Supreme Court of Canada Confirms Reviewing Courts Should Give Due Deference to Administrative Decision-Makers Even At Early Stage of Process
July 10, 2012
By Malcolm Boyle, QC, Lawyer at McInnes Cooper,
Katie Roebothan, Former Lawyer at McInnes Cooper
On March 16, 2012, the Supreme Court of Canada (“SCC”) confirmed the decision of the N.S. Court of Appeal, reinstating the N.S. Human Rights Commission’s decision to appoint a Board of Inquiry to decide a discrimination complaint. The SCC’s decision in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) has the practical effect of increasing the amount of deference courts must show toward the decisions of administrative decision-makers (like human rights commissions), making it more difficult to challenge those decisions in court. As a result, employers should take appropriate steps to avoid human rights complaints generally, and vigorously defend themselves in any administrative proceedings if complaints occur.
Click here to read McInnes Cooper’s March 20, 2012 Legal Alert, “Supreme Court of Canada Defers to Human Rights Commission Decisions at Early Stage of Process”.
In the ‘90’s, several Halifax area municipalities amalgamated, creating the Halifax Regional Municipality; the affected school boards were also amalgamated. The N.S. municipalities legislation required the new Municipality to maintain supplementary funding among the schools that had received this funding prior to the amalgamation. Around the same time, the Province enacted legislation creating a new school board governing French-first-language schools throughout N.S. There was no legislation in place requiring the Municipality to provide French-first-language schools with supplementary funding; as a result, it did not do so.
COMPLAINT AND COMMISSION DECISION
Mr. Comeau’s children attended a Halifax French-first-language school. He filed complaints with the N.S. Human Rights Commission, saying the funding arrangements for the French-first language schools discriminated against him and his family based on ethnic origin (Acadian). At around the same time, another group of affected parents sued the Province, claiming the funding arrangements violated the Charter of Rights and Freedoms; as a result, the Province amended its municipalities legislation to provide funding for French-first language schools and the parties involved signed a consent order dismissing the Charter action. Mr. Comeau’s human rights complaints, however, proceeded.
The Commission investigated Mr. Comeau’s complaints and decided to refer them to a Board of Inquiry for a hearing and decision. The Municipality successfully asked the N.S. Supreme Court to quash the Commission’s decision.
REVIEW AND APPEALS
The N.S. Supreme Court decided the Commission’s decision to appoint a Board of Inquiry amounted to a decision about its jurisdiction, and therefore in order for the Commission’s decision to be upheld it had to be “correct” and not merely “reasonable”. In reviewing the Commission’s decision, the Court decided the Commission did not have the jurisdiction to hear Mr. Comeau’s complaints because they lacked certain necessary elements to be decided under the Human Rights Act. The Court further decided there was no benefit to proceeding to a full hearing before the Board of Inquiry. Based in part on a 1971 SCC decision (Bell v. Ontario (Human Rights Commission)), the Court chose to intervene at this preliminary stage of the human rights complaint process, and prevent the Board of Inquiry from hearing Mr. Comeau’s complaints. Click here to read the N.S. Supreme Court’s decision.
Mr. Comeau and the Commission successfully appealed the N.S. Supreme Court’s decision.
The N.S. Court of Appeal found that superior courts (like the N.S. Supreme Court) should exercise restraint in intervening at the early stages of an administrative proceeding (like that under the Human Rights Act) and should ask whether it is “clear and beyond doubt” that the tribunal does not have jurisdiction to decide the disputed issues. Applying this approach, the Court of Appeal found the N.S. Supreme Court made two fundamental errors. First, it mischaracterized the complaints as solely about legislative reform; second, it incorrectly found the Commission’s decision to refer the complaints to a Board of Inquiry was a decision about its jurisdiction when the Commission had simply decided to advance the matter to the next step. As a result of mischaracterizing the Commission’s decision as one of jurisdiction, the Court failed to give the Commission’s decision any deference, further compounding this second error. The Court of Appeal found the N.S. Supreme Court erroneously required the Commission’s decision to be “correct”, instead of requiring it to be “reasonable”. The Court of Appeal concluded it was not “clear and beyond doubt” that the Board of Inquiry did not have jurisdiction to hear Mr. Comeau’s complaint, and effectively reinstated the Commission’s decision. Click here to read the N.S. Court of Appeal’s decision.
The SCC agreed to hear the Municipality’s appeal of the N.S. Court of Appeal’s decision.
SUPREME COURT OF CANADA
The SCC found the Commission’s decision to refer Mr. Comeau’s complaint to a Board of Inquiry was not a determination of its jurisdiction; instead, it was a discretionary decision, and thus had only to be “reasonable”, not “correct”. The SCC further held that courts should no longer follow the approach to preliminary questions of jurisdiction that it had taken in Bell. Accordingly, the SCC held the N.S. Supreme Court should have exercised restraint in intervening to prevent the Board of Inquiry from determining whether Mr. Comeau’s complaint was within the scope of the Human Rights Act.
The SCC said that when a court is reviewing the Commission’s decision to refer a complaint to a Board of Inquiry, it should ask “whether there is any reasonable basis in law or on the evidence to support that decision.” Here, the SCC found the investigator’s reports and the surrounding circumstances “provided a reasonable basis for the Commission to refer Mr. Comeau’s novel and complex complaints to a board of inquiry.” Thus, the SCC agreed with the N.S. Court of Appeal, and effectively reinstated the Commission’s original decision.
Click here to read the SCC’s decision.
The SCC was clear that its decision was intended to “ensure [a] reviewing court gives due deference to the administrative decision-maker”. Here, the administrative decision-maker was the N.S. Human Rights Commission; however, the effect of this direction extends beyond to all administrative decision-makers.
Further, the SCC was clear that such deference will apply even at the earliest stages of the administrative process in question. Again, while this case concerned a human rights commission, the SCC’s direction to courts to exercise such restraint applies to the decisions of all types of administrative decision-makers. To reach this conclusion the SCC overruled its own decision in Bell v. Ontario (Human Rights Commission), on which the N.S. Supreme Court had relied to intervene, to the extent it set out the proper approach to questions of preliminary jurisdiction. Even prior to this 2012 SCC decision, the authoritativeness of the SCC’s approach in Bell had eroded based on judicial decisions cautioning against this approach.
The N.S. Human Rights Board of Inquiry’s determination of Mr. Comeau’s complaints remains to be seen. However, as a result of the SCC’s direction to courts reviewing administrative decisions to defer to the administrative-decision maker, even at the preliminary stages of the proceeding, the decisions of such administrative bodies are more likely to be the final word. For employers, this means it will likely be far more difficult to challenge an administrative body’s decisions in court. Thus:
- It is important for employers to take appropriate steps to prevent human rights complaints in the workplace in the first place. These steps include implementing and training employees on anti-harassment and anti-discrimination policies, which will help to prevent complaints, and to manage and respond to any complaints so they can be resolved before resulting in a formal complaint and a full hearing before a Board of Inquiry; and
- If a matter does reach an administrative body for a decision, employers need to fight hard at all stages of the administrative hearing, because it will be very difficult for an unsuccessful employer to later challenge the administrative decision-maker’s decision in court. Legal advice at the administrative hearing stage of the process will therefore be of significant value to employers.
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