The Court found, on judicial review, that the decision of the Director of Human Rights Commission extending the time to file a human rights complaint was unreasonable. The 12 month deadline to file a complaint ran until the formal complaint was made. The statutory scheme under the Human Rights Act, R.S.N.S. 1989, c.219 is premised on a formal complaint and a process of inquiry based on it. The Commission also breached its duty of procedural fairness by not giving the applicant employer, ExxonMobil Canada Ltd., a copy of the respondent employee’s request for an extension prior to the Director making a decision. Finally, there was no basis for a finding of exceptional circumstances because of the respondent’s counsel’s communications with the Commission led counsel to believe that the deadline to file a complaint was extended. The communications between counsel and the commission were about the administratively imposed 28 days for completing the intake questionnaire, not the 12 month statutory deadline. Also, those communications about extending time occurred after the statutory deadline had expired.

Administrative law – Decisions of administrative tribunals – Human rights complaints – Discrimination – Judicial review – Limitations – Extension of time – Compliance with legislation – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter

ExxonMobil Canada Ltd. v. Carpenter, [2011] N.S.J. No. 649, 2011 NSSC 445, Nova Scotia Supreme Court, December 1, 2011, G.R.P. Moir J.

The respondent employee wished to file a complaint against the applicant employer ExxonMobil Canada Ltd. that for many years she had been subjected to various acts of discrimination relating to her nut allergy, sex, and sexual orientation. Under the Human Rights Act, R.S.N.C. 1989, c.214, the right to make a complaint is subject to a twelve month limitation period, with limited discretion provided to the Director of Human Rights to increase the period.

The employee’s first contact with the Nova Scotia Human Rights Commission was in February 2009, some eleven months after the end of her regular employment. The substance of her complaint was described by her lawyer to commission staff eleven and a half months after the end of her regular employment and the commission provided a form of “intake questionnaire”. The employee obtained several extensions to complete the questionnaire past the 28-day time limit and completed and delivered the questionnaire to the commission in April 2010, fourteen months after the end of the employee’s regular employment. The Director then extended the time to file the complaint to January 2011, stating that “exceptional circumstances” existed because “notification to the complainant that the intake questionnaire was due within 28 days could have easily been perceived as defining a new deadline for submitting the required documentation. As this apparent confusion arose out of communication that originated from the Commission, the complainant should not be penalized. This circumstance is therefore exceptional”.

On judicial review by the employer, the Court held that the decision to extend the deadline for the employee to file a complaint under the Human Rights Act was unreasonable and decision was set aside. The 12-month deadline imposed under the statute was prescribed and ran until the formal complaint was made. There was no support for an interpretation of a statutory provision that would elevate informal communications with the Commission, such as completion of an “intake questionnaire” form, to the status of complaints. The legislative scheme was premised on a formal complaint and a process of inquiry based on it and the interpretation suggested by the employer that any communication that provides “reasonable grounds” for the Commission to believe a complaint existed constitutes a complaint is inconsistent with the statutory scheme and the certainty it is meant to achieve.

Moreover, the employer was not given a copy of the employee’s “request for an extension form” before the Director made his decision which constituted a breach of the duty of procedural fairness. On this ground alone, the decision to extend time should be set aside unless a case can be made for the exercise of discretion on the ground that setting aside the decision causes an injustice. This was not the case here.

Finally, the standard for reviewing the “exceptional circumstances” question should be conducted on a standard of reasonableness. The Director ruled out the medical explanation as an exceptional circumstance and which left on the explanation based on the employee’s counsel being misled by commission staff. In the Court’s assessment, there was no logical connection between what the staff said to counsel and the failure to file a complaint on time. The discussion was about the administratively imposed 28-day deadline for filing a questionnaire and it was unreasonable to suggest that this led counsel to believe that the statutory 12-month deadline for filing a complaint was extended. The confusion also had to have come after the expiry of the statutory deadline.

To stay current with the new case law and emerging legal issues in this area, subscribe here.