The Ingamo Hall Friendship Centre (“Ingamo”) appealed from a decision of the Fair Practices Officer in which Bergeron’s complaint of discrimination was allowed and damages for the lost wages and humiliation were awarded. The court allowed the appeal and overturned the decision of the Fair Practices Officer.

Administrative law – Human rights complaints – Discrimination – Race – Employment law – Termination of employment – Decisions of administrative tribunals – Fair Practices Officer – Judicial review – Evidence – Standard of review – Correctness

Ingamo Hall Friendship Centre v. Bergeron, [2003] N.W.T.J. No. 51, Northwest Territories Supreme Court, July 30, 2003, Vertes J.

Bergeron, who was of French Canadian origin, had been employed by Ingamo, whose employees were otherwise entirely Aboriginal. However, in August of 2000, a Ms. Jamie White-Stewart was hired by Ingamo as a program co-ordinator and was the direct supervisor to Bergeron. Conflicts immediately began to develop between the two, germinating from a lack of communication between the supervisor and Bergeron. Bergeron ultimately made internal complaints, and Ingamo arranged for two mediation sessions to be conducted between Ms. White-Stewart and Bergeron. In April of 2001, Bergeron was terminated from her employment at Ingamo by way of a letter which referred to a “lay-off” due to a lack of funding. There was some evidence before the Fair Practices Officer that the cutback in funding was in fact coincident with the termination of Bergeron’s employment. Bergeron was provided with two weeks’ severance pay.

Bergeron then complained to the Fair Practices Officer, whose authority arises from the Fair Practices Act, R.S.N.W.T. 1988, c. F‑2, which provides in section 3(1) that:

No employer shall refuse to employ or refuse to continue to employ a person or adversely discriminate in any term or condition of employment of any person because of the race, creed, colour, sex, marital status, nationality, ancestry, place of origin, disability, age or family status of that person or because of a conviction of that person for which a pardon has been granted.

Bergeron’s complaint specified that Ms. White-Stewart had made racist and disparaging remarks about “white people” in her presence, including stating that she “hated white social workers”. The Fair Practices Officer directed a hearing, awarded Bergeron $5,000 in damages and required Ingamo to develop and implement non-discrimination policy.

On appeal, the court held that although the Fair Practices Act provided a broad right of appeal by way of trial de novo from any order or decision of a Fair Practices Officer, the court was still mandated by the decisions in Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17, and Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18, to use the pragmatic and functional approach in conducting a review of the Fair Practices Officer’s decision. The broad right of appeal on all issues of facts and law indicated that less deference should be due to the original decision maker and that further, there were no requirements that the Fair Practices Officer have any special expertise relative to that of the court. Correctness was found to be the proper standard of review in accordance with the purpose of the Act, and given that the type of appeal contemplated by the Fair Practices Act.

In considering the merits of the appeal, the court used the definition of discrimination as set out in Parsonage v. Canadian Tire Corp. (1995), 28 C.H.R.R. D/5, and reviewed the law with respect to discrimination and the burden of proof in cases involving discrimination.

The court held that, upon a review of all of the evidence, it could not be satisfied on a balance of probabilities that any acts of discrimination actually occurred. The termination of Bergeron’s employment was due to financial cutbacks, and was also a dismissal for alleged cause (insubordination). Although the evidence revealed a history of difficulties between Ms. White-Stewart and Bergeron, no particulars of any alleged discriminatory acts were given until Bergeron had already sent numerous communications which made no allegation of discrimination or racism against Ms. White-Stewart.

The court went on to say that even if certain comments were made by Ms. White-Stewart, it was incumbent on the Fair Practices Officer to consider whether these were isolated remarks or whether they demonstrated discriminatory bias. An isolated comment does not necessarily amount to a violation of the Fair Practices Act (Parsonage).

The appeal was allowed and the decision of the Fair Practices Officer set aside.

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