ADMINISTRATIVE LAW REPORTS Fifth Series/Cinqui`Eme S´Erie Recueil De Jurisprudence En Droit Administratif

ADMINISTRATIVE LAW REPORTS Fifth Series/Cinqui`eme s´erie Recueil de jurisprudence en droit administratif

VOLUME 91 (Cited 91 Admin. L.R. (5th))

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[Indexed as: Drabinsky v. Canada (Attorney General)] Garth H. Drabinsky, Appellant and The Advisory Council of the Order of Canada and The Attorney General of Canada, Respondents Federal Court of Appeal Docket: A-82-14 2015 FCA 5, 2015 CAF 5 Eleanor R. Dawson, Wyman W. Webb, David G. Near JJ.A. Heard: December 11, 2014 Judgment: January 9, 2015 Administrative law –––– Requirements of natural justice — Right to hearing — Duty of fairness –––– Applicant was awarded Order of Canada for contribution to entertainment industry — Applicant was convicted of fraud — While serving sentence, applicant was advised that his appointment to Order might be rescinded and given deadline for any submissions — Advisory Council extended deadline for submissions by one month — Applicant made extensive submissions, claiming right to add substantially to submissions upon his release — Receipt of materials was acknowledged without reference to claimed right — Advisory Council’s recommendation to Governor in Council that appointment be rescinded was accepted — Applicant’s application for judicial review was dismissed — Applicant appealed — Appeal dismissed — Assuming without deciding that decision was justiciable and that doctrine of legitimate expectations applied, there was no basis for finding that process failed to meet applicant’s legitimate expectations — Applicant could not have any legitimate expectation that he would receive indefinite extension — Nothing in applicable policy created legitimate expectation that Advisory Council would give detailed reasons and fact-finding to support its recommendation — Even if applicant had legitimate expectation that he would receive immediate notice of Governor in Council’s decision, any delay was of no legal consequence as application for judicial review could be commenced on timely basis — Process leading to re- 2 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

scission was consistent with policy, providing applicant extended time to make submissions which were considered in making recommendation. Cases considered by David G. Near J.A.: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 360 D.L.R. (4th) 411, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 2013 SCC 36, 52 Admin. L.R. (5th) 183, 16 Imm. L.R. (4th) 173, [2013] 2 S.C.R. 559, 446 N.R. 65, [2013] S.C.J. No. 36 (S.C.C.) — referred to Black v. Advisory Council for the Order of Canada (2012), 268 C.R.R. (2d) 255, 2012 CarswellNat 3992, 2012 FC 1234, 46 Admin. L.R. (5th) 1, 420 F.T.R. 79 (Eng.), [2012] F.C.J. No. 1309 (F.C.) — referred to Black v. Canada (Prime Minister) (2001), 2001 CarswellOnt 1672, 54 O.R. (3d) 215, 199 D.L.R. (4th) 228, (sub nom. Black v. Chr´etien) 147 O.A.C. 141, [2001] O.T.C. 251, [2001] O.J. No. 1853 (Ont. C.A.) — referred to Mavi v. Canada (Attorney General) (2011), 2011 CarswellOnt 4429, 2011 Cars- wellOnt 4430, 2011 SCC 30, 332 D.L.R. (4th) 577, 417 N.R. 126, 97 Imm. L.R. (3d) 173, (sub nom. Canada (Attorney General) v. Mavi) [2011] 2 S.C.R. 504, 108 O.R. (3d) 240 (note), 19 Admin. L.R. (5th) 1, 279 O.A.C. 63, 108 O.R. (3d) 240, [2011] S.C.J. No. 30 (S.C.C.) — referred to R. v. Drabinsky (2011), 2011 ONCA 582, 2011 CarswellOnt 9323, 107 O.R. (3d) 595, 274 C.C.C. (3d) 289, 284 O.A.C. 222, [2011] O.J. No. 4022 (Ont. C.A.) — referred to

APPEAL by applicant from judgment reported at Drabinsky v. Canada (Attorney General) (2014), 2014 FC 21, 2014 CarswellNat 31, 2014 CF 21, 2014 CarswellNat 353, 445 F.T.R. 240 (Eng.), 80 Admin. L.R. (5th) 1 (F.C.), dismissing application for judicial review from decision rescinding applicant’s appointment to Order of Canada.

John P. Koch, Allison Thornton, for Appellant Christine Mohr, Andrea Bourke, for Respondents

David G. Near J.A.: I. Introduction 1 Garth H. Drabinsky appeals from the January 8, 2014 decision of the Federal Court (2014 FC 21 (F.C.)), in which the Federal Court judge dismissed his application for judicial review. In the Federal Court Mr. Drabinsky challenged the following “decisions” in the process that led to the termination of his appointment as a member of the Order of Canada: 1. The decision of the Advisory Council of the Order of Canada (the “Advisory Council”) to require that the applicant, Mr. Drabinsky, Drabinsky v. Canada (Attorney General) David G. Near J.A. 3

submit by no later than August 7, 2012 all materials for review by the Advisory Council in its consideration as to whether to recommend that Mr. Drabinsky’s appointment as an Officer of the Order of Canada be terminated; 2. The decision of the Advisory Council to disregard or to reject Mr. Drabinsky’s request for an extension of the August 7, 2012 deadline so that he could access persons, information, and materials which he was unable to obtain before August 7, 2012 or while he remained in custody at Beaver Creek Institution; 3. The decision of the Advisory Council to recommend to the Gover- nor General of Canada that he issue an Ordinance terminating Mr. Drabinsky’s appointment as an Officer of the Order of Canada, as set out in a letter dated January 17, 2013 and communicated to Mr. Drabinsky through his lawyers on February 1, 2013; and 4. The decision of the Governor General to issue the Ordinance on the basis of the recommendation described in paragraph 3, above. 2 For the reasons set out below, I would dismiss the appeal.

II. Facts and Judicial History 3 The facts of this case were aptly summarized by the Federal Court judge: [1] Mr Garth H Drabinsky is a well-known impresario and pro- ducer. In 1995, the Governor General awarded Mr Drabinsky the Order of Canada based on his contribution to the entertainment industry. [2] In 2009, Mr Drabinsky was convicted on two counts of fraud in respect of the management of his company, Livent. The Ontario Superior Court of Justice sentenced him to 7 years of imprisonment. On appeal, the Ontario Court of Appeal upheld the convictions but reduced the sentence to 5 years: R. v. Drabinsky, 2011 ONCA 582 (Ont. C.A.). [3] In June 2012, while Mr Drabinsky was still in custody, the Secretary General to the Governor General wrote to inform him that the Advisory Council of the Order of Canada planned to consider whether his appointment to the Order should be terminated. The Secretary General told Mr Drabin- sky that he could make written submissions to the Council and set a deadline of July 7, 2012. 4 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

[4] Counsel for Mr Drabinsky replied to the Secretary General’s letter and requested an extension of time to make submissions. In particular, counsel requested an extension until Janu- ary 2013 when Mr Drabinsky expected to be released on day parole, and would therefore be in a better position to assem- ble the materials that he wished to provide to the Council. [5] The Secretary General replied to counsel’s letter and stated that the Council had agreed to give Mr Drabinsky a one- month extension until August 7, 2012. [6] Mr Drabinsky made extensive representations to the Council on August 3, 2012 - 17 pages of written submissions and vo- luminous supporting documentation, including a copy of his autobiography, entitled “Closer to the Sun”. However, he also stated that he reserved the right to add substantially to those submissions following his release. The Secretary General acknowledged receipt of Mr Drabinsky’s materials, but said nothing about allowing further submissions. [7] The Council met in November 2012 and decided to recommend to the Governor General that Mr Drabinsky’s appointment be rescinded. The Governor General accepted the Coun- cil’s recommendation and signed an Ordinance to that effect. The Secretary General informed Mr Drabinsky of the Gover- nor General’s decision, which was later published in the Can- ada Gazette. 4 In dismissing the application for judicial review the Judge found that the decisions of the Advisory Council and the Governor General could not be reviewed for their substance because “a decision to grant, or not to confer, or even to withdraw an honorary appointment does not affect a person’s rights, and cannot be challenged in court” (at para. 18). This flows from the fact that no Canadian citizen can claim a “right” to an honour (citing Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215 (Ont. C.A.) at para. 60, [2001] O.J. No. 1853 (Ont. C.A.)). 5 The Federal Court judge did accept, however, that the Advisory Council’s decision could be challenged on the procedural question of whether the process leading to the termination of the appointment met the affected person’s legitimate expectations (at para. 21). He did so based on the Federal Court’s reasoning in Black v. Advisory Council for the Order of Canada, 2012 FC 1234 (F.C.) at para. 63, [2012] F.C.J. No. 1309 (F.C.). Drabinsky v. Canada (Attorney General) David G. Near J.A. 5

III. Issues 6 The issues before this Court are: 1. Are decisions of the Advisory Council to recommend termination of an appointment to the Order of Canada justiciable? 2. Did the procedure followed by the Advisory Council fail to meet any legitimate expectations held by Mr. Drabinsky?

