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Who guards the guardians? Nova Scotia Human Rights Commission makes costly procedural mistakes

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“In my view, it would be contrary to the public interest for the Commission to avoid liability for costs in situations where it has mishandled a complaint to the degree seen in this case.”

In Tessier v. Nova Scotia (Human Rights Commission) et al 2014 NSSC 65 (CanLII), the Nova Scotia Supreme Court (NSSC) ruled recently that the Nova Scotia Human Rights Commission (NSHRC) was required to reinvestigate a gender and disability discrimination complaint that it had previously dismissed because of its lack of procedural fairness in the initial investigation. The NSSC then took the unusual step of awarding costs against the Commission for its mishandling of the matter (Tessier v. Nova Scotia (Human Rights Commission) et al 2014 NSSC 189 (CanLII)).

Liane Tessier began her NSHRC complaint of gender and disability discrimination against her fire fighter superiors and the Halifax Regional Municipality (HRM) back in 2007. The investigation process which spanned more than 4 years and involved numerous human rights officers, culminated in a report issued on December 29, 2011 recommending dismissal of the complaint on the basis of insufficient evidence. Tessier filed a response to the report and a complaint respecting the quality of the investigation. On February 15, 2012, the Commissioners met to consider Tessier’s complaint along with the NSHRC file and ultimately determined that there was insufficient evidence to support the allegations and dismissed the complaint.

In an application for judicial review of the dismissal of her complaint, Liane Tessier argued that the Commission failed to conduct its investigation process fairly. She alleged that the failure included, among other things, the fact that it did not interview two of the named respondents in the complaint.

The Court agreed and stated, “In this case, Chief McLean and DC Burgess were both central to the allegations of discrimination. A thorough investigation required more than merely accepting the contents of the HRM response at face value. A reasonable investigator would have recognized that additional crucial information could be gathered by conducting thorough and critically-minded interviews with Chief McLean and DC Burgess. Given the central importance of their version of events to the outcome of the investigation such interviews were required for a thorough investigation.”

The Justice was aided in arriving at this conclusion by the contents of the NSHRC file. The file revealed that the human rights officers involved in the investigation advised the complainant that they would be speaking with the respondents. In fact, two of the five officers told the complainant that they needed to or had set up the interviews (and, in one case even rescheduling cancelled interviews), and offered no explanation as to why those interviews never took place.

The failure to interview these key witnesses meant that the Commission had breached the requirement for procedural fairness. Justice LeBlanc stated, “This breach alone is sufficient to invalidate the investigation and render the Commission unable to make a proper screening determination on this case based on the sufficiency of the record before them. “

For experienced workplace investigators, this decision ordering a new investigation of the complaint is not shocking given the procedural issues itemized by the Court. What is more surprising is the significant award of costs to Ms. Tessier on her Application.

The NSSC stated that Ms. Tessier was entitled to costs that exceeded the Tariff and the Tariff multiplier for similar court applications. In so doing, the Justice gave as part of his reasoning, “[w]hen the Commission fails to exercise due diligence in the investigation process the consequences for a complainant can be profound.”

In awarding Ms. Tessier a lump sum of $10,000 plus disbursements, the Court acknowledged that circumstances such as this are exceptional. Usually an administrative decision maker, like the Commission, would be immune from having to pay costs to an Applicant. However, the Commission’s seriously flawed process, coupled with the resulting difficult circumstances in which Ms. Tessier would now find herself, some 7 years after the initial complaint was filed, justified her receiving the unusually high costs award.

Every workplace investigation is important. However, for entities like the Human Rights Commission, which exist with the mandate of gate keeper of human rights legislation and protections, if it is found at the end of the day that the investigation process was unfair or lacking in neutrality, the outcome will not even matter. The investigation will be deemed invalid and the process may begin anew.

Kenda Murphy