The Court dismissed an application for a judicial review of a decision of the Director of Human Rights, directing that a complaint against the Appellant proceed to a hearing before an adjudication panel of the Northwest Territories Human Rights Commission. The Court found that there was no breach of procedural fairness, abuse of discretion, or errors of law.l

26. December 2007 0

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human rights complaints – Discrimination – Disability – Judicial review – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter – Correctness

Diavik Diamond Mines Inc. v. Northwest Territories (Director of Human Rights), [2007] N.W.T.J. No. 89, Northwest Territories Supreme Court, October 16, 2007, J.Z. Vertes J.

The Applicant had been the subject of a human rights complaint brought by one of its employees at its diamond mine. The Complainant had lodged a complaint with the Northwest Territories Human Rights Commission alleging discrimination on the basis of disability and family status, following the termination of his employment. The Applicant responded to the complaint, following which the Director of Human Rights appointed an investigator to investigate the matters referred to in the complaint.

The investigator reported back to the Director that he recommended that the complaint be dismissed because the matters did not warrant further inquiry. The Director provided this report to the parties and gave them an opportunity to comment further. The Director ultimately made the decision to refer the complaint to an adjudication panel for a hearing.

The Court applied the pragmatic and functional approach to determine the appropriate standard of review. The Court concluded, after a consideration of the relevant factors, that the standard of reasonableness simpliciter was appropriate. Considerable deference should be shown to the Director’s decision, except where the Director addresses questions of legal interpretation, in which case no deference is owed. In this case, the Applicant raised discreet issues of procedural fairness and errors of law, which were to be reviewed on a standard of correctness.

The Applicant raised a number of issues before the Court. First, the Applicant argued that the Director had erred in law when she applied a direction contained in an earlier decision of the adjudication panel regarding the principles to be applied when the Director exercises decision-making authority. The Court held that the Director was entitled to rely on the legal standard articulated by the adjudication panel and would be expected to do so unless a Court determined that the standard was wrong. The Court further held that the standard articulated by the adjudication panel was the correct one.

The Applicant argued that the Director had committed jurisdictional error by following the earlier decision of the adjudication panel and thereby fettering her discretion. The general principle is that a discretion must be exercised by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the direction of some other body, and it is not to fetter the exercise of that discretion by the blind application of some inflexible policy regardless of the merits of the particular case. Reliance on a legal standard is not the fettering of discretion. Legal interpretation of the enabling statute is not analogous to the adoption of some policy that does not allow the decision-maker to consider the particular facts of the case. Here, the Director applied the legal standard articulated by the adjudication panel, but that standard did not pre-determine her decision.

The Applicant argued that the Director breached the requirements of procedural fairness by relying on an unpublished decision of the adjudication panel. The Court held that it is preferable for any decision-maker to alert the parties regarding case law if they are going to rely on it and the parties have not referred to it. However, this is not a hard and fast rule and it is a question of the materiality of the authority relied on by the decision-maker. In the context of this case, the Director had met the requirements of procedural fairness. The Act requires the Director to enquire into a complaint, which is essentially an investigative or inquisitorial process. The requirements of procedural fairness are attenuated by the summary nature of this process.

The Applicant argued that the Director’s decision to refer the complaint to the adjudication panel was unreasonable. The Court found that the Director’s reasons revealed a thorough and thoughtful analysis of the evidentiary and legal issues, albeit on a relatively modest level which is appropriate to the decision she must make. They provided the tenable explanation that is required by the reasonableness standard.

In the result, the Application was dismissed.

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