Supreme Court of Canada upheld the Nova Scotia Human Rights Commission’s decision to refer a complaint about differential funding of French-language schools in Halifax to a board of inquiry. The decision was a discretionary determination by an administrative tribunal exercising a screening function warranting deference .
Administrative law – Decisions of administrative tribunals – Human Rights Commission – Jurisciction of commission – Referral to Board of Inquiry – Discretion of delegated authority – Human rights complaints – Charter of Rights and Freedoms – Discrimination – Minority rights – Schools – Funding – Judicial review – Jurisdiction – Standard of review – Reasonableness simpliciter
Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), [2012] S.C.J. No. 10, Supreme Court of Canada, March 16, 2012, McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ.
The Human Rights Act, R.S.N.S. 1989 (the “Act”) confers upon the Nova Scotia Human Rights Commission (the “Commission”) the discretion to determine that an inquiry is warranted, when there is a human rights complaint that the Act has been violated. This Supreme Court of Canada decision addressed the scope of judicial review of the Commission’s decision to refer a human rights complaint to a board of inquiry.
In the 1990s, a group of municipalities were amalgamated into Halifax, Nova Scotia. Prior to that amalgamation, the municipalities of Halifax and Dartmouth provided supplementary funding to their public school boards. When their public school boards were merged to form the Halifax Regional School Board, a statutory provision was enacted requiring continued supplementary funding of those school boards, by the amalgamated municipality.
At around that time, Nova Scotia created a province-wide school board to administer French-first-language schools (the “Conseil”). Conseil schools in Halifax were not provided the supplementary municipal funding that was paid to the existing school board under the agreement to continue pre-amalgamation supplements.
A francophone parent with children in a Halifax French language school (“Comeau”) made a complaint to the Commission alleging that the differential funding arrangement discriminated against him and his children on the basis of their Acadian ethnic origin, by denying them a service or facility (s.5(1)(a) and (q)). Comeau also alleged that the funding arrangement constituted a s.15 Charter equality rights violation.
The Commission investigated the complaint. The investigator filed three reports suggesting that the complaints appeared to establish a prima facie case of discrimination.
The complaints were put in abeyance pending the outcome of litigation launched by other families, which was supposed to consider the Charter issue. However, the matter was adjourned when legislative changes were proposed that would redress the funding issue; ultimately a consent dismissal order was entered when legislation was enacted to allow retroactive funding back to 2006. In November 2006, the Commission reactivated its complaint process regarding the Comeau matter and requested that a board of inquiry be appointed.
Nova Scotia Supreme Court
Halifax applied to quash the Commission’s decision to refer the Comeau complaint to a board of inquiry and to prevent the board from proceeding. In Nova Scotia Supreme Court Chambers, the order was granted. The Chambers judge opined that the Commission had decided that Comeau’s complaint “fell under the Act”, a determination that was one of jurisdiction reviewable on a correctness standard, and found that the jurisdiction decision was incorrect. The Court cited Bell v. Ontario (Human Rights Commission), [1971] S.C.R. 756 (“Bell”) to justify this early intervention into the tribunal’s process.
Nova Scotia Court of Appeal
Comeau and the Commission appealed. The Court of Appeal concluded that intervening at this early stage would “stifle” the inquiry before it could begin. While courts may have discretion to prohibit administrative bodies from proceeding, circumstances justifying such intervention are rare. The decision in Bell was of doubtful authority. “The appropriate test for judicial intervention at this early stage of the process is that the tribunal’s lack of jurisdiction to deal with the matter is “clear and beyond doubt”” (para. 14), reflecting a reluctance to interfere.
The Court of Appeal held that the Chambers Judge erred in viewing Comeau’s complaints as seeking legislative reform only, when he had sought other remedies. Further, the Commission had only made a referral decision, not a decision on the merits of the matter. The failure to accord appropriate deference to the Commission’s referral decision was an error of law.
The Court of Appeal held that it was not clear and beyond doubt that the complaint was beyond the board’s jurisdiction.
Supreme Court of Canada
The Commission’s decision to refer the matter to an inquiry should be upheld. The decision was not a determination of jurisdiction. It was a discretionary decision about whether an inquiry was warranted. The Commission played a screening or gatekeeping administrative function. Section 32(A)1 of the Act and the Boards of Inquiry Regulations confer upon the Commission a broad discretion as to whether or not to refer a matter to inquiry. There is no prerequisite merit threshold or jurisdiction determination to be taken prior to referral. The Commission must only be satisfied, having regard to all of the circumstances, that an inquiry is warranted. A decision to refer a complaint is, therefore, “not a determination that the complaint is well founded or even within the purview of the Act” (para. 23). “While there is some limited assessment of the merits inherent in this screening and administrative role, the Commission is not making any final determination about the complaint’s ultimate success or failure.” (para. 24)
If the Commission is satisfied that an inquiry is warranted, it “may” appoint a board of inquiry. However, the language is non-mandatory, demonstrating that the determination is a discretionary one. These discretionary decisions are reviewable on a reasonableness standard.
Judicial intervention into an administrative tribunal’s work should be exercised with great restraint. The Bell decision had suggested that the discrete points of law upon which referral decisions are based might be subject to a correctness review, but it should no longer be followed on this point. Questions of jurisdiction are now much more narrowly circumscribed than they were at the time of Bell. Bell stands only for the proposition that referral decisions are subject to judicial review. Early judicial intervention should be avoided in most cases, since it risks depriving the reviewing court of a full record on the issue, and may encourage a multiplicity of proceedings. Contemporary administrative law affords the reviewed tribunal more deference on legal questions, particularly where those relate to its own statutory framework.
The test when considering proposed judicial intervention in the preliminary stage of the Commission’s efforts is whether there is reasonable basis in law or on the evidence for the Commission’s conclusion that an inquiry is warranted. The test should incorporate an appropriate level of judicial deference both to the substance of the administrative tribunal’s decision and to its ongoing process. The reasonableness standard recognizes that certain questions faced by administrative tribunals do not lend themselves to a single outcome. “In this case, both the nature of the Commission’s role in deciding to move to a board of inquiry and the place of that decision in the Commission’s process are important aspects of that context and must be taken into account in applying the reasonableness standard.” (para. 43)
It was reasonable to refer Comeau’s complaint to an inquiry. The Commissioner’s investigator pointed out that the funding situation may constitute differential treatment based on ethnicity, thereby preventing Conseil schools from providing some services. Halifax had the legal authority (in the Education Act) to remedy the funding differential. Without determining the merits of Comeau’s complaints, it is apparent that the investigator’s reports and the surrounding circumstances of the complaint provided a reasonable basis for referral to an inquiry. The appeal was dismissed.
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