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DISCRIMINATION - Context - Workplace discrimination - Job competition

Monday, March 18, 2019 @ 10:34 AM  


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Appeal by Ayangma from dismissal of his application for judicial review of a decision of the Human Rights Commission refusing to refer his complaint for a hearing by the Labour and Employment Board. The appellant, a 60-year-old black male, alleged the respondent University discriminated against him based on his race, place of origin and his age when it awarded the position of a full-time professor to a younger white candidate. The University concluded that the appellant and five other candidates did not possess the required specialization in human resources management. The Commission was of the view that part of the complaint had not been submitted within the statutory time limit and that there was no strong arguable case for granting an extension. As for the allegations of fact regarding incidents occurring after July 2014, the Commission determined that the information provided was insufficient to show a strong arguable case of discrimination in employment based on race, national origin, place of origin, colour or age, and therefore rejected those allegations. The applications judge agreed with the University and awarded it costs of $10,000.

HELD: Appeal dismissed. There was no basis for finding that the appellant was denied procedural fairness by the Commission. He had not raised any argument that would tend to establish a judicial error relating to a breach of procedural fairness. The Commission’s decision to dismiss the complaint concerning the allegations of incidents occurring before July 2014 on the basis that it was not filed within the time limit prescribed by the Act met the standard of reasonableness. The Commission was not required to apply the discoverability rule. It could rely on its home statute, the Human Rights Act, and on its Guideline. The criterion requiring the existence of a strong arguable case, which was a determinative criterion, had not been met and consequently, the person designated to inquire into the complaint recommended that the Commission refuse to grant an extension of time. The Act did not require that the University retain the most qualified person to fill a position. It was entitled to choose the person who, in its view, best met the needs of the institution, provided that the selection process and the selections made did not violate human rights. The appellant essentially asked the court to reweigh the evidence considered by the Commission and to make the determination that the Commission must refer the complaint to the Labour and Employment Board. The reviewing judge correctly identified and applied the proper standard of review. The Commission’s decision to dismiss the complaint met the standard of reasonableness given that it was transparent, intelligible, justified and well within the range of probable outcomes. There was no basis to set aside the costs award. The application took three days. The application record was voluminous. The application judge was in a better position to determine the issues relating to costs in the judicial review. He made a discretionary order which was not clearly wrong.

Ayangma v. Université de Moncton, [2019] N.B.J. No. 28, New Brunswick Court of Appeal, K.A. Quigg, B.L. Baird and L.A. LaVigne JJ.A., February 7, 2019. Digest No. TLD-March182019002