legislation – Practice – Judicial review (incl. standard of review) – [See first and second
Civil Rights – Topic 7069.02
].
Cases Noticed:
Bell v. Human Rights Commission (Ont.), [1971] S.C.R. 756, overruled [para. 12].
Cowan et al. v. Aylward et al. (2002), 205 N.S.R.(2d) 324; 643 A.P.R. 324; 2002 NSCA 76, refd to. [para. 24].
Green v. Human Rights Commission (N.S.) et al.(2011), 303 N.S.R.(2d) 211; 957 A.P.R. 211; 2011 NSCA 47, refd to. [para. 24].
Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 24].
Zündel v. Canada (Attorney General) et al., [1999] 4 F.C. 289; 170 F.T.R. 194 (T.D.), affd. (2000), 267 N.R. 92; 195 D.L.R.(4th) 394 (F.C.A.), refd to. [para. 24].
Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al., [1999] 1 F.C. 113; 233 N.R. 87 (F.C.A.), refd to. [para. 24].
Syndicat des employés de production du Québec et de l’Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 24].
Losenno v. Human Rights Commission (Ont.) et al. (2005), 203 O.A.C. 149; 78 O.R.(3d) 161 (C.A.), refd to. [para. 26].
New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 27].
R. v. Tarnopolsky,Ex parte Bell, [1970] 2 O.R. 672 (C.A.), refd to. [para. 29].
R. v. Tottenham and District Rent Tribunal, Ex. p. Northfield (Highgate) Ltd., [1957] 1 Q.B. 103, refd to. [para. 30].
R. v. Bernard, [1988] 2 S.C.R. 833; 90 N.R. 321; 32 O.A.C. 161, refd to. [para. 33].
R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 33].
Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 34].
Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 34].
Syndicat national des employés de la commission scolaire régionale de l’Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 34].
Union des employés de service, local 298 v. Bibeault – see Syndicat national des employés de la commission scolaire régionale de l’Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).
Powell (C.B.) Ltd. v. Canada Border Services Agency (President) et al. (2010), 400 N.R. 367; 2010 FCA 61, refd to. [para. 34].
Human Rights Commission (Ont.) and O’Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 34].
Restrictive Trade Practices Commission et al. v. Irvine et al., [1987] 1 S.C.R. 181; 74 N.R. 33, refd to. [para. 35].
Canada (Attorney General) v. Royal Commission of Inquiry on the Blood System in Canada et al., [1997] 3 S.C.R. 440; 216 N.R. 321, refd to. [para. 35].
Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 35].
Violette v. New Brunswick Dental Society (2004), 267 N.B.R.(2d) 205; 702 A.P.R. 205; 2004 NBCA 1, refd to. [para. 35].
Air Canada v. Lorenz et al., [2000] 1 F.C. 494; 175 F.T.R. 211 (T.D.), refd to. [para. 35].
Szczecka v. Ministre de l’Emploi et de l’Immigration (1993), 170 N.R. 58 (F.C.A.), refd to. [para. 36].
Psychologist Y v. Board of Examiners in Psychology (N.S.) (2005), 236 N.S.R.(2d) 273; 749 A.P.R. 273; 2005 NSCA 116, refd to. [para. 36].
Potter v. Nova Scotia Securities Commission (2006), 246 N.S.R.(2d) 1; 780 A.P.R. 1; 2006 NSCA 45, refd to. [para. 36].
Vancouver (City) v. Assessment Appeal Board (B.C.) et al. (1996), 76 B.C.A.C. 42; 125 W.A.C. 42; 135 D.L.R.(4th) 48 (C.A.), refd to. [para. 36].
Mondesir v. Manitoba Association of Optometrists (1998), 129 Man.R.(2d) 96; 180 W.A.C. 96; 163 D.L.R.(4th) 703 (C.A.), refd to. [para. 36].
Wal-Mart Canada Corp. v. United Food and Commercial Workers, Local 1400 et al. (2010), 359 Sask.R. 131; 494 W.A.C. 131; 321 D.L.R.(4th) 397; 2010 SKCA 89. refd to. [para. 36].
VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 37].
Alberta Teachers’ Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 519 A.R. 1; 539 W.A.C. 1; 424 N.R. 70; 2011 SCC 61, refd to. [para. 37].
Catalyst Paper Corp. v. North Cowichan (District) (2012), 425 N.R. 22; 2012 SCC 2, refd to. [para. 44].
National Research Council of Canada v. Zhou, [2009] F.T.R. Uned. 129; 2009 FC 164, refd to. [para. 52].
Statutes Noticed:
Boards of Inquiry Regulations – see Human Rights Act Regulations (N.S.).
Human Rights Act, R.S.N.S. 1989, c. 214, sect. 29 [para. 20]; sect. 32A(1) [para. 21].
Human Rights Act Regulations (N.S.), Boards of Inquiry Regulations, N.S. Reg. 221/91, sect. 1 [para. 25].
Authors and Works Noticed:
Brown, Donald J.M., and Evans, John. M., Judicial Review of Administrative Action in Canada (1988) (looseleaf updated August 2011), paras. 1:2240, 3:4100 [para. 36]; 3:4400 [paras. 34, 36, 37].
Lemieux, Pierre., Droit Administratif: Doctrine et jurisprudence (5th Ed. 2011), pp. 371, 372 [para. 36].
Mullan, David J., Administrative Law (2001), pp. 57 [para. 34]; 58 [paras. 34, 36]; 61 to 65 [para. 34].
Mullan, David J., Administrative Law (3rd Ed. 1996), ྷ540 [para. 36].
Counsel:
Randolph Kinghorne and Karen L. Brown, for the appellant;
John P. Merrick, Q.C., and Kelly L. Buffett, for the respondent, the Nova Scotia Human Rights Commission;
Michel Doucet, Mark C. Power and Jean-Pierre Hachey, for the respondent, Lucien Comeau;
Edward A. Gores, Q.C., for the respondent, Her Majesty the Queen in Right of the Province of Nova Scotia;
No one appeared for the respondent, Lynn Connors;
Philippe Dufresne, for the intervener, the Canadian Human Rights Commission.
Solicitors of Record:
Halifax Regional Municipality, Halifax, Nova Scotia, for the appellant;
Merrick Jamieson Sterns Washington & Mahody, Halifax, Nova Scotia, for the respondent, the Nova Scotia Human Rights Commission;
Université de Moncton, Moncton, New Brunswick, for the respondent, Lucien Comeau;
Attorney General of Nova Scotia, Halifax, Nova Scotia, for the respondent, Her Majesty the Queen in Right of the Province of Nova Scotia;
Canadian Human Rights Commission, Ottawa, Ontario, for the intervener, the Canadian Human Rights Commission.
This appeal was heard on October 19, 2011, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by Cromwell, J., on March 16, 2012.
