The Nova Scotia Court of Appeal held that neither the Nova Scotia Human Rights Commission, nor its Director, had authority, either expressed or implied, to delegate the Nova Scotia Ombudsman the responsibilities imposed on the Commission pursuant to the Nova Scotia Human Rights Act, R.S.N.S. 1989, c. 214

23. July 2002 0

Dalhousie University v. Aylward, [2002] N.S.J. No. 267, Nova Scotia Court of Appeal, May 30, 2002, Glube C.J.N.S., Hallett and Freeman, JJ.A.

The Nova Scotia Human Rights Commission received a letter on August 26, 1999 stating that a professor from Dalhousie University was intending to file a complaint based on racial discrimination, however, but that due to the relationship that she had with the Commission, she felt that there was no way that the Commission could hear the complaint due to a conflict situation. The potential complainant requested that the entire complaint from intake to investigation be handled by a Human Rights Commission outside the Atlantic region. The Executive Director of the Commission referred the matter to the office of the Ombudsman. The Ombudsman then entered into discussions with the Ontario Human Rights Commission to have the Commission deal with the complaints. On April 3, 2000, the professor’s complaint was filed with the Ontario Human Rights Commission. On October 27, 2000 representatives of the law school filed an originating Notice of Motion in the Supreme Court of Nova Scotia seeking an order in the nature of certiorari to quash and set aside the decision of the Nova Scotia Human Rights Commission to refer the matter to the Ombudsman. The application was heard by Justice Scanlan on March 1, 2000. Justice Scanlan held that the Nova Scotia Commission had no statutory authority to delegate the power to investigate or hear the complaint. Professor Aylward appealed Justice Scanlan’s decision to the Court of Appeal. The Court of Appeal noted that Professor Aylward had not filed a written complaint with the Commission on or before September 29, 1999, when the Executive Director of the Commission engaged the services of the Nova Scotia Ombudsman. The court held that once a complaint is received the Commission can appoint a Board of Inquiry. In this case, the Commission acted before a complaint had been received, and for this reason it had no authority to do so. Furthermore, the court held that the Executive Director did more than simply authorize the Ombudsman to investigate the matter, but rather, the Executive Director intended to and did delegate to the Ombudsman the duty of handling the complaint, including the power to determine what independent body would investigate the complaint. There is nothing in the Act that empowers the Executive Director to delegate her duty to endeavour to effect the settlement to the Ombudsman. The court held that Justice Scanlan did not err in granting the Order dated May 9, 2001. The appeal was dismissed with costs to the “Dalhousie Respondents”.

To stay current with the new case law and emerging legal issues in this area, subscribe here.