Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Labour law – Collective agreements – Mandatory retirement – Universities – Judicial review – Parties – Standard of review – Correctness – Practice and procedure – Adding parties – test
University of Prince Edward Island v. Nilsson,  P.E.I.J. No. 2, Prince Edward Island Supreme Court, January 15, 2009, W.D. Cheverie J.
Several human rights complaints were filed against the University in respect of the University’s mandatory retirement policy. One of the complaints was brought by an employee of the University. The Union was the certified bargaining agent for some University employees.
In May 2007, the parties to the complaints appeared before the Human Rights Panel (the “Panel”) to address some preliminary matters. One of the preliminary matters was a request by the University that the Union be added as a party in the complaint proceedings. The Panel rejected the University’s request and the University brought this application for judicial review on August 30, 2007.
The main stated grounds for the University’s application is that the failure to have the Union added as a party to the complaint proceedings would restrict the Panel’s ability to make proper liability and remedy decisions as well as prejudicing the University’s ability to make full answer and defense.
The court first considered the standard of review applicable to the Panel’s decision. The relevant section enabling the Panel to add parties does not provide specific guidance about the nature of the Panel’s power to add parties.
The court noted that the question of adding a party is not a matter that the Panel has specialized expertise in. The privative clause states that a “decision of a Human Rights Panel is final and binding upon the parties” and such the clause indicates the legislature intended a low level of deference. The court concluded that the issue of adding a party is a question of law and, as such, the applicable standard of review is correctness.
The court went on to review the Panel’s decision and consider whether the Panel erred in its decision. There is a two-part test to determine whether a party should be added in the context of a human rights matter. That test, taken from the Payne case in Ontario, is applicable in Prince Edward Island human rights matters.
First, the applicant must show some reliable evidence upon which the Panel could find liability on the part of the party to be added. Second, the applicant must show the proposed party would not suffer prejudice incapable of being cured. The applicant was able to satisfy both elements of the Payne test and, therefore, the Panel’s decision was wrong. The court, therefore, ordered that the Panel direct the Union to be added as a party.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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