Court of Appeal

Nova Scotia Court of Appeal

Citation:  Nova Scotia Liquor Corporation v. Nova Scotia (Board of Inquiry), 2016 NSCA 28

Date: 20160420

Docket: CA 438443

Registry: Halifax

Between:

Nova Scotia Liquor Corporation

Appellant

v.

Nova Scotia Board of Inquiry under the Human Rights Act, the Nova Scotia Human Rights Commission, Pearl Kelly, and the Attorney General of Nova Scotia

Respondents

 

Judges:	Scanlan, Oland and Bourgeois, JJ.A.
Appeal Heard:	December 1, 2015, in Halifax, Nova Scotia
Held:	Appeal allowed in part, per reasons for judgment of Bourgeois, J.A.; Scanlan and Oland, JJ.A. concurring
Counsel:	Bradley Proctor and Kyle MacIsaac, for the appellant/respondent on cross-appeal Ann Smith, Q.C., for the respondent Nova Scotia Human Rights Commission Barry Mason, Q.C. and Laura Veinot, for the respondent Pearl Kelly/appellant on cross-appeal Edward A. Gores, Q.C. for the Attorney General of Nova Scotia, not appearing

 

 

Reasons for judgment:

[1]             Pearl Kelly began working for the Nova Scotia Liquor Corporation in 1994 as a casual clerk.  That position became full-time, and she eventually advanced to holding the position of store manager in a number of locations. 

[2]             Ms. Kelly filed a complaint against her employer with the Nova Scotia Human Rights Commission on March 3, 2009 alleging a number of actions on the part of the NSLC which, in her view, were discriminatory based on her gender and mental disability.

[3]             Those allegations have been consistently denied by the NSLC, both in the initial stage of responding to the complaint, before the Board of Inquiry, and finally before this Court.  The NSLC submits that during the course of Ms. Kelly’s employment, it undertook appropriate performance management efforts which have been mischaracterized by her as bullying, harassment, and intimidation.

[4]             Lynn M. Connors, Q.C., sitting as a Board of Inquiry heard evidence and submissions from the parties over 14 days.  On March 16, 2015, the Board released its 116 page decision, some 6 years from the date of Ms. Kelly’s original complaint.  As will be subsequently discussed, the Board found that some, but not all, of Ms. Kelly’s allegations of wrong-doing did constitute discrimination contrary to the Human Rights Act, R.S.N.S. 1989, c. 214.  

[5]             There is disagreement between the parties to this appeal as to what, precisely, the Board did find in relation to a number of key points.  This relates not only to whether definitive findings of discrimination were made in relation to certain specific complaints, but also the import of the Board’s comments regarding the duty to accommodate.

[6]             With respect, there is reason for confusion.  The Board’s decision often lacks clarity.  That unfortunately gave rise to the interpretative difficulties underpinning much of this appeal and cross-appeal.  In addressing some of the issues to follow, this Court must first determine what exactly the Board decided.

[7]             The NSLC challenges some, but not all of the Board’s conclusions.  Ms. Kelly also takes objection with two narrow aspects of the decision, and has filed a cross-appeal.  The Nova Scotia Human Rights Commission participated in the appeal, and with one exception, supports the outcome advanced by Ms. Kelly in response to the appeal.  The other two named respondents did not participate. 

Background

[8]             Although Ms. Kelly started as a casual store clerk, she advanced significantly within the NSLC’s organization.  By 2001, she had been promoted to a Class 2 store manager.  Two years later, she was again promoted to a Class 4 store manager, being the first female to be promoted to that level.

[9]              In her complaint to the Commission, Ms. Kelly alleged the promotion in 2003 marked the beginning of an onslaught of bullying, harassment, and discriminatory treatment at the hands of three specified management employees.  She further alleged that the NSLC failed to address the inappropriate behaviours of its management staff.

[10]        In her complaint Ms. Kelly described several circumstances in support of her allegation that she had been discriminated against in her employment on the basis of her sex and disability.  Although Ms. Kelly identified numerous incidents of alleged discrimination, only a few are directly relevant to the outcome of this appeal.

[11]        Ms. Kelly alleged she was not permitted to work at a wine fair by management because she was pregnant.  Although not specified in the complaint, there is no dispute that this incident took place in 2004.

[12]        The complaint further alleged Ms. Kelly was treated differently in her performance evaluations than her male counterparts.  She alleged that as a female, she was unfairly treated in terms of her evaluations, and held to a higher standard than male store managers.

[13]        During the course of her employment, Ms. Kelly took several leaves due to her pregnancies. On more than one occasion, her promotions coincided temporally with her pregnancy or maternity leave.  Ms. Kelly articulated her concern as follows in her complaint:

It was also during this period of 2003-2008 that it also became a standing joke among male managers and other male employees that whenever I received a promotion, I would get pregnant.  This was said to me by the manager of the Truro store, Rex Barnhill, and his male employees.  This also happened at one of the managers meeting in Truro where Rex commented that he heard I was pregnant again and continued to make comments regarding it.  Also, it was reported to me by Robert Webb, in May of 2007, that he and other employees of the Antigonish store heard the manager, Ronnie LeBlanc, make comments regarding this and included that I did not deserve my job or the position I had and that I was nothing but a “shit disturber”.

[14]        At the hearing, the Board heard evidence in relation to the above allegation, including that Ms. Kelly was referred to in the workplace as “Pregnant Pearl in Pictou”.

[15]        Ms. Kelly went on sick leave on May 28, 2008.  She alleged that the NSLC then began disciplining her for “frivolous” concerns, and that disciplinary letters sent to her while on sick leave constituted discrimination based on her mental disability.  She identified a letter received in December 2008 as particularly upsetting:

The Respondent is continuing to treat me unfairly and negatively while I am ill.  Most recently, on December 19, 2008, I was delivered a disciplinary-type letter dated December 17, 2008 from Danny MacMillan, Director of Retail Operations.  The letter chastised me for having picked up my holiday bonus (2 bottles of wine) from the Stellarton location on December 13, 2008.  I was not informed that there was any problem with my doing so by anyone at the Stellarton location at the time.  The first notice I received that this was a problem was by this registered letter on December 19, 2008.  The letter specifically questioned my integrity and instructed me that I was not to return to the Stellarton location until I was cleared to return to work.

This is another example of the Respondent trying to find reasons to discipline me.  Given that the reason I am on sick leave is because of anxiety from having been bullied by management, I believe this letter amounts to a failure to accommodate.

[16]        Although the parties attempted to negotiate a return to work in 2009, Ms. Kelly has never returned to her employment.

[17]        The Board heard the matter over 14 days spread over a full year (July 2013 to July 2014).  In addition to significant viva voce evidence, the Board had the benefit of detailed written submissions, including the Commission’s investigative report and the parties’ responses, and voluminous documentary evidence.  In its lengthy decision released in March 2015, the parties saw divided success.

[18]        The conclusions reached by the Board central to this appeal will be addressed in further detail in the analysis to follow.  At this point, its summary of conclusions is sufficient:

1.That the wine fair incident is not a standalone act of discrimination and is statute barred, but as previously stated, is evidence to prove ongoing misconduct by the Corporation;

2.In relation to Ms. Kelly’s performance appraisal prepared by Mr. Whittemore for 2006-2007 and in comparison to Mr. LeBlanc’s performance appraisal for 2007-2008 she was discriminated against because of her sex, because Mr. Whittemore made a distinction that had the effect of imposing a burden upon Ms. Kelly that was not imposed upon Mr. LeBlanc.  Ms. Kelly was held at a much higher standard in the preparation of her performance appraisal than Mr. LeBlanc.  Ms. Kelly had significantly less serious performance issues than Mr. LeBlanc.  Mr. LeBlanc’s performance appraisal rating was the same as Ms. Kelly’s.  Further, the lack of direction provided by the Corporation to Ms. Kelly, in relation to her development plan, as compared to Mr. LeBlanc, was discriminatory based on her sex.  The lack of support provided to Ms. Kelly and [sic] imposed a burden upon her that was not imposed on Mr. LeBlanc;

3.In relation to the acronym “Pregnant Pearl in Pictou” I find that the statement made by Mr. Barnhill at the Managers meeting to the effect that whenever Ms. Kelly became pregnant she would receive a promotion, was a discriminatory statement because it negatively linked her position as a Manager 4 within the Corporation to her gender and/or pregnancy.  Ms. Kelly was the only female Manager 4 in that region.  There was no evidence of any specific burden having been imposed upon Ms. Kelly because this statement was made, however, it is evidence of a sexist attitude towards her within her male dominated managerial work environment;

4.That as of May 28, 2008 Ms. Kelly was suffering from a mental disability, which is a prohibited ground under section 5 of the Act.  I find that the December 17 2008 [sic] discipline letter was evidence of discriminatory conduct towards Ms. Kelly because of her disability;

5.I find that the Back-to-Work Protocol complies with the legal requirements of the duty to accommodate, if and when, Ms. Kelly is deemed able to return to work.  I find that, on the face of it, a prohibition from never having to never report to Mr. Whittemore as Ms. Kelly’s regional manager is an undue hardship, however before a final determination is made, the protocol should be implemented and evidence of how the protocol has been implemented and how Ms. Kelly and Mr. Whittemore have done should be lead and adjudicated on before a final determination is made on the question of undue hardship.

I have not heard from Counsel in relation to damages and/or remedy.  I reserve on those two issues and the Board of Inquiry will reconvene to hear submissions on those two outstanding issues at a mutually agreed to date and time for Counsel for the Commission, Counsel for the Complainant, and Counsel for the Corporation.

 

 

Issues

[19]        The NSLC originally put forward 12 grounds in the Notice of Appeal.   These were subsequently restated and condensed in its written submissions.  Ms. Kelly structured her arguments in reply around the re-formulated grounds, and as such, I will do the same.  The issues before the Court on the appeal are:

A.    Did the Board err in law by finding that Ms. Kelly’s performance appraisal in 2006-2007 constituted discrimination on the basis of sex?

B.     Did the Board err in law by concluding that the December 17, 2008 letter from the NSLC to Ms. Kelly amounted to discrimination on the basis of mental disability?

C.     Did the Board err in law by admitting certain medical evidence as expert opinion in the absence of a properly qualified expert?

