Supreme Court

Administrative Law

Courts should exercise great restraint in intervening at early stage

Complainant, francophone Acadian parent, filed complaints with Nova Scotia Human Rights Commission alleging that funding arrangements for French-first-language schools in Halifax discriminated on basis of Acadian ethnic origin. Upon amalgamation of municipalities and affected school boards, Halifax imposed tax in order to satisfy statutory requirement that it maintain supplementary funding to schools that received such funding prior to amalgamation. Halifax schools under newly created Conseil scolaire acadien provincial, a province-wide public school board that administered French-first-language schools, did not receive supplementary funding. Commission requested that board of inquiry be appointed. When other parents brought Canadian Charter of Rights and Freedoms challenge, statutory amendment provided for supplementary funding for Conseil schools. Charter challenge dismissed on consent. Halifax sought judicial review of commission’s decision to refer complaint to board of inquiry. Judge of Nova Scotia Supreme Court set referral decision aside but Nova Scotia Court of Appeal reversed that decision. Appeal to Supreme Court of Canada dismissed. Commission’s decision not determination of jurisdiction but rather discretionary decision that inquiry warranted, decision that should be reviewed for reasonableness. Commission has broad discretion whether to appoint board of inquiry; it must simply be “satisfied” having regard to circumstances that inquiry warranted. In deciding to refer complaint to board of inquiry, commission’s function one of screening and administration, not adjudication. Decision in Bell v. Ontario Human Rights Commission (1971), 18 D.L.R. (3d) 1 (S.C.C.), should no longer be followed; courts should exercise great restraint in intervening at early stage. Reviewing court’s approach must reflect appropriate level of deference both to substance of tribunal’s decision and ongoing process. Standard of reasonableness reflects appropriate deference and recognizes that administrative decision makers have margin of appreciation within range of acceptable and rational solutions. Nature of commission’s role in deciding to move to board of inquiry and place of that decision in commission’s processes important aspects of context that must be taken into account in applying reasonableness standard. Commission’s referral decision upheld. There was reasonable basis, provided primarily by novelty and complexity of complaints, for commission to be satisfied that inquiry warranted in circumstances.

Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission)

(Mar. 16, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ., File No. 33651) Decision at 185 A.C.W.S. (3d) 441 was affirmed. 212 A.C.W.S. (3d) 606 (38 pp.).

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