IV. Analysis 7 In my view, there is no need for this Court to opine on the issues of justiciability and whether legitimate expectations can be created where no common law duty of fairness arises. Assuming without deciding that the decision to terminate Mr. Drabinsky’s order is justiciable and that the doctrine of legitimate expectations has application, there is no basis to find that the process followed by the Advisory Council failed to meet the appellant’s legitimate expectations. 8 The law is well-settled that only clear, unambiguous, and unqualified representations as to procedure can give rise to a legitimate expectation (Agraira v. Canada (Minister of Public Safety and Emergency Prepared- ness), 2013 SCC 36, [2013] 2 S.C.R. 559 (S.C.C.), at paras. 94, 98, 99. See also Mavi v. Canada (Attorney General), 2011 SCC 30 (S.C.C.) at para. 68, [2011] 2 S.C.R. 504 (S.C.C.)). 9 Before us Mr. Drabinsky argued that he had a legitimate expectation to a fair process and that the Advisory Council would ascertain all of the relevant facts. This did not happen, he argues, in the following respects. 10 First, he was given an inadequate extension of time to respond to the Advisory Council. This meant it had an inadequate record on which to base its recommendation. 11 Second, the Advisory Council did not communicate findings to support its recommendation to the Governor General. 12 Finally, he was not immediately advised of the decision of the Gover- nor General. 13 I reject the notions that Mr. Drabinsky had any legitimate expectation that he would receive an indefinite extension, and that the Advisory Council would make findings of the sort Mr. Drabinsky desired. I reach these conclusions for the following reasons. 14 First, the Policy and Procedure for Termination of Appointment to the Order of Canada relied upon by Mr. Drabinsky does not contain a clear, unambiguous and unqualified representation that any requested extension 6 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

will be granted. At best, the Policy authorizes the Secretary General of the Order to grant an extension of time to respond. Similarly, the Secre- tary General’s statement in his letter of June 7, 2012 to Mr. Drabinsky that he could make representations “supported by the documentation you deem appropriate, by July 7, 2012” could not give rise to a legitimate expectation of an indefinite extension. 15 Second, the Advisory Council put before the Governor General the entire record that was before it and advised that “[a]fter reviewing all the facts in the matter, notably the material provided” the Advisory Council is recommending that Mr. Drabinsky’s appointment be terminated. In other words, the Advisory Council found the record before it supported termination. Nothing in the Policy creates a legitimate expectation that the Advisory Council will give detailed reasons as Mr. Drabinsky seeks. 16 Finally, even if Mr. Drabinsky had a legitimate expectation that he would receive immediate notice of the Governor General’s decision, any failure to do so is of no legal consequence. Mr. Drabinsky commenced his application for judicial review on a timely basis when notified of the decision. 17 As the Federal Court judge found, the process leading to the termination of the appellant’s appointment was consistent with the Policy. The appellant was granted an extension of time to make submissions, and he made substantial written submissions within the extended timeframe granted to him. These materials were considered, and formed the basis of the Advisory Council’s recommendation to the Governor General. The Governor General made his decision based upon the recommendation from the Advisory Council. 18 While the appellant would have preferred greater procedural entitlements, given the limited nature of the entitlements afforded to him under the doctrine of legitimate expectations, I see no basis upon which this Court should intervene.

V. Conclusion 19 I would dismiss the appeal. The respondent has ten (10) days to make submissions in writing as to costs. Mr. Drabinsky shall then have ten (10) days to respond. The parties’ submissions may be in letter form and shall not exceed two (2) pages in length. Drabinsky v. Canada (Attorney General) David G. Near, J.A. 7

Eleanor R. Dawson J.A.:

I agree.

Wyman W. Webb J.A.:

I agree.

David G. Near, J.A.: I. Introduction 1 Garth H. Drabinsky interjette appel de la décision du 8 janvier 2014 par laquelle la Cour fédérale (2014 CF 21) a rejeté sa demande de con- trôle judiciaire. Devant la Cour fédérale, M. Drabinsky a contesté les « décisions » suivantes prises au long du processus ayant abouti a` la rév- ocation de sa nomination a` l’Ordre du Canada: [TRADUCTION] 1. La décision du Conseil consultatif de l’Ordre du Canada (le Con- seil consultatif) d’exiger du demandeur, M. Drabinsky, de pré- senter au Conseil consultatif, au plus tard le 7 août 2012, tous les documents pertinents pour déterminer s’il doit recommander la révocation de la nomination de M. Drabinsky a` titre d’officier de l’Ordre du Canada; 2. La décision du Conseil consultatif de ne pas tenir compte de la demande présentée par M. Drabinsky visant a` reporter l’échéance du 7 août 2012 afin de lui permettre de joindre les personnes qu’il n’a pu joindre et d’obtenir les renseignements et documents qu’il n’a pu obtenir avant cette ech´´ eance ou pendant sa période de dé- tention a` l’Etablissement´ de Beaver Creek, ou la décision de rejeter cette demande; 3. La décision du Conseil consultatif de recommander au gouverneur général du Canada de prendre une ordonnance de révocation de la nomination de M. Drabinsky a` titre d’officier de l’Ordre du Can- ada, décision exposée dans une lettre du 17 janvier 2013 et com- muniquée a` M. Drabinsky par l’entremise de ses avocats le 1er février 2013; 8 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

4. La décision du gouverneur général de prendre l’ordonnance sur le fondement de la recommandation mentionnée au paragraphe précédent. 2 Pour les motifs qui suivent, je rejetterais l’appel.

II. Les faits et l’historique judiciaire 3 Le juge de la Cour fédérale a bien résumé les faits de la présente affaire: [1] Monsieur Garth H. Drabinsky est un impresario et producteur bien connu. En 1995, le gouverneur général lui a décerné l’Ordre du Canada en reconnaissance de sa contribution a` l’industrie du divertissement. [2] En 2009, M. Drabinsky a et´´ e reconnu coupable de deux chefs d’accusation de fraude se rapportant a` la gestion de son entreprise, Livent. La Cour supérieure de justice de l’Ontario l’a condamné a` une peine d’emprisonnement de sept ans. En appel, la Cour d’appel de l’Ontario a maintenu les déclarations de culpabilité, mais a réduit la peine a` cinq ans: R v. Drabinsky, 2011 ONCA 582. [3] En juin 2012, pendant que M. Drabinsky etait´ encore incarcéré, le secrétaire général du gouverneur général lui a ecrit´ pour l’aviser que le Conseil consultatif de l’Ordre du Canada allait examiner s’il y avait lieu de révoquer sa nomination. Le secrétaire général a indiqué a` M. Drabinsky qu’il pouvait présenter des observations ecrites´ au Conseil et a fixé le 7 juillet 2012 comme ech´´ eance. [4] L’avocat de M. Drabinsky a répondu a` la lettre du secrétaire gén- eral´ et a demandé que le délai pour la présentation des observations soit prolongé. En particulier, il a demandé une prolongation jusqu’en janvier 2013, date a` laquelle il etait´ prévu que M. Drabinsky pourrait se voir accorder une semi-liberté; ainsi, M. Drabinsky serait mieux en mesure de rassembler les documents qu’il souhaitait soumettre au Conseil. [5] Le secrétaire général a répondu a` la lettre de l’avocat de M. Drabinsky, affirmant que le Conseil avait convenu d’accorder une prolongation d’un mois a` M. Drabinsky, soit jusqu’au 7 août 2012. [6] Le 3 août 2012, M. Drabinsky a présenté des observations détail- lées au Conseil — 17 pages d’observations et une abondante documentation a` l’appui, y compris un exemplaire de son autobiographie intitulée Closer to the Sun. Toutefois, M. Drabinsky a egalement´ af- firmé qu’il se réservait le droit de soumettre de nombreuses autres observations après sa libération. Le secrétaire général a accusé récep- tion de la documentation présentée par M. Drabinsky, sans aborder la Drabinsky v. Canada (Attorney General) David G. Near, J.A. 9