D.    Did the Board err in law by concluding that the NSLC caused Ms. Kelly’s mental disability?

E.     Did the Board err in law by failing to give reasons on key issues of credibility?

F.      Did the Board err in law when it made its factual and legal findings in relation to the “Pregnant Pearl in Pictou” comment?

G.    Did the Board err in law by treating statute barred conduct that was not discriminatory under the Act as evidence of ongoing misconduct by the Corporation?

H.    Did the Board err in law by retaining jurisdiction to determine, at some future date, based on as yet unknown facts, whether the NSLC had met its obligation to accommodate Ms. Kelly?

[20]        On the cross-appeal, two grounds are advanced by Ms. Kelly:

A.     Did the Board err in determining the nature of the test for the duty to accommodate under the Human Rights Act?

B.     Did the Board err in finding that the mediated Back-to-Work Protocol was sufficient for the NSLC to discharge its duty to accommodate the Cross-Appellant’s disability?

 

 

Standard of Review

[21]        Given that the parties hold diverging views as to what the Board actually decided on a number of key points, it is hardly surprising there is no agreement with respect to the standard of review.  

[22]        The standard of review analysis is necessarily informed by what this Court has authority to consider.  The right to appeal a board of inquiry’s decision to this Court is founded in s. 36(1) of the Human Rights Act.  It provides:

Any party to a hearing before a board of inquiry may appeal from the decision or order of the board to the Nova Scotia Court of Appeal on a question of law in accordance with the rules of court.

[23]        As will be expanded upon in the analysis to follow, some of the issues raised on this appeal challenge findings of fact made by the Board.  Given the scope of s. 36(1), this poses difficulty for those seeking to advance such arguments.  In   International Association of Fire Fighters, Local 268 v. Adekayode, 2016 NSCA 6,            Fichaud, J.A. considered s.36(1) and noted that the door to reviewing the factual findings of a board of inquiry may only be cracked where there is no evidence upon which such conclusions could have been reached.  He wrote:

[42]  This appeal also challenges the Board’s findings of fact. Where, as here, the statutory right of appeal is limited to an issue of law, the Court may review a finding of fact only if there is no supporting evidence from which the finding may be made or the inference reasonably drawn. That is because a finding based on no evidence is arbitrary, and a tribunal errs in law by acting arbitrarily in any aspect of its process, including fact-finding. The standard of review would be reasonableness (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, paras. 34, 38-9, 42), though it is difficult to conceive how an arbitrary finding could be reasonable. Alternatively, if there is some evidence, then the tribunal’s factual findings and inferences are not appealable under the statute, nor are assessments of credibility, meaning the standard of review is not an issue. Fashoranti v. College of Physicians and Surgeons of Nova Scotia, 2015 NSCA 25, paras. 20-21, leave denied Sept. 3, 2015 (S.C.C.); Fadelle v. Nova Scotia College of Pharmacists, 2013 NSCA 26, paras. 12-17, and authorities there cited. See also Nova Scotia v. Play it Again Sports Ltd., para. 50. (Emphasis added)

[24]        The standard of review will be addressed in the analysis to follow.  However, at this juncture, a few observations are warranted. 

[25]        This is clearly an appeal of an administrative decision.  However, the NSLC and Commission submit that Housen v. Nickolaisen, 2002 SCC 33, applies to at least portions of their proposed standard of review analysis, saying that factual findings made by the Board should be reviewed for “palpable and overriding error”.

[26]        Such submissions miss the mark on two counts.  Firstly, factual findings or inferences drawn therefrom, will not, absent the narrow circumstances noted above, be the fare of appeals to this Court.  Secondly, Housen has no place in the review of decisions from a board of inquiry under the Human Rights Act, or any other administrative body.  One instead looks to Dunsmuir v. New Brunswick, 2008 SCC 9, and the decisions which have followed therefrom, for the standard of review – it is correctness or reasonableness.

[27]        When to apply the two alternatives, was nicely summarized by Fish, J. in Smith v. Alliance Pipeline Ltd., 2011 SCC 7 as follows:

[26]  Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’” (Dunsmuir, at para. 60 citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires” (paras. 58-61). On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54). 

[28]        As noted by Fichaud, J.A. in Adekayode, the quasi-constitutional nature of human rights legislation makes it necessary to consider whether the issues in question engage the application or transference of constitutional principles (¶ 32 - 40).  If so, as in that case, a correctness standard must be applied.  This appeal did not raise such issues.

[29]        It is also worthy of note that an issue relating to the Board’s jurisdiction is before the Court.  Dunsmuir directs that a “true question of jurisdiction or vires” will attract a correctness standard.  However, such circumstances will be rare.  Many issues presented as going to jurisdiction will be more properly viewed as a decision-maker’s interpretation of its home statute.  In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, Rothstein, J. notes:

[39]  What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly from Alliance (para. 26).  True questions of jurisdiction are narrow and will be exceptional.  When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness.  As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness.

[30]        See also Izaak Walton Killam Health Centre v. Nova Scotia (Human Rights Commission), 2014 NSCA 18; Tri-County Regional School Board v. Nova Scotia (Human Rights Board of Inquiry), 2015 NSCA 2, and Foster v. Nova Scotia (Human Rights Commission), 2015 NSCA 66.

[31]        As noted earlier, the Board’s decision has given rise to interpretative differences amongst the parties.  Although not a free-standing ground of appeal, concerns regarding the sufficiency of the written reasons are woven throughout the NSLC’s submissions.  In reviewing the Board’s conclusions, a reasonableness standard is engaged (Fashoranti v. College of Physicians and Surgeons of Nova Scotia, 2015 NSCA 25; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62).

[32]        In Newfoundland Nurses’, Justice Abella described how sufficiency of reasons is inextricable from the reasonableness analysis:

14     Read as a whole, I do not see Dunsmuir as standing for the proposition that the "adequacy" of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses - one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at ss.12: 5330 and 12: 5510). It is a more organic exercise - the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes" (para. 47).

15     In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show "respect for the decision-making process of adjudicative bodies with regard to both the facts and the law" (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.

16     Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

. . .

18     Evans J.A. in Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221, explained in reasons upheld by this Court (2011 SCC 57, [2011] 3 S.C.R. 572) that Dunsmuir seeks to "avoid an unduly formalistic approach to judicial review" (para. 164). He notes that "perfection is not the standard" and suggests that reviewing courts should ask whether "when read in light of the evidence before it and the nature of its statutory task, the Tribunal's reasons adequately explain the bases of its decision" (para. 163). I found the description by the Respondents in their Factum particularly helpful in explaining the nature of the exercise:

When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum - the result is to be looked at in the context of the evidence, the parties' submissions and the process. Reasons do not have to be perfect. They do not have to be comprehensive. [para. 44]

 

[33]        I will apply the above principles when addressing the Board’s reasons in this appeal.

 

Analysis

A.      Did the Board err in law by finding that Ms. Kelly’s performance appraisal in 2006-2007 constituted discrimination on the basis of sex?

[34]        In her complaint Ms. Kelly alleged that she was held to “a different standard” than her male counterparts in terms of her annual performance evaluations.  The NSLC responded to those allegations by insisting that all of Ms. Kelly’s performance evaluations were accurate; and any negative comments were appropriate responses to legitimate performance issues.

[35]        The Board heard evidence regarding Ms. Kelly’s performance appraisals which covered a number of years, and how these compared to those of other managers in the region, all male.  Particular focus was placed upon Ms. Kelly’s appraisals for 2006-2007 and 2007-2008, which the Board extensively considered in its reasons.  Both appraisals had been conducted by Mr. Whittemore, Ms. Kelly’s regional manager.

[36]        The Board dismissed Ms. Kelly’s allegation that she was discriminated against in relation to her performance appraisal, as compared to another manager, Mr. Barnhill.  Both were evaluated by Mr. Whittemore in the 2006-2007 year.  Although having found a prima facie case of discrimination, the Board was satisfied that the NSLC had established the existence of legitimate performance issues within the evaluation period, which warranted the noted differences between Ms. Kelly’s and her counter-part’s evaluations.  This conclusion has not been appealed, but does inform the NSLC’s argument with respect to the Board’s subsequent finding.

[37]        The Board then compared Ms. Kelly’s 2006-2007 performance evaluation to that of another male manager undertaken in 2007-2008.  Having earlier concluded that Ms. Kelly had demonstrated legitimate performance issues, the Board noted Mr. LeBlanc had received a comparable rating, despite what was submitted to be substantially more serious performance concerns.

[38]        The Board canvassed Ms. Kelly’s arguments and reached the following conclusion:

One wonders how someone like Mr. LeBlanc with the issues that were outlined in the letter of July 17^th, 2007, could rate such an appraisal.

Counsel for Ms. Kelly submits that in effect, Mr. LeBlanc, who had significant alleged shortcomings in his performance, somehow received better treatment because (a) the Corporation actually conducted a full investigation before imposing discipline and (b) he was provided with a written development plan to comply with.  This allegedly resulted in his “meets most objectives” performance appraisal for the time period of June, 2007 until June of 2008.  This is the same time period that he was investigated, removed from his store and directed to comply with the development plan that was laid out for him by the Corporation.

Ms. Kelly on the other hand received no concrete direction on what was required of her in her development plan and was sanctioned when it was not forwarded to Mr. Whittemore on time.

 . . .

There is no rational explanation for Mr. LeBlanc’s performance appraisal in 2007 – 2008 given the history that is documented in the July 17, 2007 letter, in comparison to Ms. Kelly’s 2006 – 2007 performance appraisal and, as well, the documented issues that she was experiencing under the supervision of Mr. Whittemore.

