The applicant (Aurora College) successfully applied to quash the decision of an adjudicator established under the Human Rights Act. The adjudicator had ordered that an investigative report be disclosed to her.

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Adjudications – Human rights complaints – Discrimination – Judicial review – Disclosure – Relevance of information disclosed – Compliance with legislation – Standard of review – Correctness – Inquiries vs. adjudications

Aurora College v. Niziol, [2010] N.W.T.J. No. 86, 2010 NWTSC 87, Northwest Territories Supreme Court, October 25, 2010, V.A. Schuler J.

Ms. Niziol made a complaint to the Human Rights Commission against Aurora College. The Commission was responsible for investigating the complaint and the complaint was referred to an adjudicator for a hearing. The adjudicator held a pre-hearing teleconference with Ms. Niziol and Aurora College’s counsel to discuss matters relevant to the hearing of the complaint.

At the pre-hearing teleconference, the adjudicator asked the parties whether they would consent to the investigative file (from the Director of the Commission) being released to her. Ms. Niziol took the position that the entire file should be available to the adjudicator. Counsel for Aurora College took the position that only the complaint and the responses to the complaint should be available to the adjudicator. The adjudicator directed that the entire file be released to her and directed that Aurora College advise whether it would consent to that file also being released to Ms. Niziol.

Aurora College brought an application for a judicial review of the adjudicator’s decision, in which they sought an order quashing that decision. The Director of the Human Rights Commission supported Aurora College’s application. The standard of review for this application was correctness since it involved issues of law and procedural fairness. The court reviewed the scheme of the Human Rights Act and noted that the Human Rights Commission was established to investigate complaints under one part of the Act while the adjudication panel was established to hear and adjudicate complaints under another part of the Act. The court noted that the two entities are intended to be separate and distinct. The investigators gather information and submit a report to the Director and the Director provides a copy of that report to each of the parties. The Director’s task does not include weighing evidence or credibility except to a very limited degree.

If the Director refers the complaint to a hearing, it goes to the adjudication panel (the chairperson of the panel designates a member of that panel to be the adjudicator). The adjudicator has all the powers of a Board appointed under the Public Inquiries Act including the power to require any person to produce the documents and things that the Board considers necessary for a full and proper inquiry. The adjudicator is also empowered to make rules governing the practice and procedure in hearings and pre-hearing matters.

Aurora College and the Director took issue with the adjudicator’s statement, in her decision, where she described her role as an active one “based on the inquiry model”. The court noted that an adjudication is completely different from an inquiry (under the Public Inquiries Act), as an inquiry is not an adversarial proceeding. In an adversarial proceeding, the adjudicator does not take an active role to find evidence or ensure that evidence is placed before her. The adjudicator therefore erred in declaring her role to be based on the inquiry model.

The adjudicator indicated that she was treating the Director file as disclosure at the pre-hearing stage. Aurora College argued that disclosure takes place between parties and not between one or more parties and an adjudicator. The court held that the adjudicator erred in describing her order as a disclosure order.

The adjudicator ordered that Aurora College reply by a certain date to advise whether it would consent to the Director’s file also being released to Ms. Niziol. The court held that fairness required the file, if it was going to be produced to the adjudicator, also be produced to both parties. Therefore, the adjudicator did not act fairly in making the order the way she did.

The court also noted that the adjudicator’s reasons did not reveal any specific concerns that would justify her reviewing the Director’s file.

The court held that the adjudicator erred in understanding her role and in ordering that the Director’s file be released to her and the other members of the adjudication panel. Her order was therefore quashed.

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 smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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