question de savoir si la soumission d’autres observations serait autorisée. [7] Le Conseil s’est réuni en novembre 2012 et a décidé de recommander au gouverneur général la révocation de la nomination de M. Drabinsky. Le gouverneur général a accepté la recommandation du Conseil et a signé une ordonnance a` cet effet. Le secrétaire général a avisé M. Drabinsky de la décision du gouverneur général, qui a et´´ e par la suite publiée dans la Gazette du Canada. 4 Le juge a rejeté la demande de contrôle judiciaire, ayant conclu que les décisions du Conseil consultatif et du gouverneur général ne pouvaient faire l’objet d’un contrôle sur le fond, etant´ donné que « la décision de conférer ou de ne pas conférer, ou même celle de retirer une nomination honorifique, ne peut porter atteinte aux droits de cette personne, de sorte qu’une telle décision ne peut etreˆ contestée devant un tribunal » (au paragraphe 18). Cette conclusion découle du fait qu’aucun citoyen canadien n’a [TRADUCTION] « droit » a` un honneur (citant Black c. Canada (Prime Minister), 54 O.R. (3d) 215, [2001] O.J. nº 1853 (QL), au paragraphe 60). 5 Le juge de la Cour fédérale a toutefois admis qu’il etait´ permis de contester la décision du Conseil consultatif sur le fondement de la question procédurale de savoir si le processus ayant mené a` la révocation de la nomination avait et´´ e conforme aux attentes légitimes de la personne concernée (au paragraphe 21). Pour arriver a` cette conclusion, il s’est appuyé sur le raisonnement exposé par la Cour fédérale dans le jugement Black c. Conseil consultatif de l’Ordre du Canada, 2012 CF 1234, 2012 A.C.F. nº 1309 (QL), au paragraphe 63.

III. Les questions en litige 6 La Cour doit trancher les questions suivantes: 1. Les décisions du Conseil consultatif de recommander la révoca- tion d’une nomination a` l’Ordre du Canada peuvent-elles etreˆ as- sujetties au contrôle des tribunaux? 2. La procédure suivie par le Conseil consultatif etait-elle´ conforme aux attentes légitimes de M. Drabinsky?

IV. Analyse 7 A` mon sens, la Cour n’a pas a` se prononcer sur la question de l’assujettissement des décisions au contrôle des tribunaux ni sur celle de savoir si des attentes légitimes peuvent etreˆ créées en l’absence d’une 10 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

obligation d’agir equitablement´ issue de la common law. Même en sup- posant — sans toutefois trancher ces questions — que la décision de révoquer la nomination de M. Drabinsky peut faire l’objet d’un recours judiciaire et que la règle de l’attente légitime s’applique, rien ne permet de conclure que le processus suivi par le Conseil consultatif n’était pas conforme aux attentes légitimes de l’appelant. 8 Il est bien etabli´ en droit que seules les déclarations claires, nettes et explicites au sujet de la procédure peuvent susciter une attente légitime (Agraira c. Canada (Sécurité publique et Protection civile), 2013 CSC 36, [2013] 2 R.C.S. 559, aux paragraphes 94, 98 et 99; voir egalement´ Canada (Procureur général) c. Mavi, 2011 CSC 30, [2011] 2 R.C.S. 504, au paragraphe 68). 9 Devant la Cour, M. Drabinsky a fait valoir qu’il etait´ en droit de s’attendre a` ce que le processus soit equitable´ et a` ce que le Conseil consultatif vérifie tous les faits pertinents. Selon lui, cela n’a pas et´´ e le cas sous les rapports suivants. 10 Premièrement, le nouveau délai qu’on lui a accordé pour répondre au Conseil consultatif etait´ insuffisant. Cela signifie que le Conseil ne disposait pas d’un dossier adéquat pour fonder sa recommandation. 11 Deuxièmement, le Conseil consultatif n’a pas communiqué les conclusions etayant´ sa recommandation au gouverneur général. 12 Enfin, M. Drabinsky n’a pas et´´ e informé immédiatement de la déci- sion du gouverneur général. 13 Je rejette l’idée selon laquelle M. Drabinsky pouvait légitimement s’attendre a` se voir accorder un délai indéfini et a` ce que le Conseil consultatif arrive aux conclusions du genre qu’il souhaitait. Je tire ces conclusions pour les raisons qui suivent. 14 Premièrement, dans la Politique et procédure de révocation d’une nomination a` l’Ordre du Canada invoquée par M. Drabinsky, il n’est indiqué nulle part de fa¸con claire, nette et explicite que toute prolongation de délai demandée sera accordée. Tout au plus la Politique autorise- t-elle le secrétaire général de l’Ordre a` prolonger le délai de réponse fixé. De même, les observations faites par le secrétaire général dans la lettre qu’il a adressée le 7 juin 2012 a` M. Drabinsky, a` savoir que ce dernier pouvait présenter des observations [TRADUCTION] « etay´´ ees par la documentation que vous jugez appropriée, au plus tard le 7 juillet 2012 », ne lui permettaient pas de s’attendre légitimement a` se voir accorder un délai indéterminé. Drabinsky v. Canada (Attorney General) Eleanor R. Dawson, J.A. 11

15 Deuxièmement, le Conseil consultatif a présenté au gouverneur gén- eral´ l’ensemble du dossier en sa possession en précisant que, [TRADUC- TION] « [a]près examen de l’ensemble des faits du dossier, et en particulier les documents produits », il recommandait la révocation de la nomination de M. Drabinsky. Autrement dit, le Conseil consultatif a jugé que le dossier dont il disposait justifiait la révocation. Rien dans le texte de la Politique ne permet de s’attendre légitimement a` ce que le Conseil consultatif expose dans le détail les motifs de sa décision comme M. Drabinsky le voudrait. 16 Enfin, si M. Drabinsky pouvait légitimement s’attendre a` etreˆ im- médiatement informé de la décision du gouverneur général, le fait qu’il ne l’ait pas et´´ e est sans conséquence d’un point de vue juridique. Dès que la décision lui a et´´ e communiquée, M. Drabinsky a introduit sa demande de contrôle judiciaire dans le délai prescrit. 17 Comme l’a conclu le juge de la Cour fédérale, le processus ayant mené a` la révocation de la nomination de l’appelant etait´ conforme a` la Politique. L’appelant s’est vu accorder plus de temps pour présenter des observations, ce qu’il a fait par ecrit´ et de manière exhaustive dans le nouveau délai imparti. Le Conseil consultatif a examiné ces observations, qui lui ont servi de fondement pour formuler sa recommandation au gouverneur général. Le gouverneur général a fondé sa décision sur la recommandation du Conseil consultatif. 18 L’appelant aurait sans doute préféré bénéficier de garanties procédurales plus etendues,´ mais etant´ donné le caractère limité des droits qui lui etaient´ conférés en vertu de la règle des attentes légitimes, je ne vois pas sur quelle base la Cour pourrait intervenir.

V. Conclusion 19 Je rejetterais l’appel. Les intimés disposent de dix jours pour formuler des observations par ecrit´ au sujet des dépens, après quoi M. Drabinsky disposera de dix jours pour y répondre. Les observations des parties peuvent etreˆ rédigées sous forme de lettre; elles ne devront pas dépasser deux pages.

