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ENFORCEMENT AND PROCEDURE - Human rights tribunals and boards of inquiry - Powers - Procedure - Application - Limitation periods - Evidence - Appeals and judicial review

Friday, May 05, 2017 @ 8:44 AM  

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Appeal by Smith from a Board of Inquiry decision dismissing his human rights discrimination complaint. The appellant worked for the Capital District Health Authority from 1990 to 2012. He was most recently engaged as an occupational therapy assistant at a mental health clinic between 2005 and 2012. In 2011, the appellant's position was transferred to another department within the Health Authority. The appellant was dissatisfied with the transfer and approached the Nova Scotia Human Rights Commission regarding a potential discrimination complaint. Previously, the appellant had filed a complaint alleging discrimination on the basis of race and colour that was rejected in 1997 due to insufficient evidence. Between 2000 and 2005, the appellant was on long-term disability for medical reasons. The appellant's most recent complaint was advanced in 2015, and alleged discrimination on the basis of race, colour and physical disability dating back to 2005, and retaliation in respect of the 1997 complaint. The Board concluded that the last alleged instance of misconduct, namely the 2011 transfer decision, did not occur within the 12 months prior to the filing of the complaint. In any event, the evidence did not support a finding that the appellant's transfer resulted from discrimination or retaliation, as it was a health care decision. The Board dismissed the complaint due to insufficient evidence. Smith appealed.

HELD: Appeal dismissed. There was no merit to the appellant's allegation that the Board erred by refusing to inquire into evidence of racism and retaliation prior to 2005. The Board approached the appellant's complaint based on its content as submitted. There was no scope for amending the complaint at the hearing to predate 2005. The Board considered past evidence to the extent that was legally permitted. It conducted a lengthy hearing into the appellant's complaint, involving 15 witnesses and voluminous documentation. The reasons for dismissal reflected a clear understanding and proper application of the law, with clearly expressed findings of fact amply supported by the evidentiary record. In determining the scope of inquiry, the Board gave careful consideration to the notions of an "ongoing" incident, and a "last instance" of alleged misconduct. The Board's conclusion that the complaint was statute-barred was reasonable, and did not result from an unjustifiably strict reading of the complaint.

Smith v. Nova Scotia (Human Rights Board of Inquiry), [2017] N.S.J. No. 116, Nova Scotia Court of Appeal, D.R. Beveridge, J.W.S. Saunders and L.L. Oland JJ.A., April 11, 2017. Digest No. TLD-May12017014