Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human Rights complaints – Discrimination – Sexual orientation – Investigations – Judicial review – Evidence – Fresh evidence – admissibility
J.D. v. Nova Scotia (Human Rights Commission),  N.S.J. No. 323, 2015 NSSC 225, Nova Scotia Supreme Court, July 29, 2015, J.L. Chipman J.
The Applicant sought judicial review of a September 26, 2014 decision of the Nova Scotia Human Rights Commission to dismiss the Applicant’s December 20, 2013 complaint.
By way of background, the Applicant alleged two 2013 incidents of discrimination against her as a transgender female involving employees of Aramark. In one incident, she alleged that the university cafeteria server questioned the Applicant about her legal name in front of others, did not address her by her preferred name and was unwilling to serve her food because she was transgender. In another incident, an Aramark employee stared at the Applicant’s chest and said, “Ohh boobies. Are your boobies real. You are one of the girls now and need to get used to these types of questions.”
After the first incident was brought to Aramark’s attention, Aramark employees underwent diversity training. Following the second incident, the specific employee underwent diversity sensitivity training.
The Human Rights Commission received the Applicant’s complaint. A Resolution Conference was arranged but the complaint was not resolved there. A Human Rights Officer then prepared an investigation report which concluded that, based on the available information, the complaint be dismissed because there was insufficient evidence to support the allegation. The Applicant then sent written submissions to the Commission requesting that her complaint be referred to a Board of Inquiry. The Commission met and passed a motion to dismiss the complaint citing insufficient evidence to support the allegations. This was subsequently communicated to the parties.
The Applicant then sought judicial review on two grounds:
- Key witnesses were not interviewed; breach of procedural fairness; and
- Resolution Conference failed to provide a safe space for the Applicant and her concerns were ignored.
Regarding the documents filed by the Applicant in support of the judicial review application, including a letter and a brief, the Respondents argued that the letter contained no relevance to the review noting that it referred to a separate proceeding, and the brief raised a number of new issues which did not pertain to the two grounds for review.
Regarding the new evidence, the Court noted that it is restricted in what it may consider when assessing a decision of this nature, noting that unless it has given leave for the introduction of new evidence a Court may only consider the Record. Based on the Court Rules and admissibility rules, the Court concluded that the judicial review must be limited in scope and that there had not been a proper foundation laid to permit leave for the introduction of any new evidence.
Regarding the procedural fairness issue, the Court found no evidence suggesting that the Applicant was not provided with an opportunity to supply any evidence she deemed necessary to support her Complaint. Additionally, while the Court noted that the lack of a written record of the Resolution Conference made it difficult to review the allegation that Conference was carried out in a manner that violated the duty of procedural fairness, the Court focused on the Record which indicated that the Resolution Conference was carefully overseen with sensitivity in mind.
In conclusion, the Court found that the Applicant failed to establish any violation of procedural fairness and that therefore she was not hindered in her ability to participate in the complaint process, inclusive of the Resolution Conference.
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