Eleanor R. Dawson, J.A.:

Je suis d’accord. 12 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Wyman W. Webb, J.A.:

Je suis d’accord. Appeal dismissed. Camara v. R. 13

[Indexed as: Camara v. R.] Nuno Camara, Appellant and Her Majesty the Queen, Respondent Federal Court of Appeal Docket: A-268-14 2015 FCA 43, 2015 CAF 43 Johanne Gauthier, D.G. Near, A.F. Scott JJ.A. Heard: February 3, 2015 Judgment: February 12, 2015 Law enforcement agencies –––– Police — Organization of police forces — Disciplinary proceedings — Penalties — Miscellaneous –––– Commissioner issued order stopping officer’s pay and allowance during suspension pending outcome of disciplinary proceedings related to theft of $100 during staged scenario testing his integrity — Lengthy grievance process ensued — Acting commissioner of RCMP denied applicant’s grievance with respect to pay stoppage order issued seven years earlier — Officer’s application for judicial review was dismissed — Officer appealed — Appeal dismissed — Delay did not impact fairness of hearing or directly cause significant prejudice — Delay in stopping pay during suspension was reasonable could only have benefited officer who received pay and allowances until order was issued — Time taken for certain steps in grievance process was not inordinate — Independent body set up to review labour matters within RCMP took several years to issue its recommendations, but body was beyond either party’s control and there was no evidence officer attempted to speed up process — Time taken by acting commission to issue final decision was not inordinate, considering that officer had resigned from RCMP by that point — Acting commissioner reasonably found that officer’s behaviour, stealing evidence that had been obtained in what he believed was valid investigation, was outrageous — Reasons were sufficient to allow judicial review. Administrative law –––– Requirements of natural justice — Right to hearing — Procedural rights at hearing — Right to timely hearing –––– Commis- sioner issued order stopping officer’s pay and allowance during suspension pending outcome of disciplinary proceedings related to theft of $100 during staged scenario testing his integrity — Lengthy grievance process ensued — Acting commissioner of RCMP denied applicant’s grievance with respect to pay stoppage order issued seven years earlier — Officer’s application for judicial review was dismissed — Application judge concluded that, on correctness standard, delay did not taint proceedings and that, on reasonableness standard, con- 14 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th) clusion that officer’s behaviour was outrageous breach of code of conduct fell within range of possible outcomes — Officer appealed — Appeal dismissed — Application judge properly applied standards of review — Delay did not impact fairness of hearing or directly cause significant prejudice — Delay in stopping pay during suspension was reasonable could only have benefited officer who received pay and allowances until order was issued — Time taken for certain steps in grievance process was not inordinate, especially as officer requested extensions of time to file submissions — Independent body set up to review labour matters within RCMP took several years to issue its recommendations, but body was beyond either party’s control and there was no evidence officer attempted to speed up process — Time taken by acting commission to issue final decision was not inordinate, considering that officer had resigned from RCMP by that point — Acting commissioner’s decision was reasonable. Administrative law –––– Requirements of natural justice — Right to hearing — Procedural rights at hearing — Reasons for decision –––– Commis- sioner issued order stopping officer’s pay and allowance during suspension pending outcome of disciplinary proceedings related to theft of $100 during staged scenario testing his integrity — Lengthy grievance process ensued — Acting commissioner of RCMP denied applicant’s grievance with respect to pay stoppage order issued seven years earlier — Officer’s application for judicial review was dismissed, including on basis that conclusion that officer’s behaviour was outrageous breach of code of conduct was reasonable and sufficiently explained — Officer appealed — Appeal dismissed — Application judge properly applied standards of review — Acting commissioner reasonably found that officer’s behaviour, stealing evidence that had been obtained in what he believed was valid investigation, was outrageous — Acting commissioner provided reasons sufficient to explain how decision was reached and to allow judicial review. Cases considered by A.F. Scott J.A.: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 360 D.L.R. (4th) 411, 2013 CarswellNat 1983, 2013 CarswellNat 1984, 2013 SCC 36, 52 Admin. L.R. (5th) 183, 16 Imm. L.R. (4th) 173, [2013] 2 S.C.R. 559, 446 N.R. 65, [2013] S.C.J. No. 36 (S.C.C.) — referred to Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2000 CarswellBC 1860, 2000 CarswellBC 1861, 3 C.C.E.L. (3d) 165, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 38 C.H.R.R. D/153, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567, 23 Admin. L.R. (3d) 175, 2000 C.L.L.C. 230-040, 260 N.R. 1, 2000 CSC 44, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 77 C.R.R. (2d) 189, 141 B.C.A.C. 161, 231 W.A.C. 161, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, REJB 2000-20288 (S.C.C.) — followed Camara v. R. A.F. Scott J.A. 15

N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Statutes considered: Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 Generally — referred to s. 33(1) — referred to

APPEAL by officer from judgment reported at Camara v. Canada (2014), 2014 FC 446, 2014 CarswellNat 1612, 76 Admin. L.R. (5th) 15 (F.C.), dismissing his application for judicial review from denial of grievance.

Richard M. Beamish, for Appellant, Nuno Camara Meghan Riley, for Respondent, Her Majesty the Queen

A.F. Scott J.A.:

1 Mr. Nuno Camara (the Appellant) is appealing the decision of Mactavish J. of the Federal Court (the Judge) who dismissed his application for judicial review of a decision rendered by the Acting Commis- sioner of the Royal Canadian Mountain Police (RCMP) denying his Level II Grievance with respect to his suspension without pay and al- 16 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

lowances pending the outcome of disciplinary proceedings taken against him by his employer. 2 For reasons that follow, I believe that this appeal should be dismissed. 3 In his 42-page decision, the Acting Commissioner dealt with a number of arguments of the Appellant disputing the issuance of a suspension without pay and allowances order (SPAO) against him, several of which are not relevant in this appeal. Of particular importance is the Acting Commissioner’s finding that the Appellant was not the victim of undue delay in the issuance of a SPAO and the processing of his grievance. The Acting Commissioner noted that the duration of the SPAO was not unreasonable considering that SPAOs are preventive measures designed to protect the integrity of the RCMP. When applied, SPAOs normally en- dure pending resolution of the disciplinary proceedings (a process distinct from the grievance process itself). With respect to the delay in the grievance process per se, the Acting Commissioner concluded that it was not undue so as to justify granting the grievance. 4 The Acting Commissioner also found that the SPAO was warranted in the particular circumstances of this case. He held that the Appellant’s behaviour constituted a breach of the Code of Conduct of the RCMP and that it was so outrageous as to significantly affect the performance of his duties under the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R- 10 (the RCMP Act). 5 On appeal from a decision of the Federal Court in an application for judicial review, this Court must determine whether the court below selected the proper standard of review and applied it correctly (Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 (S.C.C.) at para. 45). 6 In the present case, the Judge applied the standard of correctness to the issue of delay as she accepted that it could raise an issue of procedural fairness (reasons of the Judge at paragraph 18) and she assessed the Acting Commissioner’s substantive decision on the standard of reasonableness (reasons of the Judge at paragraph 24). Although the Appellant argued in his memorandum that the Judge could have been clearer as to the standard applied to the issue of delay, at the hearing, he did not dispute that she selected the appropriate standards of review for the two questions before her. 7 Applying the standard of correctness, the Judge concluded that the Appellant had failed to meet his burden of establishing that the delay involved met the required threshold: that it was so oppressive as to taint Camara v. R. A.F. Scott J.A. 17