I find based on the comparison of Mr. LeBlanc’s performance appraisal for 2007–2008 and Ms. Kelly’s performance appraisal of 2006–2007 that there is a prima facie case that Ms. Kelly received adverse treatment in relation to her performance appraisals conducted by Mr. Whittemore which negatively affected her employment.  I also find that the Corporation has not lead [sic] sufficient evidence to dissuade me from my finding that Ms. Kelly received adverse treatment in relation to her 2006–2007 performance appraisal as compared to the performance appraisal for Mr. LeBlanc for the time period of June 2007–2008, both of which were prepared by Mr. Whittemore.  I further find that Ms. Kelly received adverse treatment because of the lack of support and direction she received in the preparation of her development plan, as compared to what occurred in the reformation of Mr. LeBlanc, which negatively impacted her employment.  The Corporation has not lead [sic] evidence to establish a credible and rational explanation on a balance of probabilities that its actions were [not] discriminatory.[sic]

[39]        The NSLC challenges the above conclusion submitting “it is necessary to review the Board’s path of reasoning as it demonstrates that not only did the Board fail to apply the proper test for discrimination, it also made contradictory and unsupportable findings on the evidence”.   In my view, the bulk of the NSLC’s concern in relation to the Board’s conclusion is founded upon the Board’s treatment of the evidence before it.  This is demonstrated in the NSLC’s written argument:

49.  Neither the evidence nor the analysis can support the Board’s finding as reasonable as none of the elements of the test for discrimination are present.  First, no distinction can be found between Ms. Kelly’s and Mr. LeBlanc’s evaluations.  They are for different years, have different criteria and follow very different performance management paths.

50.  Second, there is nothing to even suggest that gender was a factor in any distinction (even if one were present).  Simply because Ms. Kelly is female, does not mean that if she is treated differently from another employee it must be based on gender.  There was ample evidence before the Board regarding Ms. Kelly’s performance issues leading up to her 2007 evaluation.  There was also ample evidence before the Board about the efforts taken by Mr. LeBlanc over the course of a full year to improve his performance.  This is in contrast to Ms. Kelly’s refusal to acknowledge any shortcomings and her refusal to participate in putting a development plan in place to improve.

51.  Third, there is no analysis by the Board of the fact that Ms. Kelly’s 2007 performance rating of “Met most standards but needs development in some areas” remained unchanged from her 2006 performance rating which was also “Met most standards but needs development in some areas” which was completed by an entirely different manager, Mr. Paul Rapp.

52.  To the extent that there was a distinction made between Mr. LeBlanc and Ms. Kelly in their performance appraisals, there is nothing to suggest that the distinction was based on gender, rather than on performance.  This finding must be set aside.

[40]        In challenging the Board’s conclusion, the NSLC has not suggested that there was no evidence upon which the factual conclusions could have been made, but rather the evidence was misinterpreted or misapplied.  With respect, unless an error of law is apparent elsewhere in the reasons, this Court cannot intervene.

[41]        There is no suggestion that the Board misidentified the test for discrimination.  The NSLC argues the Board did not apply it, or alternately did not adequately address it in reaching its conclusion.  This engages the Board’s application of its home statute and the sufficiency of reasons, both of which give rise to a reasonableness standard.

[42]        The parties agree with respect to what is required for a finding of discrimination.  The starting point is s. 4 of the Human Rights Act which provides:

4.  For the purpose of this Act, a person discriminates where the person makes a distinction, whether intentional or not, based on a characteristic, or perceived characteristic, referred to in clauses (h) to (v) of subsection (1) of Section 5 that has the effect of imposing burdens, obligations or disadvantages on an individual or a class of individuals not imposed on others or which withholds or limits access to opportunities, benefits and advantages available to other individuals or classes of individuals in society.

[43]        Similar definitions appear in the other legislative schemes across the country.  There has been ample opportunity for courts to consider the content and application of the statutory definitions of discrimination.  The parties cite Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 as the most recent statement of the test for discrimination in the human rights context.  Although considering the Quebec Charter of Rights, the principles contained therein have broad applicability.

[44]        In Bombardier, Justices Wagner and Côté succinctly set out a three-part test for a finding of discrimination:

[35]  First, s. 10 requires that the plaintiff prove three elements: “(1) a ‘distinction, exclusion or preference’, (2) based on one of the grounds listed in the first paragraph, and (3) which ‘has the effect of nullifying or impairing’ the right to full and equal recognition and exercise of a human right or freedom” (Forget, at p. 98; Ford, at pp. 783‑84; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790, at p. 817; Bergevin, at p. 538).

 

[36]  If these three elements are established in accordance with the degree of proof we will specify below, there is “prima facie discrimination”. This is the first step of the analysis.

[45]        They then proceeded to consider the content of the elements required to establish a prima facie case of discrimination.  With respect to the obligation to establish differential treatment, the Justices noted:

42 . . .The plaintiff must prove the existence of differential treatment, that is, that a decision, a measure or conduct “affects [him or her] differently from others to whom it may apply”: O’Malley, at p. 551.  This might be the case, for example, of obligations, penalties or restrictive conditions that are not imposed on others: ibid.; see also Andrews, at pp. 173-174.

[46]        Justices Wagner and Côté then addressed competing views advanced with respect to the third element.  Must a commission or complainant show a “causal connection” between a prohibited ground and the differential treatment experienced, or did it suffice that the ground was a factor in the objectionable treatment?  They concluded that requiring a causal relationship was problematic, preferring terms such as “factor” or “connection”:

49     In a recent decision concerning the Human Rights Code, R.S.O. 1990, c. H.19, the Ontario Court of Appeal found that it is preferable to use the terms commonly used by the courts in dealing with discrimination, such as "connection" and "factor": Peel Law Assn. v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 80, at para. 59. In that court's opinion, the use of the modifier "causal" elevates the test beyond what is required, since human rights jurisprudence focuses on the discriminatory effects of conduct rather than on the existence of an intention to discriminate or of direct causes: para. 60. We agree with the Ontario Court of Appeal's reasoning on this point. Moreover, this Court used the term "factor" in a recent decision concerning British Columbia's human rights code: Moore, at para. 33.

. . .

51     A close relationship is not required in a discrimination case under the Charter, however. To hold otherwise would be to disregard the fact that, since there may be many different reasons for a defendant's acts, proof of such a relationship could impose too heavy a burden on the plaintiff. Some of those reasons may, of course, provide a justification for the defendant's acts, but the burden is on the defendant to prove this. It is therefore neither appropriate nor accurate to use the expression "causal connection" in the discrimination context.

52     In short, as regards the second element of prima facie discrimination, the plaintiff has the burden of showing that there is a connection between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complains or, in other words, that the ground in question was a factor in the distinction, exclusion or preference. Finally, it should be noted that the list of prohibited grounds in s. 10 of the Charter is exhaustive, unlike the one in the Canadian Charter: City of Montréal, at para. 69.

[47]        Justices Wagner and Côté were careful however, to confirm that the move away from causation terminology did not equate to a burden of proof less than the balance of probabilities (¶ 55 and 56).

[48]        In the case on appeal, the Board identified the legal onus for establishing discrimination:

The onus is on the Complainant to establish that she was discriminated against based on an enumerated ground.  The Complainant must establish a prima facie case on the balance of probabilities.  The employer then can rebut the onus, and then the onus shifts to the Complainant to show that the explanation is not reasonable but amounts to a pretext or a disguise for the Respondent’s otherwise discriminatory conduct . . .

There are three steps to the Complainant establishing that she has established a prima facie case on the balance of probabilities.  The first is that the Complainant falls within a protected ground of [sic] characteristics.  The second is the establishment of the adverse treatment.  The third is that the protected ground or characteristic is a factor in the adverse treatment . . .

[49]        On its face, the above is in line with both s. 4 of the Act, and Bombardier.   Although the NSLC makes much of the fact that the compared appraisals were done in different years, and with different evaluation tools, I cannot accept the proposition that the reasons disclose no basis for a finding of a distinction in the treatment of Ms. Kelly and Mr. LeBlanc.  The Board clearly noted that it was not only the outcomes of the evaluations themselves that were problematic, but the very different manner in which the two employees were treated in response thereto.  The record supports the reasonableness of that conclusion.

[50]        The NSLC does in my view, raise a valid concern that the Board’s reasons are silent with respect to how Ms. Kelly’s gender contributed to the finding of discrimination.  However, this Court is not to review the reasons for perfection, nor whether they could have been improved, but rather, based on a broader context including the whole of the decision and the evidentiary record.  This Court must consider whether the conclusion is understandable and falls within the range of reasonable outcomes.  In my view it does. 

[51]        Although the Board’s conclusion relating to the performance evaluation was brief and did not reference Ms. Kelly’s gender as being a factor in the differential treatment, the findings made by the Board elsewhere in the decision make it clear that the Board implicitly viewed Ms. Kelly’s gender as being a negative factor in how she was treated by the NSLC.  That included determining that “Pregnant Pearl in Pictou” was a term which was a regular part of Ms. Kelly’s working life which had been negatively associated with her promotions, and accepting the evidence of a witness that she had heard that term regularly used at the NSLC’s head office.

[52]        I see no reason to interfere with the Board’s conclusion and would dismiss this ground of appeal.

 

B.      Did the Board err in law in concluding that the December 17, 2008 letter from the NSLC to Ms. Kelly amounted to discrimination on the basis of mental disability?

[53]        As noted earlier, Ms. Kelly went on sick leave in May 2008 after which she received three disciplinary letters from the NSLC.  She argued all constituted discrimination on the basis of mental disability.  The Board found only one constituted discriminatory conduct.

[54]        Briefly, on October 20, 2008 the NSLC sent a letter to Ms. Kelly relating to her “gossiping” and making negative comments about other employees and her employer in a public manner.  A second letter, dated December 17, 2008 was sent to Ms. Kelly in relation to her removing two bottles of wine, traditionally given to staff as a Christmas bonus, from a store without permission.  The third letter, sent June 29, 2010 sought to reprimand Ms. Kelly in relation to her recent request to have another employee forward an email on her behalf to all members of the local union. 

[55]        Only the letter relating to the “wine incident” was found to constitute discriminatory behaviour on the NSLC’s part.  Although the Board reviewed in considerable detail the letters and the evidence as to why they were sent, the analysis as to the finding of discrimination is brief.  With respect to the two letters which did not attract censure, the Board found:

•                    An employer has the right to communicate with an employee for legitimate disciplinary purposes, even when on sick leave;

•                    Although the contents were upsetting to Ms. Kelly, the “gossiping letter” was appropriate, given Ms. Kelly’s behaviour – she had been gossiping;

•                    The June 2010 letter was “another example” of Ms. Kelly engaging in behaviour contrary to her employment relationship, and the contents of the letter were appropriate in “tone and content”.

