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Friday, July 28, 2017 @ 7:06 AM  

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Appeal by the Human Rights Commission from the Board of Inquiry’s refusal to report the settlement agreement. Charlton filed a human rights complaint against his employer, alleging that his employer discriminated against him based on physical disability. He alleged that the employer terminated him after he had been off over the summer on medical leave. The employer denied the allegation. The Commission appointed a Board of Inquiry, but the parties preferred negotiation to litigation. They presented the Board with a written settlement agreement. The agreement did not acknowledge that there had been discrimination, but gave Charlton compensation and a written apology. Both Charlton and his employer were content. Although s. 34(5) of the Human Rights Act required the Board to report the terms of the settlement in its decision, the Board declined to report the settlement agreement. The Board found that the settlement was not in the public interest because its terms did not require that the employer adopt a sufficiently detailed program to define and prevent discrimination and promote affirmative action. The Commission appealed the Board’s refusal to report the settlement agreement, arguing that the Board erred in law by applying a merits-based adjudication to the process of reporting the terms of settlement under s. 34(5) of the Human Rights Act.

HELD: Appeal allowed. The decision of the Board was set aside and an order directing the reporting of the settlement agreement was substituted. The decision of the Board was unreasonable. Its refusal to report the agreement resulted from the misinterpretation of its powers under the Act. No reasonable construction of s. 34(5), in its statutory scheme and context, permitted the Board to intrude into the merits of the settlement on the bases cited for the Board’s refusal to report the agreement. The Act preferred settlement over adjudication and under s. 34(5) the Board should look for an avenue to make the parties’ resolution work, not detour them to formal adjudication. A Board of Inquiry could not, under s. 34(5), reject a settlement because it held the view that different terms of settlement would be more fair or reasonable between the parties. Furthermore, the reporting function under s. 34(5) did not authorize an interrogation of the parties, in each other’s presence, about their negotiating positions by the decision-maker who would adjudicate their dispute once the Board rejected the settlement. Where, as here, the Commission participated in the negotiation of the settlement, the Board should defer to the stipulation that the Commission had performed its task to ensure that the settlement satisfied the purpose and scheme of the Act. If, as here, the agreement contained remedies not authorized under the Act, it should report the otherwise compliant agreement and then add a comment that the agreement contained remedies that were outside the Board’s authority under the Act.

Nova Scotia (Human Rights Commission) v. Charlton, [2017] N.S.J. No. 240, Nova Scotia Court of Appeal, J.E. Fichaud, P. Bryson and E. Van den Eynden JJ.A., June 20, 2017. Digest No. TLD-July242017012