the proceedings and to cause serious prejudice (reasons of the Judge at paragraph 37). She noted that the Appellant was partly responsible for the delay since he requested several extensions to file his responses at various stages of the grievance process (reasons of the Judge at paragraph 36). The Judge also noted that the Appellant relied on bold asser- tions of unfairness and prejudice which were not substantiated. 8 The Judge was satisfied that the Acting Commissioner’s conclusion, in respect of the outrageous character of the breach of the code of conduct and his interpretation of the Suspension Policy, was clearly explained and was sufficiently reasoned. In her view, the decision fell within the range of possible outcomes as established in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para. 47 [Dunsmuir]. 9 The Appellant challenges the Judge’s and the Acting Commissioner’s decisions on two grounds. He asserts that the Judge failed to appreciate that it was incumbent on the Respondent to justify the inordinate delay incurred, since seven years had passed before a final decision was released whereas the Commissioner’s Standing Order in the RCMP’s Ad- ministrative Manual II.38 mandates early resolution of this type of grievance. The Appellant also claims that the Acting Commissioner’s decision cannot be reasonable because his reasons are insufficient. 10 I will now examine if the Judge properly applied the standards of review, focussing firstly on the Appellant’s argument that the delay involved constituted a breach of procedural fairness and an abuse of process. To do so, I will apply the teachings of the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 (S.C.C.) [Blencoe], where the requirement for prejudice is clearly stated: [101] In my view, there are appropriate remedies available in the administrative law context to deal with state-caused delay in human rights proceedings. However, delay, without more, will not warrant a stay of proceedings as an abuse of process at common law. (...) In the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay. (...) [115] I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. (...) It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing 18 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. [My emphasis] 11 It is undisputed that the delay in this matter did not impact the fairness of the hearing. Further, I have not been persuaded that the timeline involved in the Appellant’s case directly caused a significant prejudice. 12 As I review the stages involved in coming to a final decision, I note that from the date of the Appellant’s contravention of the Code of Con- duct (November 23, 2005) to the implementation of SPAO, four and a half months elapsed. During that time, the Appellant was served with a Notice of Suspension on November 24, 2005, followed by a Notice of Intent to Recommend Stoppage of Pay and Allowances on December 30, 2005. He provided his first response on January 23, 2006. He received a reply on January 25, 2006 and filed a second response on February 16, 2006. He was copied on the Notice to Recommend the Stoppage of Pay and Allowances dated February 22, 2006. The SPAO was applied on April 13, 2006. Not only does this delay appear reasonable, but it could only have benefited the Appellant who received his pay and allowances until the SPAO was issued (reasons of the Judge at paragraph 23). 13 The Appellant filed his Level I grievance disputing the imposition of the SPAO on May 18, 2006. The documentation supporting the SPAO order was sent on July 11 and delivered on July 13, 2006, according to Canada Post. The Appellant requested that it be forwarded to a different address on August 22, 2006, claiming he had not received the documentation. It was served by fax on August 30, 2006. The Appellant and his representatives requested five extensions; all were granted between Sep- tember 12 and November 11, when he finally filed his submissions. The Respondent received the Appellant’s submissions on November 11, 2006 and filed its response on December 8, 2006. On December 18, 2006, the Appellant received the Respondent’s response and requested an extension until January 16, 2007, which was approved, but he did not file additional materials. The level I decision was issued on May 22, 2008. 14 It is difficult to conclude that the time taken for the above-mentioned steps is inordinate, given that the Appellant provided no information as to how long this process normally takes. This is especially so considering the number of extensions he requested. Camara v. R. A.F. Scott J.A. 19

15 The Appellant indicated his intention of appealing the Level I decision on June 5, 2008 but requested an extension of time to file his appeal submissions until October 15, 2008 because his sentencing hearing was scheduled for August 29, 2008. The extension was granted. However, the Appellant was convicted of one count of theft under $5000, after he pleaded guilty in Manitoba Provincial Court. He resigned from the RCMP on September 23, 2008, before the disciplinary process was concluded. 16 Following the Appellant’s resignation, however long the delay to obtain a decision on the Level II grievance, the only issue at stake was the reimbursement of the pay he would have received up to his resignation. 17 It is true that the External Review Committee (the ERC), an independent body set up to review labour matters within the RCMP pursuant to subsection 33(1) of the RCMP Act, took a very long time to issue its recommendations (about three and a half years). No one knows why this is so. The ERC is beyond the control of either party. There is no evidence that the Appellant made any attempt to speed up the process. 18 Once the ERC issued its recommendation, the Acting Commissioner took about six months to issue his final decision. Considering that the Appellant was no longer a member of the RCMP at the time, there is no indication or evidence that this delay was inordinate. Consequently, I reject the Appellant’s first argument. 19 I now turn to the Appellant’s second argument. Like the Judge, I find that the Acting Commissioner’s decision was reasonable. His decision was based on his interpretation of the RCMP Suspension Policy, in which he has significant expertise. The Acting Commissioner considered all of the arguments that were submitted and determined that the Appel- lant’s conduct met the criteria found in sections d.9 and d.10 of the RCMP Suspension Policy since he stole evidence that had been obtained in the course of what he believed was a valid investigation. As previously mentioned, the Acting Commissioner concluded that such behaviour was outrageous. While the Appellant’s interpretation of the Sus- pension Policy could also have been adopted, the interpretation and conclusion of the Acting Commissioner were open to him. The Acting Commissioner’s decision is owed deference and I find that his decision was reasonable. 20 The Appellant would clearly have preferred more detailed reasons from the Acting Commissioner and argued that the reasons given were insufficient. I see no valid reason to set the Acting Commissioner’s deci- 20 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

sion aside on this basis. The reasons were thorough enough to explain how the Acting Commissioner reached his conclusion and for the Federal Court to judicially review the said decision (N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.) at para. 16). 21 In sum, I conclude that the Judge properly applied the standards of review. 22 The appeal should be dismissed with costs. At the hearing, the parties agreed that a lump sum of $1,400 would be appropriate to cover either party’s costs.

Johanne Gauthier J.A.:

I agree

D.G. Near J.A.:

I agree

A.F. Scott, J.A.:

1 M. Nuno Camara (l’appelant) interjette appel de la décision de la juge Mactavish (la juge), de la Cour fédérale, qui a rejeté sa demande de révi- sion judiciaire d’une décision rendue par le commissaire par intérim de la Gendarmerie royale du Canada (la GRC). Par cette décision, ce dernier avait rejeté le grief de niveau II de M. Camara concernant sa suspension sans solde ni indemnités dans l’attente de l’issue du processus disciplinaire engagé contre lui par son employeur. 2 Par les motifs qui suivent, je crois que le présent appel doit etreˆ rejeté. 3 Dans sa décision de 42 pages, le commissaire par intérim a examiné une série d’arguments présentés par l’appelant pour contester l’ordonnance de cessation de la solde et des indemnités (l’OCSI) emise´ contre lui, dont plusieurs n’étaient pas pertinents pour le présent appel. Il est particulièrement important de souligner la conclusion du commissaire par intérim voulant que l’appelant n’ait pas subi de retard indu en ce qui concerne la délivrance de l’OCSI et le traitement de son grief. Selon le commissaire par intérim, la durée de l’OCSI n’était pas déraisonnable puisque les OCSI constituent des mesures préventives visant a` protéger l’intégrité de la GRC. Les OCSI demeurent normalement en vigueur pendant toute la durée du processus disciplinaire (processus distinct du Camara v. R. A.F. Scott, J.A. 21

processus de grief). En ce qui concerne les retards subis dans le cadre du processus de grief en tant que tel, le commissaire par intérim a conclu qu’ils n’étaient pas inacceptables au point de donner droit au grief. 4 Le commissaire par intérim a aussi conclu que l’OCSI etait´ justifiée vu les circonstances particulières de l’affaire. Il a jugé que la conduite de l’appelant violait le Code de déontologie de la GRC et qu’elle etait´ a` ce point scandaleuse qu’elle etait´ susceptible de porter sérieusement atteinte a` la bonne exécution des fonctions par l’appelant aux termes de la Loi sur la Gendarmerie royale du Canada, L.R.C. 1985, ch. R-10 (la Loi sur la GRC). 5 En matière d’appel d’une décision de la Cour fédérale portant sur une demande de révision judiciaire, la Cour doit rechercher si la cour d’instance inférieure a choisi la bonne norme de contrôle et l’a correctement appliquée (Agraira c. Canada (Sécurité publique et Protection civile), 2013 CSC 36, [2013] 2 R.C.S. 559 au paragraphe 45). 6 Dans la présente affaire, la juge a appliqué la norme de la décision correcte a` la question du retard, puisqu’elle a accepté que cette dernière puisse soulever un problème d’équité procédurale (motifs de la juge au paragraphe 18). Elle a apprécié la décision de fond du commissaire par intérim selon la norme de la décision raisonnable (motifs de la juge au paragraphe 24). Bien que l’appelant ait soutenu dans son mémoire que la juge aurait pu enoncer´ plus clairement la norme appliquée quant a` la question du retard, lors de l’audience, il n’a pas contesté que la juge a retenu les normes appropriées pour réviser les deux questions dont elle etait´ saisie. 7 Appliquant la norme de la décision correcte, la juge a conclu que l’appelant ne s’était pas acquitté de son fardeau d’établir que le retard en cause satisfaisait aux conditions minimales, a` savoir qu’il etait´ oppressif au point de vicier la procédure en cause et qu’il avait provoqué un préjudice grave (motifs de la juge au paragraphe 37). Elle a fait observer que l’appelant etait´ en partie responsable du retard vu qu’il a demandé plusieurs prorogations de délai pour le dépôt de ses réponses a` diverses etapes´ du processus de grief (motifs de la juge au paragraphe 36). La juge a aussi souligné que l’appelant s’est fondé sur de sérieuses alléga- tions d’iniquité et de préjudice, lesquelles etaient´ non-fondées. 8 Selon la juge, la conclusion du commissaire par intérim portant sur le caractère scandaleux du manquement au Code de déontologie et son in- terprétation de la Politique de suspension etait´ clairement expliquée et suffisamment motivée, et la décision appartenait aux issues possibles au 22 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