[56]        I set out the Board’s reasoning relating to the discriminatory nature of the “wine incident” letter in its entirety:

The letter that I have concern with is the wine incident letter.  The timing of the sending of the letter was insensitive.  I suspect that the truth of what happened lies somewhere between the evidence of Ms. Kelly and Ms. McKenzie.  Ms. Kelly had been a long standing employee of the Corporation and it would have been petty and mean spirited not to have made arrangements for her to receive the Christmas bonus the Corporation provided yearly for their employees, and not tell her that it was forthcoming.  However, I find that Ms. Kelly overstepped the appropriate boundaries by taking the wine without speaking with the acting Manager, Ms. White.

Ms. Kelly had been a long standing employee of the Corporation.  Sending a registered letter without making inquiries as to Ms. Kelly’s health status, given the contents of the letter, was not appropriate particularly given Ms. Kelly’s described behaviour in the store.  If her behaviour was as described by Ms. McKenzie, her behaviour was completely out of context to Ms. Kelly’s previous behaviours in the workplace.  Her conduct that day should have been a red flag that all was not well with Ms. Kelly.  From the contents of the letter, Mr. McMillan already decided who’s [sic] version of events he was going to believe.  He suggests that her actions lacked integrity when there is no history of Ms. Kelly taking something that she was not entitled to previously.  Given Ms. Kelly was absent from work due to acute depression and situational anxiety and given, as early as June 16, 2008, the Corporation was put on notice that Ms. Kelly had filed a Workers Compensation claim based on her symptoms of work related anxiety, the Corporation should have chosen it’s [sic] words more carefully.  Further, if one reviews the emails of Lynda White and Donnie Whittemore of Saturday, December 13, 2008, the tenor of those emails is more about Ms. Kelly going behind the back of the current Manager versus acting in the way described by Karen McKenzie.

I find the Corporation ought to have known, that Ms. Kelly’s behaviour in the store was as a result of her disability, because there was no previous history of Ms. Kelly behaving in that way.  Given the timing and the tone of the correspondence, the Corporation should have contemplated the effect that the correspondence would have on Ms. Kelly.  The sending of the discipline letter was evidence of ongoing discriminatory conduct towards Ms. Kelly, this time based on her disability.  The Corporation has not established a credible and rational explanation demonstrating on the balance of probabilities that its actions were not discriminatory.

[57]        Although the NSLC challenges the evidentiary basis for the Board’s finding that Ms. Kelly suffered a mental disability in later grounds, the focus here is squarely the application of the test for a finding of prima facie discrimination, and the sufficiency of reasons in relation thereto.  Clearly, the standard of review is reasonableness.

[58]        The NSLC makes its argument succinctly in its factum:

60.  The finding that the December 17, 2008 letter was “discriminatory” is not based in law.  The Board did not even consider the elements of discrimination in making the finding.  What is the differential treatment that the Board is alleging that the Corporation engaged in?  Is the Board saying that sending a letter to a person with a mental illness as a result of improper conduct is “discrimination” under the Human Rights Act?  Is the Board saying that some letters can be sent to a person with a mental illness but not others?  Is the Board saying that given Ms. Kelly’s disability, the Corporation should have accommodated her disability by changing the wording of the letter or by communicating with Ms. Kelly in some other way?

61.  All of these questions beg the answer that the Board’s finding that the December 17, 2008 letter is discrimination under the Act is unreasonable.  The Board did not even consider the elements that had to be established to lead to a finding of discrimination under the Act.  There is simply no intelligible path of reasoning leading to this finding.

[59]        In my view, the questions posed by the NSLC are justified.  On the face of the decision, it is difficult to understand how the “wine incident” letter was found to be discriminatory, when the other two were not.  All three were sent to an employee, suffering from a mental disability, while on sick leave.  All three were disciplinary in nature.  In all three cases, the Board found reason to criticize Ms. Kelly’s conduct giving rise to the discipline.  The only noted distinctions were the “tone and content” of the offending letter, and that the Board “should have known” Ms. Kelly’s behaviour was because of her mental disability.  The Board’s complete failure to relate that letter to the required elements for a finding of prima facie discrimination compounds the interpretative difficulty. 

[60]        In attempting to decipher the Board’s rationale, I add an additional query to those posed by the NSLC: was it the act of sending the letter (perhaps based on insufficient investigation or the time of year) which made the conduct discriminatory; or was it the particular contents?  Notwithstanding a careful review of the reasons and record, it is not clear how the “wine incident” letter was found to meet the three-part test for a finding of discrimination.  Unlike with the Board’s finding of gender discrimination, there is nothing to be gleaned from a broader contextual analysis which assists in filling in the gap.

[61]        In particular, I am at a loss as to how the “wine incident” letter, based on the record, met the obligation to establish that Ms. Kelly was differentially treated.  Both s. 4 of the Act and the case authorities are clear.  It is not sufficient that a complainant is subjected to unfavourable, insensitive, or petty treatment, rather it must be adverse treatment different from that imposed on other individuals or identified groups.  Not only is an analysis of that requirement absent in the reasons, the evidence of a distinction between Ms. Kelly and others is absent from the record.  It is entirely unclear whether Ms. Kelly, in being sent the letter, was treated differently from non-disabled employees; differently from other disabled employees who had received letters with a more acceptable “tone”; or differently from some other group or individual.

[62]        Absent a finding of a necessary distinction, the Board’s conclusion is unreasonable.  I would allow this ground of appeal and set aside the Board’s finding of discrimination on the basis of mental disability.

C.      Did the Board err in law by admitting certain medical evidence as expert opinion in the absence of a properly qualified expert?

D.      Did the Board err in law by concluding that the NSLC caused Ms. Kelly’s mental disability?

[63]        I will address the above issues together, as the NSLC’s arguments are intertwined.  The purpose of the NSLC’s submissions is two-fold.  It challenges the Board’s finding that Ms. Kelly suffered from a mental disability, and secondly, that such was caused by the actions of the NSLC.  Determining whether a complainant suffers a “mental disability” engages the application of the Board’s home statute, and as such, will be reviewed for reasonableness.  The Board’s finding of causation however, is different.  It is a finding of fact, and can only be reviewed by this Court in the event there was no evidence before the Board to support that conclusion.  The NSLC makes that precise argument by attacking the admissibility of the evidence accepted and seemingly relied upon by the Board.

[64]        Expert evidence was called at the hearing.  Dr. Tragakis, Ms. Kelly’s treating psychologist, was qualified as an expert in adult and adolescent psychology.  His evidence is referenced by the Board extensively in its reasons.  The Board repeatedly and erroneously referred to Dr. Tragakis as a “medical” expert.  However, despite the NSLC making much of the misnomer, as will become apparent in the analysis to follow, nothing turns on that error.  The Board also admitted the medical reports of two physicians, Drs. MacDonald and Fuhrman who had either assessed or treated Ms. Kelly.  They did not testify.

[65]        The NSLC’s objections to the above evidence and the Board’s treatment of it can be summarized as follows:

•                    As a psychologist, Dr. Tragakis was not a properly qualified medical expert, and as such, his opinion evidence should not have been admitted, nor relied upon by the Board in reaching its conclusions;

•                    The Board should not have admitted, nor relied upon the medical reports of the two doctors as they had not provided viva voce evidence, nor were they subject to cross-examination;

•                    There was no properly admitted medical evidence upon which the Board could find Ms. Kelly suffered a mental disability or its cause; and

•                    The Board’s reasons were unintelligible and riddled with inconsistency in the treatment of the evidence giving rise to the findings of mental disability and causation.

[66]          The NSLC submits the Board admitted and relied improperly on hearsay in the form of the medical reports and erred by finding Ms. Kelly to have a mental disability in the absence of properly admitted evidence of a medical diagnosis.  The NSLC cites no authority from the human rights context in support of its allegations of error.  It cites no authority at all.  Rather, it relies on general principles relating to hearsay and expert evidence, such as those commonly heard in the courtroom.

[67]        However, a board of inquiry is not bound by the same evidentiary considerations as a court.  Section 7 of the Human Rights Act regulations, N.S. Reg.221/91 provides:

7.  In relation to a hearing before a Board of Inquiry, a Board of Inquiry may receive and accept such evidence and other information, whether on oath or affidavit or otherwise, as the Board of Inquiry sees fit, whether or not such evidence or information is or would be admissible in a court of law; notwithstanding, however, a Board of Inquiry may not receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.

[68]        Privilege was not raised.  As such, there is no merit to the NSLC’s arguments regarding the admissibility of evidence.  It was well within the Board’s purview to accept into evidence the testimony of Dr. Tragakis and the medical reports of Drs. MacDonald and Fuhrman.  What about the Board’s use of the evidence? 

[69]        There is ample authority in the human rights context to refute the NSLC’s assertions that only where a medical diagnosis of mental disability is made can disability be found, and that properly qualified expert evidence is required to make such a finding.

[70]        Although a confirmed medical diagnosis of a recognized mental disorder will certainly assist a complainant in establishing a “mental disability” under the Act, such is not strictly necessary.  In Crowley v. Liquor Control Board of Ontario, 2011 HRTO 1429, in assessing whether a “mental disability” as defined in the Ontario legislation had been established on the evidence before it, the board noted:

63     Rather, consistent with the decision in Skytrain, supra, I agree that in order to meet the definition of mental disability within the meaning and protection of the Code, where the case does not involve an allegation of discrimination on the basis of perceived disability, there needs to be a diagnosis of some recognized mental disability, or at least a working diagnosis or articulation of clinically-significant symptoms, from a health professional in a report or other source of evidence that has specificity and substance. That is lacking in this case.  . . . (Emphasis added)

[71]        The reasoning in Crowley has been recently followed by the Ontario Superior Court of Justice in Simcoe Condominium Corporation No. 89 v. Dominelli, 2015 ONSC 3661, the court noting:

43     To establish a "mental disability", a diagnosis of some recognized mental disability, or at least a "working diagnosis or articulation of clinically-significant symptoms" that has "specificity and substance" is required.   (Emphasis added)

[72]        I have also found informative a series of decisions arising from a complaint under the Canadian Human Rights Act.  In Desormeaux v. Ottawa-Carleton Regional Transit Commission, 2003 CHRT 2, the board was required to decide whether the complainant suffered a disability due to migraine headaches.  There, as here, the respondent argued the lack of a determinative medical diagnosis prevented a finding of disability.  The board rejected that proposition:

66     Counsel for OC Transpo submits that Ms. Desormeaux did not suffer from a disability, contending that it has not been properly established that Ms. Desormeaux in fact suffers from migraine headaches. Counsel submits that diagnosing migraine headaches is beyond the expertise of Dr. Meehan as a family physician. In the absence of a diagnosis by a neurologist, counsel says, I cannot find that Ms. Desormeaux suffers from migraines.

