Moore’s complaint under the Human Rights Act, R.S.N.S. 1989, c. 214 alleging discrimination by reason of race was dismissed by a Board of Inquiry constituted under the Act. The Board held that the fact that Moore’s employer had called her “kemosabe” did not establish harassment or discrimination where Moore could not prove that she had made known that this appellation was offensive to her. Moore’s appeal to the Court of Appeal was dismissed as the court concluded that the Board had not erred in the burden it placed upon Moore to prove her case.

Administrative law – Human rights complaints – Discrimination – Race – Decisions of administrative tribunals – Human Rights – Burden of proof

Nova Scotia (Human Rights Commission) v. Play It Again Sports Ltd., [2004] N.S.J. No. 403, Nova Scotia Court of Appeal, October 29, 2004, Glube C.J.N.S., Chipman and Hamilton JJ.A.

Moore, a Mi’kmaq, had been employed at a retail sports outlet owned by Muller. On October 15, 1999, Moore left her employment and filed a complaint under the Human Rights Act, alleging that she had left her employment because, among other things, she had been discriminated against by reason of her race in that she had been subjected to a poisoned work environment by reason of being called “kemosabe” by Muller. This term had been used as a greeting in the Lone Ranger television series.

Moore’s complaint was dismissed by a Board of Inquiry appointed pursuant to the provisions of the Act. The Board found that Moore had voluntarily quit her employment at a time when she was most probably suffering some form of breakdown. With respect to the appellation “kemosabe”, the Board examined the evidence, including the showing of episodes from the Lone Ranger series, and concluded that the evidence was contradictory on whether the use of the appellation “kemosabe” was in and of itself considered a racial slur by members of the Mi’kmaq nation. The Board concluded that, in the circumstances, Muller could not know that Moore considered it a racial slur “absent some clear and unequivocal indication thereof”. The Board concluded that Moore did not give any such indication and further concluded that she was not, in fact, offended by the term. Moore’s complaint was dismissed by the Board.

An appeal was taken to the Nova Scotia Court of Appeal by Moore and the Nova Scotia Human Rights Commission. One of the grounds of appeal was whether or not the Board erred in law in determining the burden which rested on Moore to establish her case.

The Court of Appeal reviewed the evidence with respect to the appellation “kemosabe” and noted that the Board found that the evidence before it on whether or not this appellation was offensive was contradictory. The court held that the Board’s characterization of the word as having no more than the capacity to hold an offensive meaning to Moore was a fair conclusion from the evidence. The court further noted that where the quality of an utterance lies in the eye of the beholder, it is not unreasonable to require that the beholder make known that the conduct was offensive to him or her.

The court was unable to conclude that the Board set too high a standard by holding that Moore should have clearly and unequivocally shown her disapproval of the use of the term, if in fact she had disapproved. The court held that the Board had not erred in placing the civil burden of proof upon Moore requiring her to establish that she had given some clear and unequivocal indication of her rejection of the appellation “kemosabe”.

In the result, Moore’s appeal was dismissed.

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