sens des enseignements de l’arrêt Dunsmuir c. Nouveau-Brunswick, 2008 CSC 9, [2008] 1 R.C.S. 190 au paragraphe 47 [Dunsmuir]. 9 L’appelant invoque deux moyens pour contester les décisions de la juge et du commissaire par intérim. Il affirme d’abord que la juge n’a pas tenu compte du fait qu’il incombait a` l’intimée d’expliquer de fa¸con satisfaisante les délais excessifs - il a fallu en effet sept années pour que la décision définitive soit rendue, alors que les Consignes du commissaire, figurant au chapitre II.38 du Manuel d’administration de la GRC, imposent un règlement rapide de ce type de grief. L’appelant soutient egalement´ que la décision du commissaire par intérim ne peut pas etreˆ raisonnable vu qu’elle n’est pas suffisamment motivée. 10 J’examinerai maintenant si la juge a correctement appliqué les normes de contrôle en portant d’abord mon attention sur l’argument de l’appelant voulant que le retard constituait un manquement a` l’équité procédurale et un abus de procédure. Pour ce faire, j’appliquerai les enseignements de l’arrêt Blencoe c. Colombie-Britannique (Human Rights Commission), 2000 CSC 44, [2000] 2 R.C.S. 307 [Blencoe], où la Cour suprême du Canada a clairement observé qu’il doit y avoir préjudice: [101] Selon moi, le droit administratif offre des réparations ap- propriées en ce qui concerne le délai imputable a` l’Etat´ dans des pro- cédures en matière de droits de la personne. Cependant, le délai ne justifie pas, a` lui seul, un arrêt des procédures comme l’abus de pro- cédure en common law. [...] En droit administratif, il faut prouver qu’un délai inacceptable a causé un préjudice important. [...] [115] Je serais disposé a` reconnaˆıtre qu’un délai inacceptable peut constituer un abus de procédure dans certaines circonstances, même lorsque l’équité de l’audience n’a pas et´´ e compromise. [...] Il faut toutefois souligner que rares sont les longs délais qui satisfont a` ce critère préliminaire. Ainsi, pour constituer un abus de procédure dans les cas où il y a une atteinte a` l’équité de l’audience, le délai doit etreˆ manifestement inacceptable et avoir directement causé un préjudice important. Il doit s’agir d’un délai qui, dans les circonstances de l’affaire, déconsidérerait le régime de protection des droits de la personne. [Non souligné dans l’original.] 11 Il n’est pas controversé par les parties que le délai n’a pas eu d’incidence sur l’équité de l’audience. Je ne puis par ailleurs conclure que les délais en cause dans la présente affaire ont causé un préjudice direct a` l’appelant. Camara v. R. A.F. Scott, J.A. 23

12 Si j’examine les etapes´ suivies avant que la décision définitive ne soit rendue, je note que quatre mois et demi se sont ecoul´´ es entre la date de la violation du Code de déontologie (le 23 novembre 2005) et l’application de l’OCSI. Pendant ce temps, l’appelant s’est vu signifier un avis de suspension, le 24 novembre 2005, suivi par un avis d’intention de recommander la cessation du paiement de sa solde et de ses indemnités, le 30 décembre 2005. Il a remis sa première réponse le 23 janvier 2006, a re¸cu une réponse a` celle-ci le 25 janvier 2006 et a déposé une deuxième ré- ponse le 16 février 2006. Il a obtenu copie de l’avis recommandant la cessation de sa solde et de ses indemnités, le 22 février 2006, suivi de l’OCSI le 13 avril 2006. Non seulement ces délais ne m’apparaissent-ils raisonnables, mais encore ils ne pouvaient etreˆ qu’à l’avantage de l’appelant, qui a re¸cu sa solde et ses indemnités jusqu’à la délivrance de l’OCSI (motifs de la juge au paragraphe 23). 13 L’appelant a déposé son grief de niveau I, par lequel il contestait l’imposition de l’OCSI, le 18 mai 2006. La documentation a` l’appui de l’OCSI a et´´ e envoyée le 11 juillet 2006 et a et´´ e livrée le 13 juillet suivant, selon Postes Canada. Le 22 août 2006, l’appelant a toutefois demandé que cette documentation soit acheminée a` une autre adresse, déclarant ne pas l’avoir re¸cue. Elle lui a et´´ e signifiée par télécopieur le 30 août 2006. L’appelant et ses représentants ont ensuite demandé cinq prorogations de délai, qui ont toutes et´´ e accordées, entre le 12 septembre et le 11 novembre, date a` laquelle il a finalement déposé ses arguments ecrits.´ L’intimée a re¸cu l’argumentation ecrite´ de l’appelant le 11 novembre 2006 et a dé- posé sa réponse le 8 décembre 2006. Le 18 décembre 2006, l’appelant a re¸cu la réponse de l’intimée et a demandé une prorogation de délai jusqu’au 16 janvier 2007, qui lui fut accordée. Il n’a toutefois pas déposé de nouveaux documents. La décision de niveau I a et´´ e rendue le 22 mai 2008. 14 Il est difficile de conclure que le temps ecoul´´ e au cours des etapes´ susmentionnées etait´ excessif vu que l’appelant n’a produit aucun el´´ e- ment de preuve quant aux délais normalement encourus au cours d’un tel processus et compte tenu, particulièrement, de ses nombreuses demandes de prorogation de délais. 15 L’appelant a fait connaˆıtre son intention d’interjeter appel de la déci- sion de niveau I le 5 juin 2008, mais a demandé une prorogation de délai jusqu’au 15 octobre 2008 — qui lui a et´´ e accordée — pour déposer ses arguments ecrits´ relatifs a` la procédure d’appel parce que son audience sur la détermination de la peine devait avoir lieu le 29 août 2008. Or, 24 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