. . .

68     Further, even if I were to accept counsel's submission in this regard, I would still find that Ms. Desormeaux's headaches constitute a 'disability' within the meaning of the Canadian Human Rights Act. It is undisputed that Ms. Desormeaux has suffered from chronic, debilitating headaches for many years. Whether these headaches are properly classified as migraines, or some other type of headache, is immaterial. Ms. Desormeaux's description of the symptoms, and the effect that these symptoms, as well as the necessary medication, have on her ability to function has not been challenged. It is clear that she has long suffered from a chronic headache condition that periodically causes her to become significantly incapacitated, and interferes with her ability to do her job. This, in my view, constitutes a 'disability' within the meaning of the legislation. (Emphasis added)

[73]        On application for judicial review, the Federal Court found the board’s finding of disability to be unreasonable (2004 FC 1778).  Central in that determination was the conclusion that the family physician, the only medical witness to testify, was not properly qualified, and as such there was no evidence of disability.  On appeal, the Federal Court of Appeal re-instated the board’s finding (2005 FCA 311, leave to appeal ref’d [2005] S.C.C.A. No. 534).  Linden, J.A., for the court wrote:

15     In my view, this conclusion was incorrect. Whether the standard of review for this mixed question of law and fact was reasonableness or patent unreasonableness, the Tribunal's decision on this issue was clearly one that deserved considerable deference. As the Supreme Court established in Granovsky v. Canada, [2000] 1 S.C.R. 703 at para. 34 and in City of Montreal, supra, at para. 71, disability in a legal sense consists of a physical or mental impairment, which results in a functional limitation or is associated with a perception of impairment. In light of this test, there was evidence before the Tribunal upon which it could reasonably find that there was a disability because of the headaches, whether they were migraine headaches, migraine/tension headaches or some other type of severe headache condition. The Report of Dr. Rabinovitch did not really conflict with the evidence of Dr. Meehan; it may have been less forceful and more tentative, but, in any event, the Tribunal was persuaded on all of the evidence that there was disability on the basis of the headaches. The Tribunal's conclusion was certainly a reasonable one based on all the evidence and should not have been upset on judicial review.

[74]        Finally, a recent decision of a board constituted under the Alberta Human Rights Act is also informative.  In Cooper v. 133668899 Ltd. (o/a Best Western Strathmore Inn), 2015 AHRC 6, the issue was whether the complainant had adduced sufficient evidence to establish she suffered a “mental disability” as defined under the legislation.  The board found that she did.  It is clear that in reaching that conclusion the board considered not only the limited medical evidence - a note from a doctor who did not testify – but also a broader evidentiary context:

[32]  The medical note from Dr. Fitzgerald, which was presented to Ms. Cooper’s employers, diagnosed her with a “medical illness (stress)”.  Considering the entirety of the information, I find that Ms. Cooper did suffer from a medical disability, which is a protected ground under the Act.  In reaching this finding I have considered:

            •           The specific wording of Dr. Fitzgerald’s note identified stress as a medical illness in Ms. Cooper’s situation,

            •           Ms. Cooper’s evidence was that she also suffered from depression and insomnia at the time of the termination, and

            •           The information contained in Exhibit 10 confirmed that Ms. Cooper was on medical EI benefits until soon after the end of March 2010.

. . .

[39]  A review of the entire context of the series of events in Ms. Cooper’s complaint confirms that Ms. Cooper had a disability, and the respondent through their actions perceived her to have a disability, bringing her within the protected grounds of the Act.

[75]        In my view, in considering whether Ms. Kelly suffered a mental disability, the Board was entitled to rely upon Dr. Tragakis’ description of his treatment of her, including her presenting symptomology.  Further, the Board was entitled to consider Ms. Kelly’s own evidence with respect to her condition.  There was nothing prohibiting the Board from referencing the other medical information admitted into evidence, nor was the Board prohibited from considering the fact that Ms. Kelly had been approved for LTD benefits on the basis of her mental health.

[76]        Although the NSLC asserts the Board’s reasoning path does not pass muster, I disagree.  The NSLC points to passages which certainly could have been clearer, however, the reasoning is adequate to understand why the decision was reached, especially within the context of the evidence.  I am satisfied that the Board’s conclusion that Ms. Kelly suffered from a mental disability was reasonable.

[77]        The NSLC’s challenge to the Board’s finding of causation also fails.  As evidence was before the Board upon which such a factual finding could be reached, including medical reports and Ms. Kelly’s own testimony, that conclusion is not reviewable by this Court.

E.      Did the Board err in law by failing to give reasons on key issues of credibility?

[78]        A board’s assessment of credibility is shielded from appellate review, provided there is some supporting evidence in the record.  The NSLC seeks to challenge the Board’s credibility findings not on the basis of a lack of evidence, but again, on the sufficiency of reasons.  It submitted that having identified early in the reasons that “there are significant issues of credibility”, the Board failed to “identify or consider issues of credibility when making several important findings in the remainder of the decision”.

[79]        The NSLC points to two findings made by the Board as particularly lacking in terms of how it treated conflicting evidence in reaching its conclusions – the use of the “Pregnant Pearl in Pictou” appellation, and the Christmas “wine incident”.  With respect to the appellation, the NSLC describes its difficulty with the Board’s conclusion as follows:

88.  For example, there was a clear divergence in the evidence as to the use of the term “Pregnant Pearl in Pictou”.  While Pearl Kelly alleged that there was a standing joke among managers that every time she got pregnant she got promoted, this is directly contradicted by the evidence of Derek Atwater and Linda White, according to whom it was Pearl Kelly who made the remark and, according to White, Rex Barnhill was the only other person she heard making it.  The Board clearly found that Ms. Kelly did make the remark and offered speculation as to why she did so:

Ms. Kelly, in her evidence, stated that she did not take any steps in relation to the “Pregnant Pearl in Pictou” acronym because she was in effect just trying to get along in her workplace and felt that nothing would come of it.  I suspect as well, that her statements made to various other employees of the Corporation was a form of self deprecating humor.  That does not mean that she was comfortable with the comment, or that she liked it.

89.  Notwithstanding the Board’s rejection of Ms. Kelly’s evidence that she did not use the phrase, there is no explanation as to how this impacted on credibility findings in other areas.  (Emphasis in NSLC’s quote)

[80]        What the NSLC has overlooked in its criticism is that the Board also heard evidence that the term “Pregnant Pearl in Pictou” was heard spoken at head office, by those in management.  Further, I am not convinced that the Board committed any error, fatal or otherwise, by rejecting Ms. Kelly’s testimony that she never used the term, yet finding her evidence credible in other respects.  It is hardly a novel premise that a trier of fact is entitled to accept all, some, or none of the evidence of any particular witness.  Rejecting Ms. Kelly’s denial that she used the term herself, did not prevent the Board accepting the fact that the appellation was used in referencing Ms. Kelly in a negative fashion at head office, or elsewhere in the workplace.

[81]        Finally, I find nothing objectionable in the Board’s offered explanation for Ms. Kelly’s own use of “Pregnant Pearl in Pictou”.  Ms. Kelly testified that she did not complain when others used the term as she was trying to get along in a difficult workplace, and she felt nothing would come of her complaints in any event.  Contrary to the NSLC’s assertion that the Board engaged in improper speculation, the Board drew an inference from the evidence before it.  There is nothing impermissible about doing so.

[82]        With respect to the “wine incident”, the NSLC levels the following criticism:

90.  The same can be said for the evidence relating to the Christmas gift Incident.  Ms. Kelly adamantly testified that she was calm and did not swear when she went into the back room and took the wine.  Ms. McKenzie’s evidence was in direct contrast.  Instead of resolving the credibility issue, the Board again speculates, stating that it “suspect[s] that the truth of what happened lies somewhere between the evidence of Ms. Kelly and Mr. McKenzie”.

91.  The Board, in effect, stated that it did not know what happened with the Christmas gift Incident.  The Board went on, however, to find that the incident was such that it required the employer at that point in time, to know that Ms. Kelly’s behaviour demonstrated that she was suffering from a mental disability.  The Board goes on to find that sending Ms. Kelly a letter about her behaviour amounts to discrimination under the [Human Rights] Act.

[83]        I have already concluded that the Board’s finding with respect to the “wine incident” is unreasonable, although on a different basis than that now raised by the NSLC.  As such, a lengthy analysis is not required.  I do not see, however, any reason, solely on the basis of the treatment of credibility in the reasons, to interfere with any of the conclusions reached by the Board.

F.      Did the Board err in law when it made its factual and legal findings in relation to the “Pregnant Pearl in Pictou” comment?

[84]        This ground overlaps with the preceding one.  Given that the NSLC has not argued there was an absence of evidence upon which the Board could have made its factual findings, this Court will not delve into a consideration of those conclusions.  Only the Board’s “legal findings” are reviewable.

[85]        It is helpful at this point to set out the Board’s conclusion.  After reviewing in detail the testimony of Ms. Kelly and others in relation to the use of  the “Pregnant Pearl in Pictou” appellation, along with a decision from this Court, Nova Scotia Human Rights Commission v. Play It Again Sports Ltd., 2004 NSCA 132, the Board noted:

Counsel for the Corporation argued that because Ms. Kelly repeated the statements herself, they cannot be found to be offensive or in violation of the Human Rights Act.  In fact, the Corporation’s defence to the allegation is that a number of its employees heard Ms. Kelly make the same types of comments about herself in a jovial joking manner.  Secondly, it is the Corporation’s position that Ms. Kelly was clearly not offended by the comments as she made them herself in the workplace.

