Administrative law – Decisions of administrative tribunals – Human Rights Commission – Discrimination – Disability – Duty to accommodate – Judicial review – Delay – Procedural requirements and fairness – Abuse of process – Standard of review – Correctness
New Brunswick (Department of Social Development) v. New Brunswick Human Rights Commission,  N.B.J. No. 45, New Brunswick Court of Queen’s Bench, March 6, 2009, D.H. Russell J.
In December 2002, the parents of an autistic adult filed a complaint against the Province and a care-home operator, alleging discrimination on the basis of mental disability related to “services, facilities or accommodation”. The autistic adult, “WA”, was born on September 23, 1981 and described as autistic as well as having other mental handicaps. In September 2000, WA was transferred to the Long Term Care Program of the Department of Family and Community Services for the Province of New Brunswick, and placed, on a part-time basis, in a facility providing the highest level of care under the Program. As a result of an escalation in his aggressive behaviour, WA was placed on a permanent basis in that facility in January 2001, with extra support in place. By late 2001, the operators of the facility advised the Province that WA’s needs continued to exceed the criteria for that placement and that his stay would have to be terminated.
The Province carried out searches to find a suitable facility for WA without success and, in February 2002, suggested that WA could return to his parents’ home with extensive support. The Province was prepared to increase the maximum level of support for home care under the LTC Program from $2,040 per month to $4,075 per month, recognizing WA’s high need for personal care and supervision. The parents rejected this proposal. The Province suggested an alternative facility known as Centracare. Because the parents would not assume responsibility for his care and there were no other family members capable of doing so, the Province applied for a supervisory order. The final order was for a period of 12 months from May 1, 2002 and authorized the Province to place WA in a facility where he would receive care and supervision on a 24-hour basis. He was placed in Centracare on March 6, 2002.
On December 12, 2002, WA’s parents filed a complaint against the Province and the original care-home operator, alleging discrimination on the basis of mental disability related to “services, facilities or accommodation”.
Centracare turned out to be unsatisfactory and, in March 2005, WA was transferred to a facility known as Spurwink School in Maine, where he remains. At that point, the supervisory order having expired almost two years previously, WA was under the control of his parents. The Province located the Spurwink facility, and facilitated WA’s transfer there under the direction of his parents. As well, all costs associated with the placement at Spurwink were being paid by the Province, and had been substantial.
Subsequent to the complaint being filed in December 2002, an investigation was carried out by HRC personnel and an investigation report dated September 30, 2003 was provided to the parties. The report was essentially a compilation of statements from the protagonists without opinions, recommendations or views being expressed. From the Province’s perspective nothing further was done about the complaint from early 2004 until the latter half of 2007. However, it was later revealed that subsequent to the initiation of the Spurwink placement the complainants’ lawyer wrote to the HRC and advised that their clients did not wish the Commission to take any steps at that time.
During the subsequent period, the matter became more complex in that the complainants commenced a lawsuit against the Province and the Health Authority alleging, among other things, negligence on the Province’s part because of the Centracare placement and relying on section 7 and 15 of the Charter. The complainants also sought an order that the Province pay for certain expenses in connection with the Spurwink placement.
In early 2008, the HRC made its decision regarding the December 2002 complaint. While dismissing some components of the complaint, the HRC recommended that one component be referred to a Board of Inquiry to hear the matter.
The Province applied for judicial review of the HRC’s decision and complained that it was not afforded procedural fairness from 2002 until 2008 under several heads. First, it said that the investigation carried out by HRC staff was inadequate, and that the complainant was relied on but the investigation did not, however, develop any documentary evidence about WA’s admission to Centracare, his care while there nor were any of the physicians and staff involved in WA’s care interviewed. Thus, the HRC was not in a position to say, on a prima facie basis, that WA’s disability was not adequately accommodated. Second, as to the investigation, the HRC was said to have failed to investigate the existence of adverse differential treatment, which was a prerequisite to a finding of discrimination. Third, the Province alleged that there was unreasonable delay, resulting in a loss of jurisdiction.
The Court noted that the proper standard of review with respect to procedural fairness is correctness. The Court proceeded to consider the Province’s first argument regarding the investigative report and its sequelae, and agreed that the Province had been denied procedural fairness in this regard. The HRC has a substantial discretionary power to refer the complaint to the Labour and Employment Board acting as a board of inquiry. This did not mean that they could ignore vital witnesses or ignore relevant evidence presented. Here, the HRC only considered an investigation report from 2003 and a response from the Province of June 12, 2008. They did not interview appropriate personnel at Centracare nor consider information that was at hand. Centracare must have an admissions policy and WA must have met those requirements. To conclude, on a prima facie basis, that WA was not adequately accommodated by the services he received at Centracare, the investigation would necessarily have to include a review of the admission procedures and other documentation at the institution as well as interviews with at least some of his institutional care providers. Such failure constituted a lack of procedural fairness sufficiently important to conclude that HRC did not exercise its discretion appropriately.
The Court also accepted the Province’s submission regarding the HRC’s failure to perform a differential analysis. Section 5 of the Human Rights Act speaks of “services or facilities available to the public”. This necessarily involves a consideration of the type of services available and inferentially whether WA is being treated differently than others in a comparator group. There was no effort, on the record before the Court, to attempt to identify a comparator group or individual much less draw a comparison. Nor was there any effort to determine whether there were other facilities available to accommodate WA. The question to be addressed is not one of quality but of discrimination. To conclude there is, prima facie, discrimination because the Province does not provide facilities in New Brunswick is to raise an issue outside the bounds of section 5 of the Human Rights Act. By not addressing the appropriate question and not performing a comparative analysis there had been a procedural fairness failure. The HRC should have concluded, on the evidence in the record, that a board, acting reasonably could not find discrimination. It should have, therefore, dismissed the complaint.
The Court also found that the HRC had improperly broadened the complaint, by including matters relating to WA’s placement in the Spurwink facility. To include the Spurwink placement into the mix of the complaint without any formal indication of that to the Province amounted to a breach of procedural fairness sufficient to quash the referral to the board.
Finally, the Court also accepted the Province’s argument regarding delay and loss of jurisdiction. From the time the complaint was made in December 2002 until it was referred to the Minister in August 2008, some 68 months had elapsed. During this interval there were some efforts at settlement but there was also a period during which the complaint was in abeyance at a request of the complainants and unknown to the Province. This was an excessive delay in prosecuting the complaint which amounted to an abuse of process.
The Court concluded that the only appropriate solution given the lengthy delay and the other deficiencies in procedural fairness was to remove the decision of the HRC into the Court and quash it. The Court also ordered, pursuant to Rule 69.13(4) of the Rules of Court, that the New Brunswick Labour and Employment was prohibited from taking any further steps with respect to the complaint.
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