l’appelant a et´´ e déclaré coupable d’un chef de vol de moins de 5000 $, après avoir plaidé coupable a` des accusations devant la Cour Provinciale du Manitoba, et a démissionné de la GRC le 23 septembre 2008, soit avant la conclusion du processus disciplinaire. 16 S’il est vrai que le délai d’obtention d’une décision de niveau II peut etreˆ long, force est de constater que la seule question en litige qui subsis- tait après la démission de l’appelant portait sur le remboursement du salaire qu’il aurait re¸cu jusqu’à la date de sa démission. 17 Le Comité externe d’examen de la GRC (le CEE), organisme in- dépendant créé pour examiner les questions de relations de travail au sein de la GRC conformément au paragraphe 33(1) de la Loi sur la GRC, a effectivement pris beaucoup de temps pour formuler ses recommandations (environ trois ans et demi), sans expliquer les raisons de ce délai. Le CEE echappe´ toutefois au contrôle des deux parties et rien n’indique que l’appelant ait tenté d’accélérer le processus. 18 Après que le CEE eut formulé ses recommandations, le commissaire par intérim a pris environ six mois pour rendre sa décision définitive. Comme l’appelant n’était plus membre de la GRC a` cette epoque,´ rien ne permet de penser ni ne prouve que ce délai etait´ excessif. Par conséquent, je rejette le premier argument de l’appelant. 19 J’aborde maintenant le deuxième argument de l’appelant, je conclus a` l’instar de la juge que la décision du commissaire par intérim etait´ raisonnable. Elle découlait de son interprétation de la Politique de suspension de la GRC, sur laquelle il jouit d’une grande expertise. Le commissaire par intérim s’est penché sur l’ensemble des arguments qui ont et´´ e présentés et a conclu que la conduite de l’appelant satisfaisait aux critères enonc´´ es aux articles d.9 et d.10 de la Politique de suspension de la GRC, etant´ donné qu’il a volé des el´´ ements de preuve qui avaient et´´ e obtenus dans le cadre de ce qu’il croyait etreˆ une enquête valide. Comme nous l’avons déjà mentionné, le commissaire par intérim a conclu qu’une telle conduite etait´ scandaleuse. Il est vrai que l’interprétation de la Poli- tique de suspension proposée par l’appelant aurait aussi pu etreˆ retenue, mais l’interprétation et la conclusion du commissaire par intérim etaient´ néanmoins possibles et acceptables. Il convient de faire preuve de retenue a` l’égard de la décision du commissaire par intérim, et je conclus que sa décision etait´ raisonnable. 20 L’appelant aurait manifestement préféré que le commissaire par in- térim fasse etat´ de motifs plus détaillés et a soutenu que les motifs don- nés etaient´ insuffisants. Je ne vois aucune raison valable d’annuler la dé- Camara v. R. D.G. Near, J.A. 25

cision du commissaire par intérim pour cette raison. Les motifs etaient´ suffisamment détaillés pour expliquer comment le commissaire par in- térim a tiré sa conclusion et permettre a` la Cour fédérale d’instruire la procédure en révision judiciaire de la décision (Newfoundland and Labrador Nurses’ Union c. Terre-Neuve-et-Labrador (Conseil du Trésor), 2011 CSC 62, [2011] 3 R.C.S. 708 au paragraphe 16). 21 En résumé, je conclus que la juge a correctement appliqué les normes de contrôle. 22 L’appel doit etreˆ rejeté avec dépens. A` l’audience, les parties ont convenu qu’une somme forfaitaire de 1 400 $ permettrait de couvrir les dépens de l’une ou l’autre partie.

Johanne Gauthier, J.A.:

Je suis d’accord.

D.G. Near, J.A.:

Je suis d’accord. Appeal dismissed. 26 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

[Indexed as: Africentric Learning Institute of Nova Scotia Inc. v. Registry of Joint Stock Co.] Africentric Learning Institute of Nova Scotia Inc., Applicant v. Registry of Joint Stock Companies and Delmore Buddy Daye Africentric Learning Institute Inc., Respondents Nova Scotia Supreme Court Docket: Hfx. 418197 2014 NSSC 319 Arthur LeBlanc J. Heard: May 5, 2014 Judgment: August 28, 2014 Administrative law –––– Requirements of natural justice — Bias — Miscel- laneous –––– School A registered name “Africentric Learning Institute of Nova Scotia Inc.” as business name under Companies Act — Department of Educa- tion and certain individuals wanted school A to be named “Delmore Buddy Daye Africentric Learning Institute Inc.” — Minister of Education indicated her department would not fund school A unless it bore Mr. Daye’s name — School A refused to change its name — School D was incorporated and was allowed to register name “Delmore Buddy Daye Africentric Learning Institute Inc.” although name registration was initially rejected on basis of similarity — Regis- trar of Joint Stock Companies refused School A’s request to direct school D to change its name due to similarity — School A applied for judicial review — Ap- plication granted — Registrar met with someone she believed was from Depart- ment of Education after initially rejecting school D’s proposed name — Regis- trar did not normally meet with clients but deviated from her standard practice due to this person’s presumed connection with another government department — Minutes after meeting with this person, registrar reversed prior decision without consulting school A or seeking its consent when such steps would have been expected — Informed person viewing matter realistically and practically would think it more likely than not that Registrar would not decide school A’s request fairly — Registrar’s conduct raised reasonable apprehension of bias that resulted in denial of procedural fairness to school A — Registrar to direct school D to change its name. Business associations –––– Creation and organization of business associations — Corporations — Corporate name — Similarity of names — Gen- eral principles –––– School A registered name “Africentric Learning Institute of Nova Scotia Inc.” as business name under Companies Act — Department of Ed- ucation and others wanted school A to be named “Delmore Buddy Daye Af- Africentric Learning Institute (NS) v. Joint Stock Co. 27

ricentric Learning Institute Inc.” — School A refused to change its name so school D was incorporated — School D was ultimately allowed to register name “Delmore Buddy Daye Africentric Learning Institute Inc.” after name change was initially rejected — School A unsuccessfully asked Registrar of Joint Stock Companies to direct school D to change its name pursuant to s. 16 of Act, due to similarity — School A applied for judicial review — Application granted — Registrar’s decision quashed due to bias; registrar to order school D to change its name — In any event, registrar’s decision should be quashed as unreasonable — Standard of reasonableness applies to decision by Registrar under s. 16 — Registrar failed to apply correct test and consider appropriate contextual factors — Primary flaw in registrar’s decision was her rejection of standard of “likely to deceive”, which she considered to be lesser threshold than that of “calculated to deceive” as it appears in s. 16 — If Registrar had properly considered contextual factors when she performed textual analysis, sole reasonable conclusion would have been that there was probability of deception. Cases considered by Arthur LeBlanc J.: Alliance Pipeline Ltd. v. Smith (2011), 328 D.L.R. (4th) 1, 56 C.E.L.R. (3d) 161, 16 Admin. L.R. (5th) 157, [2011] 1 S.C.R. 160, 2011 SCC 7, 2011 Car- swellNat 202, 2011 CarswellNat 203, 102 L.C.R. 1, 412 N.R. 66, [2011] S.C.J. No. 7, [2011] A.C.S. No. 7 (S.C.C.) — followed Bowater Mersey Paper Co. v. C.E.P., Local 141 (2010), (sub nom. Bowater Mersey Paper Co. v. Communications, Energy & Paperworkers Union of Canada, Local 141) 289 N.S.R. (2d) 351, (sub nom. Bowater Mersey Paper Co. v. Communications, Energy & Paperworkers Union of Canada, Local 141) 916 A.P.R. 351, (sub nom. CEPU, Local 141 v. Bowater Mersey Paper Co.) 2010 C.C.L.C. 220-022, 2010 CarswellNS 152, 2010 NSCA 19, 3 Ad- min. L.R. (5th) 261, 192 L.A.C. (4th) 193 (N.S. C.A.) — referred to Brian Neil Friesen Dental Corp. v. Manitoba (Director of Companies Office) (2011), 2011 MBCA 20, 2011 CarswellMan 50, [2011] 4 W.W.R. 577, 507 W.A.C. 197, 262 Man. R. (2d) 197, 27 Admin. L.R. (5th) 102, [2011] M.J. No. 50 (Man. C.A.) — considered Canadian College of Business & Computers Inc. v. Superintendent, Under The Private Career Colleges Act (2010), 17 Admin. L.R. (5th) 245, 272 O.A.C. 177, 2010 CarswellOnt 9555, 2010 ONCA 856, [2010] O.J. No. 5435 (Ont. C.A.) — referred to Canadian Motorways Ltd. v. Laidlaw Motorways Ltd. (1973), [1974] S.C.R. 675, 11 C.P.R. (2d) 1, 40 D.L.R. (3d) 52, 1973 CarswellOnt 578, 1973 Cars- wellOnt 579 (S.C.C.) — followed CC Chemicals Ltd., Re (1967), [1967] 2 O.R. 248, 63 D.L.R. (2d) 203, 36 Fox Pat. C. 152, 52 C.P.R. 97, 1967 CarswellOnt 37 (Ont. C.A.) — followed Dorset Seafoods Ltd. v. Dorset Fisheries Ltd. (1987), 1987 CarswellNfld 62, 14 C.I.P.R. 282, 64 Nfld. & P.E.I.R. 234, 197 A.P.R. 234 (Nfld. T.D.) — considered 28 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Giguère c. Chambre des notaires du Québec (2004), 2004 SCC 1, 2004 Car- swellQue 19, 2004 CarswellQue 20, 235 D.L.R. (4th) 422, (sub nom. Giguère v. Chambre des notaires du Québec) 315 N.R. 346, [2004] R.R.A. 5, [2004] 1 S.C.R. 3, REJB 2004-53100, [2004] A.C.S. No. 5, [2004] S.C.J. No. 5 (S.C.C.) — considered IMP Group International Inc. v. Nova Scotia (Attorney General) (2013), 2013 CarswellNS 811, 2013 NSSC 332, 1063 A.P.R. 188, 336 N.S.R. (2d) 188, 65 Admin. L.R. (5th) 67 (N.S. S.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) (1992), 134 N.R. 241, [1992] 1 S.C.R. 623, 89 D.L.R. (4th) 289, 4 Admin. L.R. (2d) 121, 95 Nfld. & P.E.I.R. 271, 301 A.P.R. 271, 1992 CarswellNfld 179, 1992 CarswellNfld 170, EYB 1992-67349, [1992] S.C.J. No. 21 (S.C.C.) — considered Pictou Landing Band Council v. Canada (Attorney General) (2013), 2013 FC 342, 2013 CarswellNat 990, 2013 CF 342, [2013] 3 C.N.L.R. 371, 2013 Car- swellNat 2484, 430 F.T.R. 141 (Eng.), [2013] F.C.J. No. 367 (F.C.) — referred to R. v. S. (R.D.) (1997), 161 N.S.R. (2d) 241, 477 A.P.R. 241, 151 D.L.R. (4th) 193, 118 C.C.C. (3d) 353, 1997 CarswellNS 301, 1997 CarswellNS 302, 10 C.R. (5th) 1, 218 N.R. 1, 1 Admin. L.R. (3d) 74, [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84 (S.C.C.) — followed Africentric Learning Institute (NS) v. Joint Stock Co. 29