[86]        The Board concluded:

Ms. Kelly, in her evidence, stated that she did not take any steps in relation to the “Pregnant Pearl in Pictou” acronym because she was in effect just trying to get along in her workplace and felt that nothing would come of it.  I suspect as well, that her statements made to various other employees of the Corporation as [sic] a form of self-deprecating humor.  That does not mean that she was comfortable with the comment, or that she liked it.  Unfortunately for Ms. Kelly, the Court of Appeal decision in Play it Again Sports Ltd. made it very clear that there is a requirement for some clear and unequivocal indication of her rejection of the appellation.  Further, the Court of Appeal found in Play it Again Sports Ltd. that the Complainant was not offended and she bore no burdens, obligations, or disadvantages on others as a result of the appellation “Kemosabe”.  However, no one else in the employ of the Corporation was referred to as “Pregnant Pearl in Pictou” nor was there any evidence of any other comments being made about other Managers and/or employees of the Corporation obtaining their promotions as a result of pregnancy.  Further, the linkage of career advancement and pregnancy has a negative connotation, the implication being that Ms. Kelly got her promotions because she was pregnant, and not because of on her abilities.  This is what distinguishes Ms. Kelly’s appellation from “Kemosabe” and the fact situation in Play it Again Sports Ltd.  I find that the statement was in fact made by a fellow employee, Rex Barnhill, at a Managers meeting where Ms. Kelly was present, as well as Ms. White.  It was made to Ms. Kelly’s husband by a fellow Manager, Ronnie LeBlanc.  It was also heard by Paula LeBlanc in head office and the statement was made to Ms. Kelly by an employee of the Corporation who worked in EES and repeated the statement to Ms. Kelly while she was working in the Pictou store, who told her that the origin of the statement “Pregnant Pearl in Pictou” came from Rex Barnhill in the Truro store.  I find that Mr. Whittemore was aware of this statement based on his conversation with Ms. Kelly concerning her husband’s conversation in the Antigonish store with Mr. LeBlanc.

Therefore, I find that the comment was made in relation to Ms. Kelly and that it was also made by Ms. Kelly as a way to get along in her workplace.  I find that there is enough circumstantial evidence to establish a prima facie case on the balance of probabilities that the statement was made.  The Corporation has not lead [sic] evidence to rebut that finding.  I distinguish this case from the decision of our Court of Appeal in Play it Again Sports Ltd. as noted above.

[87]        The NSLC submits that given the inherent inconsistencies in the passage above, it is entirely unclear “what the Board’s final finding is on this issue and equally unclear what the effect of its comments are to Ms. Kelly’s claim.”   Did the Board make a finding of discrimination, or did it not? The NSLC notes a finding of discrimination is entirely inconsistent with the Board stating it was “unfortunate” for Ms. Kelly that a clear and unequivocal rejection of an appellation was required, which did not occur.  The NSLC further argues it is also inconsistent with the Board later concluding:

. . .There was no evidence of any specific burden having been imposed upon Ms. Kelly because this statement was made, however, it is evidence of a sexist attitude towards her within her male dominated managerial work environment;

[88]        The NSLC submits that based on the Board’s reasons, the record, and the law, the decision cannot be interpreted as intending to make a conclusive finding of discrimination.  In the alternative, the NSLC asserts that if it is determined that the Board made a finding of discrimination, such is not a reasonable outcome in the circumstances.  In response, both Ms. Kelly and the Commission submit that the Board made a clear and unequivocal finding of discriminatory conduct, and that such was entirely appropriate.

[89]        Without doubt, the Board could have chosen its words more carefully.  A reader, without the benefit of the larger context, may well share the NSLC’s confusion.  I am satisfied however, that the Board did intend to make a finding of discrimination.  Such an outcome is best reflected in the following statement:

I find that there is enough circumstantial evidence to establish a prima facie case on the balance of probabilities that the statement was made.  The Corporation has not lead [sic] evidence to rebut that finding. . .

[90]        The Board, in using the words “prima facie case” and referencing the NSLC’s failure to rebut, is utilizing language reflective of the test for discrimination.  What the Board does however, is relate those terms to a finding that the “statement was made”, not that it constituted discrimination.  The Board in its imprecise drafting, has invited the very type of challenge which the NSLC has brought.  Notwithstanding the criticism, I am satisfied after reviewing the findings made, the Board’s reasons in their entirety and the record, the intent is sufficiently clear.  Having determined the Board’s intent, the question remains whether it was an error of law to find the NSLC discriminated against Ms. Kelly.  This attracts a reasonableness standard of review.

[91]        The NSLC submits the Board fell into error by finding liability despite Ms. Kelly not being offended by the term, nor complaining about it.  The NSLC asserts such an outcome is unreasonable as it is inconsistent with this Court’s directive in Play It Again Sports Ltd..  Further, the Board having found Ms. Kelly suffered “no specific burden” due to the use of the “Pregnant Pearl in Pictou” appellation, it is argued a finding of discrimination cannot be sustained.

[92]        I agree with the Commission that the Board properly distinguished Play It Again Sports.  In its factum, it explains:

23.  Contrary to what is suggested by the Corporation in its factum, the BOI correctly interpreted the decision of this Court in Moore v. Play It Again Sports Ltd., 2004 NSCA 132.

24.  The BOI distinguished that case on the basis that the Board of Inquiry in Play It Again Sports made a finding that the respondents called many individuals, including non-aboriginal individuals, as well as Ms. Moore, by the name “kemosabe” which they testified they took to mean “friend”.

25.  The BOI also noted that the Board of Inquiry in Play It Again Sports made a finding that in fact Ms. Moore was not offended by the term “kemosabe”.

[93]        Here, the Board’s factual findings that Ms. Kelly disliked the term “Pregnant Pearl in Pictou”, and that her direct supervisor, Mr. Whittemore was aware of its use, are not reviewable.  In Play It Again Sports, the term used was not clearly offensive on an objective basis.  Here, the Board found that “Pregnant Pearl in Pictou” had a negative connotation in that it suggested Ms. Kelly as the only female Manager 4 in the region, did not obtain that position or other promotions on merit.  That conclusion, in my view is reasonable, and serves to distinguish this case from the circumstances in Play It Again Sports.

[94]        What about the NSLC’s submission that without a demonstrable burden, no finding of discrimination can flow? Again, this Court is left to resolve a dispute about what the Board intended given how it chose to convey its conclusion.  The NSLC says the Board concluded there was no burden arising due to the use of the appellation.  Ms. Kelly and the Commission argue, despite the Board saying there was “no specific burden” imposed upon Ms. Kelly, that it clearly found there was a general burden.

[95]        Although I disagree with the respondents that the Board’s intent was “clear”, I am satisfied that in noting there was no “specific burden”, the Board did not intend to suggest that there was no burden on Ms. Kelly.  Such a finding would be inconsistent with the Board’s finding that:

Further, the linkage of career advancement and pregnancy has a negative connotation, the implication being that Ms. Kelly got her promotions because she was pregnant, and not because of on her abilities.

[96]        Section 4 of the Act requires the imposition of “burdens, obligations or disadvantages” not imposed on others in order to give rise to a finding of discrimination.  The Board’s reasons are adequate, when reviewed broadly in light of the record, to understand not only that Ms. Kelly did suffer a burden or disadvantage not imposed on her male counterparts, but also what that disadvantage was.  By the repeated use of “Pregnant Pearl in Pictou”, Ms. Kelly was subjected to a work environment where her achievements were negatively linked to her pregnancies, as opposed to her genuine abilities.  That conduct, participated in by management and by other staff with management’s knowledge, is objectively offensive, and did not require Ms. Kelly to indicate her objection to it.  The Board’s finding of discrimination is reasonable and I would dismiss this ground of appeal.

G.      Did the Board err in law by treating statute barred conduct that was not discriminatory under the Act as evidence of ongoing misconduct by the Corporation?

[97]        Ms. Kelly complained that she was prohibited from working at a wine fair in November 2004 because she was pregnant, although she did end up working at the event in a different capacity.  Before the Board the NSLC challenged the veracity of Ms. Kelly’s account, but also argued that the complaint would be statute barred in any event.  It submitted that s. 29(2) of the Act prohibited a finding of discrimination in the circumstances.   That section provides:

29(2)  Any complaint must be made within twelve months of the date of the action or conduct complained of, or within twelve months of the last instance of the action or conduct if the action or conduct is ongoing.

[98]        The NSLC submits that the Board appeared to accept its argument with respect to the wine incident being statute barred, but then proceeded in its reasons to throw the practical effect of that finding in doubt.  The Board’s reasoning and conclusion help underscore the source of the concern. 

[99]        The Board reached the following factual conclusions:

I find that Ms. Kelly raised the issue of not working at the wine fair with Mr. McMillan directly, and with Mr. MacDonald.  I find as well, that she established a prima facie case that she was discriminated against by the Corporation because she was not originally slated to work the wine fair because she was pregnant.  The circumstance, however, was corrected and there is no evidence of any negative impact upon Ms. Kelly for the initial failure to schedule her to work the wine fair.  It is circumstantial evidence of adverse treatment that has not been rebutted by the Corporation.  It was clearly Ms. Kelly’s decision, in conjunction with her doctor, to determine whether or not she could or could not work, because there was lifting involved, at the wine fair.  The situation resolved itself and Ms. Kelly did work in the wine fair in a different capacity so there is no evidence of any lasting adverse treatment in this particular incident.

[100]   After reviewing s. 29(2), and three case authorities, the Board concluded:

I therefore find that the wine fair incident is statute barred and therefore, cannot be relied upon to prove a specific violation of the Act, nor is it evidence of an ongoing complaint.  It is, however, evidence to prove ongoing historical conduct by the Corporation. (Emphasis added)

[101]   A similar, but not quite identical statement is found in the Board’s “Summary of Findings and Conclusions”:

I find the following:

1.That the wine fair incident is not a standalone act of discrimination and is statute barred, but as previously stated, is evidence to prove ongoing misconduct by the Corporation. (Emphasis added)

[102]   The NSLC submits that in making the above statements, the Board unreasonably interpreted s. 29(2).  It explains in its factum:

111.  The Board erred in law by misinterpreting Section 29(2) of the Human Rights Act, R.S.N.S. 1989, c. 214 by finding that the “wine fair incident” was statute barred and was not evidence of an ongoing complaint, but then finding that the “wine fair incident” was evidence to prove “ongoing historical conduct” and “ongoing misconduct” by the Corporation.

