The Nova Scotia Construction Safety Association (the “Association”) appealed from the decision of the Human Rights Commission awarding damages to an employee, Karen Davison (“Davison”), who successfully obtained an award for damages for incidents of sexual harassment during the course of her employment. The appeal was dismissed except that the Order of the Human Rights Board of Inquiry that exemplary damages should be awarded against the Association was overturned.

25. July 2006 0

Administrative law – Human rights complaints – Sexual harassment – Gender – Decisions of administrative tribunals – Human Rights Commission – Damages – Judicial review – Delay – Evidence – Procedural requirements and fairness – Abuse of process – test – Standard of review – Reasonableness simpliciter

Nova Scotia Construction Safety Assn. v. Nova Scotia (Human Rights Commission), [2006] N.S.J. No. 210, Nova Scotia Court of Appeal, May 19, 2006, T.A. Cromwell, J.W.S. Saunders and M.J. Hamilton JJ.A.

Davison complained to the Nova Scotia Human Rights Commission that her human rights had been violated by repeated acts of gender and sexual harassment as well as retaliatory action when she brought her complaint forward to the authorities. There were significant delays in having the complaint dealt with. The Commission took three years after the filing of the complaint to prepare its initial investigation report, and more than five years after the events occurred, the complaint was referred to a Board of Inquiry. Hearings then took place and nearly two years elapsed without a decision being issued. The Association applied for an Order of mandamus to compel the Board to release its decision. Nine years after the events allegedly occurred, the Board issued its written Reasons. The reviewing Court did not find that the delays disclosed an error warranting intervention by the Court.

The Board ordered that the Association and its individual employees take sensitivity training with respect to discrimination and the harmful effects of retaliation of actual or proposed human rights complaints.

Orders were also made that the Association would allow the Human Rights Commission to monitor their employment practices for a period of three years following the decision and general damages in the total sum of $13,000 were awarded. $7,000 in exemplary damages were also awarded by the Board of Inquiry.

The Court of Appeal considered the question of standard of review and found that there was no privative clause in the Human Rights Act but that the Board was given broad powers to interpret the Act to determine whether there had been a violation of that statute. The expertise of the Human Rights Tribunal was held to lie in its capacity to determine questions of fact and in the context of deciding issues of credibility, considerable deference should therefore be paid to the Tribunal’s findings of fact. The purpose of the statute was characterized as remedial, to enlighten and educate as opposed to punish human rights violators, and to expose human rights violations to public scrutiny for public policy reasons. For that reason, a greater degree of deference was to be paid to the Tribunal’s findings. With respect to the nature of the question, the Court held that this was the determinative factor. The Court held that the Board of Inquiry considers matters of law, fact, and mixed fact and law and that in this situation, the Court should apply a standard of review of reasonableness to findings of fact made by the Board but that for questions of mixed fact and law, greater deference would be given if the question was fact intensive and less deference would be given if it was law intensive. With respect to questions of pure law, a reasonableness standard of review would apply.

The Court considered the issue of the delay in prosecuting this human rights complaint and held that the test to be applied was whether the delay compromised the fairness of the proceedings and if not, whether the delay was serious enough to amount to an abuse of process. The Court held that there was nothing unreasonable in the Board’s determination that no real or substantial prejudice befell the Appellants because of the Commission’s delay. This conclusion was based in part on the fact that the Appellants had ignored their own opportunities to gather evidence that was within their custody and control and so had not taken the available steps to move the matter forward themselves.

Applying the legal principles from the Blencoe decision, the Court held that there was no error in the finding that there was no unacceptable delay amounting to an abuse of process. The Court also considered whether the Commission’s initial two year delay in processing the complaint gave rise to an abuse of process and although the Court found this submission appealing, it was not persuaded that this was a rare case where the prosecution of the complaint should be stopped in its tracks without a consideration on the merits.

The Court considered the allegation that there was insufficient evidence to support the Board’s findings of fact. Given the standard of review on questions of fact, the Court held that the Board had considered all of the evidence tendered by the various witnesses and in some instances, had made the determination that there was insufficient evidence on a particular point. In those instances, she did not conclude that a particular action had occurred. The Court held that the Board had not erred in finding facts or drawing inferences from those facts and that her conclusions were reasonable.

The Court moved on to consider whether the Board erred in its application of the legal test for sexual harassment to those findings of fact. The Human Rights Act defines sexual harassment as vexatious sexual conduct which the person whose behaviour is impugned knew, or reasonably ought to have known, was unwelcome. The Board’s findings were not disturbed on appeal.

The Court did find that the Board had erred in her treatment of similar fact evidence but that the mistake did not warrant intervention by the Court of Appeal. The Court had made a finding that the alleged harasser received a letter from WCB in respect of an earlier complaint saying that any small recurrence of abusive or intimidating behaviour or inappropriate sexual comments would lead to his immediate dismissal. The Appeal Court found that there was no evidence upon which to base the conclusion that he had received the letter.

The Court then found that the Board had not erred in applying the legal tests in determining the issue of retaliation. The Board had appropriately reviewed whether the act was one where there was a demonstrated nexus between an actual or a threatened prejudicial act and the enforcement of a person’s rights under human rights legislation. It was clear that Ms. Davison expressed intention to file a human rights complaint was one of the reasons for her termination from employment.

The award on general damages was not found to be excessive, but the Board of Inquiry was found to have exceeded its jurisdiction in awarding exemplary damages because the enabling legislation did not provide for such an award. The Court dismissed the appeal except in respect of the exemplary damages, and noted that whether the human rights complaints process is an appropriate forum to consider serious psychological or psychiatric injuries is a question to be left for another case.

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