Does the Human Rights Commission have to provide reasons when dismissing a complaint? When is it appropriate on judicial review for the court to permit evidence that was not before the original decision-maker? These were some of the central questions that were before the Nova Scotia Supreme Court after the applicant filed a complaint against her employer saying that she was constructively dismissed due to a failure to accommodate her disability.

Administrative law – Decisions reviewed – Human Rights Commission – Judicial review – Evidence – Failure to provide reasons – Standard of review – Reasonableness – Human rights complaints – Disability

Kelly v. Nova Scotia (Human Rights Commission), [2018] N.S.J. No. 336, 2018 NSSC 173, Nova Scotia Supreme Court, September 11, 2018, J.M. Arnold J.

The applicant, Tracey Kelly, was employed by AC Dispensing. Between 2012 and 2014 she was disciplined due to absenteeism. In late 2014, Ms. Kelly said that she developed anxiety issues. She requested time off work in 2015. On June 16, 2015 she advised AC Dispensing that she required a medical leave of absence, and the company put her on indefinite disciplinary suspension for absenteeism. She never returned to work.

Ms. Kelly filed a human rights complaint against AC Dispensing alleging she had been constructively dismissed due to a failure to accommodate her disability. The Human Rights Commission (the “Commission”) informed Ms. Kelly by letter that it was dismissing her complaint pursuant to section 29(4)(c) of the Human Rights Act (i.e., that the complaint raises no significant issues of discrimination). However, this was later determined to be a mistake; in fact, the Commission dismissed the complaint pursuant to section 29(4)(b) (i.e., the complaint is without merit).

On judicial review, the Commission sought to introduce an affidavit to address this “clerical” mistake regarding the record – namely, the incorrectly identified section of the Act. Ms. Kelly objected to the introduction of this evidence and the court addressed the admissibility of the affidavit as a preliminary issue. Because the affidavit was not before the Commission, the court recognized that it could not constitute part of the record of judicial review absent an exception to the usual rule. Ultimately, the court permitted the introduction of the affidavit on the basis that it allowed the court to better understand the record itself, and it did not alter or enhance the record in any way. The court found that not admitting the affidavit would mean it would base its decision on what was ultimately a clerical mistake. Therefore, the court permitted the affidavit to be admitted for the purpose of the hearing and remedying the error.

As for the substance of the judicial review, Ms. Kelly argued the Commission did not provide reasons for its decision dismissing her complaint and that the decision was otherwise unreasonable.

The court, relying on previous jurisprudence, reaffirmed that the Commission was not required to provide reasons to Ms. Kelly. The court relied on the previous decision in Green v. Nova Scotia (Human Rights Commission), 2011 NSCA 47, which addressed the issue head on. In that case, the Nova Scotia Court of Appeal reviewed the function of the Commission within the context of its statutory mandate in concluding that it was not required to provide reasons for its decision. The court also noted in this case Ms. Kelly was an “active participant” in the process, in that she was able to file submissions after having an opportunity to review the investigator’s report and prior to the Commission ruling on her case.

Part of Ms. Kelly’s argument around the reasonableness of the decision related to the Commission’s failure to follow the recommendations of its own investigator, who concluded that Ms. Kelly’s complaint should proceed to a Board of Inquiry (the next stage in the process). However, the court found the Commission was not required to follow the recommendations of its investigators. In the end, clearly cognizant of the specialized function of the Commission, the court summarily concluded that the Commission’s decision was “justified, transparent and intelligible” and fell within the range of reasonable outcomes.

Accordingly, the court dismissed Ms. Kelly’s application.

This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Adam R. Way at away@harpergrey.com.

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