112.  The Board properly found that the “wine fair incident” that occurred in November, 2004 was statute barred.  The Board also properly found that the “wine fair incident” was not discriminatory under the [Human Rights] Act as there was no evidence of any negative impact on Ms. Kelly.  Despite these findings, however, the Board used the wine fair incident to colour the actions of the Corporation, presumably to ground the finding of discrimination on the basis of gender for the 2007 performance appraisal.  This can be the only conclusion as the Board did not find any other instances in which the Corporation discriminated against Ms. Kelly on the basis of gender.

[103]   The Board’s path of reasoning is again criticized by the NSLC, submitting the reasons are “internally inconsistent”.  It argues:

115.  While the Board could have determined that the “wine fair incident” was indeed evidence of an ongoing complaint, it unequivocally concluded the opposite, when it stated that the incident is not “evidence of an ongoing complaint”.  Having made this conclusion, with which the Corporation agrees, the Board then proceeds to declare the “wine fair incident” as proving “ongoing historical conduct by the Corporation” was well as proving “ongoing misconduct by the Corporation”.  (Emphasis in original)

[104]   In response, Ms. Kelly submits that there was nothing inappropriate about the Board concluding the evidence surrounding the “wine fair” incident could be considered as evidence of the “big picture of whether Ms. Kelly worked in a sexist environment”.  The Commission takes a different approach, suggesting that the Board’s comments are obiter, and as such ought to be of little concern to the NSLC and this Court. 

[105]   With respect, I disagree with the Commission.  The fact that it is entirely unclear what the Board was endorsing as the possible evidentiary use of the non-discriminatory conduct is concerning.  Was the Board suggesting it can be referenced for mere historical context?  Was the Board suggesting it can be referenced to prove subsequent non-barred conduct is discriminatory?  Was the Board suggesting that it can be referenced and utilized in some fashion in imposing a remedy for any conduct that is found to be discriminatory?  The NSLC asserts that if the Board intended to propose that statute-barred conduct can be used as supportive evidence of later acts of discrimination, such is clearly contrary to s. 29(2) of the Act, and the case authorities.  A review of the case authorities seemingly relied upon by the Board only serves to deepen the mystery of its intention.

[106]   The Board quotes from O’Hara v. British Columbia (Human Rights Commission), 2002 BCSC 559 in relation to what constitutes continuing conduct for the purpose of s. 29(2).  That decision adopts the earlier reasoning of the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), [1983] M.J. No. 223, which described a “continuing violation” under that province’s legislation as follows:

19     What emerges from all of the decisions is that a continuing violation (or a continuing grievance, discrimination, offence or cause of action) is one that arises from a succession (or repetition) of separate violations (or separate acts, omissions, discriminations, offences or actions) of the same character (or of the same kind). That reasoning, in my view, should apply to the notion of the "continuing contravention" under the Act. To be a "continuing contravention", there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination which could be considered as separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects or consequences.

[107]   I am satisfied that neither case supports the proposition that conduct found to not be a stand alone act of discrimination and statute-barred “is evidence to prove ongoing misconduct”.  The Board then cites the recent decision of this Court in Izaak Walton Killam Centre v. Nova Scotia (Human Rights Commission), supra.  Clearly that decision does not support the proposition that s. 29(2) can, or should, be interpreted as permitting statute barred conduct to be used as “evidence to prove ongoing misconduct”.

[108]   The Board also relied upon a decision of Moir, J. in ExxonMobil Canada Ltd. v. Carpenter, 2011 NSSC 445, and wrote:

. . .Justice Moir stated at paragraphs 58-69 of the decision:

The statutory limitation prevents Ms. Carpenter from putting forward a distinct incident from her distant past as a violation of the Human Rights Act . . .

Evidence of older conduct would only be admissible to prove ongoing misconduct, not a specific violation.

 

[109]   The Board’s quote is incomplete, and if intended to be support for the proposition that statute-barred conduct can be used as evidence for a later finding of discrimination, it is a gross misinterpretation of Justice Moir’s decision.  Some context is helpful.  ExxonMobile involved a judicial review of a decision made under s. 29(3) of the Act permitting Ms. Carpenter to file a complaint outside of the normal 12 month time frame.  That section provides:

29(3)  Notwithstanding subsection (2), the Director may, in exceptional circumstances, grant a complainant an additional period of not more than twelve months to make a complaint if to do so would be in the public interest and, having regard to any prejudice to the complainant or the respondent, would be equitable.

[110]   On review to the court, the applicant submitted the Director’s decision to extend the timeframe was unreasonable for a number of reasons, including that the alleged misconduct was “too old” to give rise to a finding of discrimination.  Justice Moir did not find that argument persuasive as a means of setting aside the Director’s decision to extend the time for filing, but it did give rise to the quote utilized by the Board in its decision.  Justice Moir wrote:

Complaints Too Old

[58]  The statutory limitation prevents Ms. Carpenter from putting forward a distinct incident from her distant past as a violation of the Human Rights Act.  The evidence about such an incident may, however, be relevant to an allegation of ongoing misconduct.

[59]  Subsection 29(2) reads:

Any complaint must be made within twelve months of the date of the action or conduct complained of or within twelve months of the last instance of the action or conduct if the action or conduct is ongoing.

Evidence of older conduct would only be admissible to prove ongoing misconduct, not a specific violation. (Emphasis added)

[111]   The bolded sentence above, and the entire reference to s. 29(2), are omitted in the Board’s reasons.  In my view, when Justice Moir concluded that “evidence of older conduct would only be admissible to prove ongoing misconduct”, the ongoing misconduct he is referencing is the ongoing conduct contemplated in s. 29(2), not some other unspecified kind of “misconduct”.  It cannot reasonably be entertained that ExxonMobile stands for either of the following:

I therefore find that the wine fair incident is statute barred and therefore, cannot be relied upon to prove a specific violation of the Act, nor is it evidence of an ongoing complaint.  It is, however, evidence to prove ongoing historical conduct by the Corporation.

Or:

That the wine fair incident is not a standalone act of discrimination and is statute barred, but as previously stated, is evidence to prove ongoing misconduct by the Corporation.

[112]   Not only is ExxonMobile not supportive of what appears on the face of the decision, the NSLC argues that it supports an opposite conclusion – that where the Board concluded the wine fair incident was not indicative of ongoing conduct, such evidence is not admissible for any other findings of “misconduct” under the legislation.

[113]   The 2004 wine fair incident was clearly outside the 12 month limitation period prescribed in s. 29(2) of the Act.  If found to be discriminatory, the NSLC could only be held responsible for that conduct if it was also found to be “an action or conduct” which was ongoing.

[114]   As noted earlier, what constitutes “ongoing” or “continuous” conduct has been considered in the human rights context, particularly in relation to statutory limitation periods.  In order to fall within the exception to an otherwise defined limitation period, the older behaviour must be of the same character as that which has been the subject of more recent complaint. ( See ¶ 106)   By way of example, a dated complaint of racial discrimination cannot be considered if the current complaint is one founded on mental disability.  However, a dated complaint of gender inequality may circumvent the 12 month limitation period, if there is a current complaint of discrimination on the basis of sex.

[115]   Here the Board definitively concluded the wine fair incident was not “evidence of an ongoing complaint”.  But can it be evidence of something else?  It is puzzling what the Board meant by “historical conduct” or “ongoing misconduct”.  If the Board was suggesting that statute-barred conduct could be used as evidentiary support for more recent allegations of discrimination, such is problematic.

[116]   Section 29(2) is clear.  If a complainant alleges discriminatory conduct which does not fall within the 12 months preceding a complaint, it can only ground liability under the legislation if it is found to be “ongoing”.  There is no other form of misconduct contemplated in the Act, other than a finding of discrimination as defined therein.  In my view, should a board make a finding of current discrimination based on statute-barred conduct, that would constitute an improper end-run around the limitation period specified in s. 29(2).

[117]   Presuming the Board did what it said it could – rely on the wine fair incident as evidence of ongoing “misconduct” – what is the practical result on this appeal?  Despite the spilling of significant ink, I am satisfied there is no impact.  I have already concluded that the Board’s finding of discrimination on the basis of mental disability arising from the Christmas wine letter should be set aside.  As such, there is no risk of a tainted finding of discrimination on that basis.

[118]   That leaves for consideration the Board’s two findings of gender discrimination – that based on the comparison of work evaluations and the use of the “Pregnant Pearl in Pictou” appellation.  In light of these two findings of discrimination, it is truly curious that the wine fair incident in 2004 was not found to be ongoing conduct within the meaning of s. 29(2).  However, the Board’s conclusion in that regard has not been challenged. 

[119]   What is important for the purpose of this analysis, is that the record clearly supports that the circumstances surrounding the evaluations and appellation were sufficient to establish discriminatory conduct on their own.  Based on the evidentiary record here, I am not satisfied that the Board’s potential misguided consideration of the 2004 wine incident warrants interference with the two findings of gender discrimination.

[120]   Notwithstanding the able arguments of the NSLC, and the concerns with respect to the Board’s reasoning, I would dismiss this ground of appeal.

H.      Did the Board err in law by retaining jurisdiction to determine, at some future date, based on as yet unknown facts, whether the NSLC had met its obligation to accommodate Ms. Kelly?

[121]   Ms. Kelly went on sick leave on May 28, 2008.  Although she has not returned to her employment, the evidence at the hearing established that she is still considered an employee of the NSLC.  In August of 2009, Ms. Kelly, a union representative and the NSLC participated in a voluntary two-day mediation, the focus of which was to attempt to set a framework for her return to work.  Through that process a “Return to Work Protocol” was negotiated.  Although indicating her agreement in principle, Ms. Kelly reserved the right to have her legal counsel and treatment providers review the protocol prior to giving final confirmation of her agreement.

