On judical review the court found that a failure to interview supervisors, when there is an allegation made against them that they were discriminatory,amounted to a breach of procedural fairness pursuant to the test set out in Slattery v. Canada (Human Rights Commission), (1994) 73 F.T.R. 161.

[2014] N.S.J. No. 76

2014 NSSC 65

Nova Scotia Supreme Court

A.J. LeBlanc J.

February 19, 2014

From 1998 to 2007, the applicant worked as a volunteer firefighter with the Halifax Regional Municipality Fire and Emergency Services (“HRMFES”). In 2006, after a series of troubling incidents, the applicant filed an internal complaint with HRMFES alleging that she had been subjected to workplace harassment and discriminatory treatment because of her gender for a period of two years. She specifically named supervisors Chief McLean and DC Burgess as the individuals primarily responsible for her mistreatment. Halifax Regional Municipality (“HRM”) appointed two people to investigate the complaint. They investigated Chief McLean, DC Burgess and other firefighters at the station and released a report in March 2007 which concluded that the complaints were unfounded.

In April 2007, the applicant filed a complaint against HRMFES alleging that she had been discriminated against on the basis of sex and mental disability contrary to the Nova Scotia Human Rights Act (the “Act”). The complaint was reviewed, ultimately, by Human Rights Officer Herbert Desmond. He prepared an investigation report based on the following record: (i) the applicant’s complaint form and additional documentation (ii) the HRMFES response (iii) the applicant’s rebuttal to the HRMFES response and a former Human Rights Officer’s interview notes. Mr. Desmond also originally scheduled interviews with Chief McLean and DC Burgess, amongst others, but for reasons that are unclear none of the interviews took place.

On December 29, 2011, Mr. Desmond released his investigation report recommending that the applicant’s complaint be dismissed under s. 29(4)(b) of the Act. Mr. Desmond relied heavily on the version of events offered by HRMFES and concluded that the issues raised by the applicant appeared to be based on perception and not any overt acts of discrimination.

The applicant filed a response to Mr. Desmond’s investigation report and also sent a complaint to the Manager of Dispute Resolution for the Commission raising issues with the equality of the investigation conducted by Mr. Desmond. The Nova Scotia Human Rights Commission adopted Mr. Desmond’s recommendation and dismissed the complaint under s.29(4)(b) of the Act. The manager also dismissed any alleged deficiencies in Mr. Desmond’s investigation. The applicant filed a notice of judicial review of the Commission’s decision. The applicant challenged the fairness of the investigation. Alternatively she argued that the Commission’s decision to dismiss her complaint was unreasonable.

The court found that Mr. Desmond’s failure to interview either Chief McLean or DC Burgess amounted to a breach of procedural fairness. In this case, Chief McLean and DC Burgess were both central to the allegations of discrimination. Although the court found some merit to the Commission’s argument that their evidence was included in the HRM response and a reasonable person would not believe that they would provide additional relevant information above and beyond that, the court noted that the operative question is whether the failure to interview them was a failure to investigate obviously crucial evidence to the investigation. The court found that it was reasonable to believe that Chief McLean and DC Burgess had additional crucial information to offer, such that conducting an interview with them was necessary for a thorough investigation. This is especially since: (i) it could be inferred that Mr. Desmond himself recognized that interviews with Chief McLean and DC Burgess were relevant to his investigation as he originally scheduled interviews with them (and there was no explanation why he never went forward with the interviews) and (ii) the HRM report suffered from limitations inherent to written submissions (in an interview, the investigator has the ability to ask follow-up questions, challenge opinions and make limited credibility assessments).

Given that the court found the Commission’s investigation into the complaint breached procedural fairness,this was sufficient in and of itself to invalidate the Commission’s investigation into the complaint and render the Commissioners unable to make a proper screening determination on this case based on the sufficiency of the record before them. The court therefore found it unnecessary to address the other grounds of review raised by the applicant. The court quashed the decision and remitted the complaint back to the Commission to be re-considered after a fresh investigation, conducted by an investigator with no prior contact with her complaint file.