[122]   That confirmation did not materialize.  The record shows that in the months to follow there was significant back and forth between the parties discussing Ms. Kelly’s potential return to work.  The NSLC sought confirmation that she was indeed fit to return to work.  Ms. Kelly also raised concern with one particular aspect of the protocol—that she would after 12 months, return to the sole supervision of Mr. Whittemore.  Discussions between the parties as to an implementation of this, or any other arrangement, ceased in November 2009.  On November 12, 2009, counsel for Ms. Kelly’s union wrote to counsel for the NSLC and advised:

This is to confirm I have now been advised that Ms. Kelly’s medical practitioners have stated that Ms. Kelly is totally disabled from work and unable to return at the present time.

As a result of the above, it does not appear that we are in a position to confirm a Return to Work Protocol.

[123]   Having reviewed the record, there is nothing to suggest that Ms. Kelly’s status of being indefinitely disabled changed prior to 2013.  Although it is not clear when it was brought to the attention of the NSLC, Dr. Tragakis provided a report dated April 25, 2013 to Ms. Kelly’s legal counsel.  While it does not address the “Return to Work Protocol” drafted four years earlier, it did suggest a potential ability to return to work:

. . . To my knowledge, she has not had issues at work before this matter and has had good performance reviews.  The severity of mental health injuries caused by discrimination in the work place was high enough to put her off work and to trigger her anxiety disorder.  These limitations exist now only in so far as her issues have not been addressed or resolved.  I believe she could return to work if they were resolved and that she would be a good employee.  It would not take long for her to return to work given a resolution to her complaints.  So, the prognosis for recovery is high.

[124]     Before the Board, Ms. Kelly had argued that the NSLC had failed to accommodate her mental disability.  Her argument was focused on a provision in the 2009 protocol which, if implemented, contemplated a return to Mr. Whittemore’s sole supervision within a year of her return to work.   At the hearing Dr. Tragakis testified that Ms. Kelly would be capable of a return to work if she were no longer supervised by Mr. Whittemore.  The Board did not accept Dr. Tragakis’ evidence in this regard, having found he had insufficient knowledge of the workplace to express that opinion.  It wrote:

. . .Based on the short comings in the information that he received about Ms. Kelly’s workplace I don’t believe that Dr. Tragakis is in a position to express anymore than concern of what the outcome might be if Ms. Kelly went back to work at the end of the Back to Work Protocol under the supervision of Mr. Whittemore. (Emphasis added)

[125]   Again, there is disagreement as to the Board’s intent and the effect of its conclusions regarding the duty to accommodate and undue hardship.  It wrote:

I find that the Back-to-Work Protocol is a significant accommodation of Ms. Kelly’s ongoing disability being depression and situational anxiety, brought on by her contact with Mr. Whittemore.  Further, it was agreed that the offending letters  . . . were removed from her personnel file, and potential discipline was waived any actions of Ms. Kelly prior to the execution of the Protocol, including the June 2, 2008, October 20, 2008, and December 17, 2008 correspondence.  The Protocol was a significant concession in relation to Ms. Kelly’s alleged performance issues and her behaviours post sick leave.  Her personnel file, from a discipline perspective, would be wiped clean.

The issue for Ms. Kelly was whether or not it was reasonable for her, at the end of the year long Back-to-Work Protocol to return to the supervision of Mr. Whittemore.

And further:

I accept the argument of Counsel for the Corporation that the Corporation has made concerted efforts to accommodate Ms. Kelly, as is evidenced in the Back-to-Work Protocol . . .If and when Ms. Kelly is able to return to work, the Back to Work Protocol is an appropriate accommodation. . . (Emphasis added)

[126]   Later in its reasons, the Board noted:

I find that the Back to Work Protocol is a significant attempt to accommodate Ms. Kelly which was made based on the presumption that she (a) would not be receiving long term disability benefits and (b) was available and ready to return back to work.  There is nothing in the evidence or in the case law to suggest that without having given the Back to Work Protocol a try that Ms. Kelly should never have to report back to Mr. Whittemore as her Regional Manager. (Emphasis added)

[127]   In the Board’s “Summary of Findings and Conclusions”, it addressed the accommodation issue as follows:

5.  I find that the Back-to-Work Protocol complies with the legal requirements of the duty to accommodate, if and when, Ms. Kelly is deemed able to return to work.  I find that, on the face of it, a prohibition from never having to never report to Mr. Whittemore as Ms. Kelly’s regional manager is an undue hardship, however before a final determination is made, the protocol should be implemented and evidence of how the protocol has been implemented and how Ms. Kelly and Mr. Whittemore have done should be lead [sic] and adjudicated on before a final determination is made on the question of undue hardship. (Emphasis added)

[128]   At this juncture, I note that the above passages, particularly the bolded aspects thereof, are indicative that the Board clearly was of the view that Ms. Kelly remained, at the time of the hearing, unable to return to work.  This is also reflected elsewhere in the reasons:

I also find that there is evidence of a disability (as of May 28, 2008), which is an enumerated ground under the Human Rights Act and could potentially trigger a duty to accommodate when Ms. Kelly is able to return to work. … (Emphasis added)

[129]   I am satisfied that the Board concluded that Ms. Kelly remained unable to return to work, a factual finding which was not, and could not, be challenged before this Court.  With respect, this is a critical determination, the import of which the Board may not have fully appreciated.

[130]   In the quote immediately above, the Board appears to state that a duty to accommodate may be triggered in future should Ms. Kelly find herself able to return to work.  In the same vein, the Board also noted and seemingly accepted case law indicative of the principle that an employer’s duty to accommodate is suspended until an employee is able to return to work.  The Board further referenced the decision in Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, which supports the proposition that an employer will have a defence to an allegation of a failure to accommodate where an employee is indefinitely unable to return to employment.

[131]   The above propositions make sense.  If an employee is unfit to return to work, how can that employee, the employer, or a board know what is required in terms of accommodation measures?  The content of the duty to accommodate, and whether proposed measures constitute undue hardship to an employer, can best be assessed when the employee’s current needs and limitations are ascertainable.

[132]   Again, it is not clear what the Board intended.  When it stated that her mental disability “could potentially trigger a duty to accommodate when Ms. Kelly is able to return to work”, it seems that the Board recognized that the duty was suspended, and had to be assessed at the time of a future return to employment.  Yet, the Board then proceeded to seemingly state that the protocol drafted in 2009 would meet the duty to accommodate should Ms. Kelly be able to return to work at some yet unknown date. Given that she has remained unable to return to her employment for 8 years, it is entirely uncertain when that may be.

[133]   If the Board was intending to “pre-approve” the 2009 protocol as being sufficient to meet the NSLC’s duty to accommodate at some point in future, that is clearly an error of law.  The duty to accommodate remains suspended until such time as Ms. Kelly is able to return to work.  When assessed, the content of the duty to accommodate must be reflective of the returning employee’s current needs and restrictions, not those which existed years in the past.  Similarly, what may constitute an undue hardship to an employer cannot be determined on circumstances which may have existed in the distant past, but rather, the circumstances when a return is imminent.

[134]   The Board recognized the peril in pre-judging whether a return to Mr. Whittemore’s supervision was possible, and in particular whether Ms. Kelly’s desire not to do so would constitute an undue hardship to the NSLC.  As such, the Board reserved the right for it to determine that issue at some uncertain point in future, should Ms. Kelly ever be able to return to work, and then, only once the 2009 protocol was implemented.

[135]   Both the NSLC and Commission submit that the Board erred in law by retaining jurisdiction in this matter, it being contrary to section 34 of the Act.  The relevant subsections provide:

34(7)  A board of inquiry has jurisdiction and authority to determine any question of fact or law or both required to be decided in reaching a decision as to whether or not any person has contravened this Act or for the making of any order pursuant to such decision.

(8)  A board of inquiry may order any party who has contravened this Act to do any act or thing that constitutes full compliance with the Act and to rectify any injury caused to any person or class of persons or to make compensation therefor and, where authorized by and to the extent permitted by the regulations, may make any order against that party, unless that party is the complainant, as to costs as it considers appropriate in the circumstances.

[136]   The Board’s decision to retain jurisdiction is not a true question of jurisdiction, but falls squarely within the interpretation of its home statute.  As such, a reasonableness standard applies.  In my view, the Board’s decision to maintain jurisdiction to hear some possible, future question of undue hardship, or accommodation, failed to recognize that it has jurisdiction to only determine current contraventions of the Act.  Although a board may retain the ability to oversee implementation of a remedy arising from a complaint, the complaint must be one which has occurred, not one that might occur in future.  As such, the Board’s decision to retain jurisdiction was unreasonable.

[137]   In the event Ms. Kelly can at some point return to work, the NSLC’s duty to accommodate will arise.  The content of that duty will be assessed at that time, and may be very different than the 2009 protocol.  If there is a dispute about the appropriateness of the accommodation, Ms. Kelly can make a new complaint.  This Board has no jurisdiction to be involved in that process, should it ever come to fruition.

I.       The Cross-appeal

[138]   In her cross-appeal, Ms. Kelly attacks the Board’s findings, as she interpreted them, with respect to the duty to accommodate.  Given the above conclusions regarding the effect of the Board’s decision, these arguments need not be addressed.

Conclusion

[139]   I am compelled to return to the Board’s reasons.  Although lengthy, they were anything but clear.  After participating in a long process, a complainant should not be at risk of having a finding of discrimination set aside because of a board’s imprecise reasoning.  Similarly, a respondent who has been found to have discriminated, is entitled to know what aspects of its behaviour attracted censure, so that those conclusions may be addressed remedially or meaningfully challenged on appeal, if so advised.  Neither parties, this Court, nor those interested in a human rights decision should have to struggle to ascertain a board’s intention.

[140]   I would allow the appeal in part.  For the reasons outlined above, I would set aside the Board’s finding of discrimination on the basis of mental disability and its retention of jurisdiction to determine the issues of accommodation and undue hardship in future.  Given the uncertainty of what the Board intended with respect to the back to work protocol and the duty to accommodate, its statements in this regard are obiter, and have no binding effect on the parties.  Should Ms. Kelly ever be in a position to return to work, any accommodation required can be assessed at that point, and in the event of a dispute, form the basis of a new complaint under the Act.

[141]   In all other respects, I would dismiss the appeal.

 

                                                                             Bourgeois, J.A.

Concurred in:

Oland, J.A.

Scanlan, J.A.