Telus Communications Inc. and TWU (Underwood), Re (2014), 2014 ABCA 199, 2014 CarswellAlta 964, 70 Admin. L.R. (5th) 100, [2014] A.J. No. 630 (Alta. C.A.) — referred to Statutes considered: Companies Act, R.S.N. 1970, c. 54 Generally — referred to s. 22 — considered Companies Act, R.S.N.S. 1989, c. 81 Generally — referred to s. 16 — considered s. 16(1) — considered s. 16(2) — considered Companies Act, 1862 (25 & 26 Vict.), c. 89 s. 6 — considered Companies Act, R.S.S. 1978, c. C-23 s. 228(1) — considered Regulations considered: Education Act, S.N.S. 1995-96, c. 1 Ministerial Education Act Regulations, N.S. Reg. 80/97 s. 43(h) — considered Words and phrases considered: calculated to deceive [Section 16 of the Companies Act, R.S.N.S. 1989, c. 81] prohibits registration of a company with a name that is identical to an existing registered entity, or so nearly resembling an existing registered entity “as to be calculated to deceive.” ..... The Registrar rejected [the company’s] argument that the language of “calculated to deceive” used in [s. 16 of] the Act should be interpreted to mean “likely to deceive” . . . The primary flaw in the Registrar’s decision is her rejection of the standard of “likely to deceive”, which she considered to be a “lesser threshold” than that of “calculated to deceive.” In [Re CC Chemicals Ltd., [1967] 2 OR 248, 1967 CarswellOnt 37 (CA)], [the court] held that the test of “likely to deceive” means that deception is probable, not possible.

APPLICATION by corporation for judicial review of decision of Registrar of Joint Stock Companies.

Sheree Conlon, Ian Breneman, for Applicant 30 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Edward Gores, Q.C., for Respondent, Registrar of Joint Stock Companies Lauren A. Grant, for Respondent, Delmore Buddy Daye Africentric Learning Institute

Arthur LeBlanc J.: Introduction 1 This is an application by the Africentric Learning Institute of Nova Scotia (“ALI”) for judicial review of a decision of the Registrar of Joint Stock Companies (the “Registrar”) dated June 25, 2013, in which the Registrar refused to direct a change of name for the Delmore Buddy Daye Africentric Learning Institute (“DBDALI”) pursuant to s. 16 of the Companies Act, RSNS 1989, c. 81. 2 ALI alleges that the Registrar’s conduct in her dealings with DBDALI raises a reasonable apprehension of bias, and her decision should be quashed due to a lack of procedural fairness. In the alternative, ALI says the Registrar’s decision was unreasonable. The Registrar denies the allegation of bias but takes no position with respect to the reasonableness of her decision. 3 DBDALI was added as a party to the proceeding by Consent Order at the Motion for Directions on September 24, 2013. It submits that ALI has failed to meet the test for reasonable apprehension of bias. It further argues that the Registrar’s decision was reasonable and the application for judicial review should be dismissed.

The Legislative Provision 4 Section 16 of the Companies Act provides as follows: 16 (1) No company shall be registered under a name (a) identical with that of any other subsisting company, incorporated or unincorporated, or so nearly resembling the same as to be calculated to deceive, except under a name resembling that of the subsisting company if the subsisting company tes- tifies its consent in such manner as the Registrar requires; (b) which, in the opinion of the Registrar, suggests or is calculated to suggest the patronage of Her Majesty or of any member of the Royal Family or connection with Her Majesty’s Government or any department thereof; (c) otherwise objectionable; or (d) otherwise prohibited by regulation. Africentric Learning Institute (NS) v. Joint Stock Co. Arthur LeBlanc J. 31

(2) If any company, through inadvertence or otherwise, is or has been registered by a name (a) identical with that of any other subsisting company, incorporated or unincorporated, or which the Registrar deems to so nearly resemble the name as to be calculated to deceive, or contains any words prohibited under clause (b) of subsection (1) except in a case in which such consent as aforesaid has been given; or (b) which the Registrar deems to be otherwise objectionable by reason of this Section or otherwise, the first mentioned company shall, upon the direction of the Regis- trar, change its name, and if any company fails to change its name within two months after being so directed, the Registrar may change its name to any name he deems to be unobjectionable, and upon the change being made, the Registrar shall enter the new name on the register in the place of the former name, and shall issue a certificate of change of name to meet the circumstances of the case.

The History of ALI 5 In December of 2006, the proprietors of ALI submitted a request to the Registry of Joint Stock Companies (the “Registry”) to reserve the corporate name “Africentric Learning Institute”. On December 19, 2006, the Registrar, Kerry MacLean, refused to permit reservation of the name due to its similarity to an existing entity: This letter is to inform you that the name AFRICENTRIC LEARN- ING INSTITUTE submitted for reservation has been rejected. THE NAME REQUESTED IS IDENTICAL OR TOO SIMILAR TO A NAME OR NAMES RETRIEVED BY THE NUANS SEARCH (a NUANS report is enclosed). ... 6 Counsel for ALI sought clarification on the matter and was told that ALI’s proposed name was too similar to a society incorporated as the Africentric Learning Associates (“ALA”). Counsel subsequently advised the Registry that ALA had agreed to provide its consent to ALI’s incorporation under the proposed name. The Registry responded: ... I have consulted with Kerry [the Registrar] about this name. She will not allow the registration of this name as she considers they are too similar. Even if the existing society gives consent, she feels that it will be too confusing to the public. 32 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

7 On January 12, 2007, the Registrar wrote to counsel for ALI advising that the name Africentric Learning Institute would be reserved, provided it was incorporated as a company limited by guarantee, and ALA gave its written consent. 8 Although ALI considered incorporating under these conditions, it ultimately decided that it preferred not to be bound to incorporate as a company limited by guarantee. On June 27, 2007, counsel for ALI informed the Registrar that it was in negotiations with ALA for the latter to change its name to Network of Africentric Education Associations (“NOAEA”), and asked whether this would permit ALI to reserve the name “Africentric Learning Institute of Nova Scotia” without conditions. 9 On July 10, 2007, counsel for ALI spoke to Ron Skibbens of Service Nova Scotia and Municipal Relations by telephone to discuss the naming issue. Mr. Skibbens wrote to counsel later that day, reiterating the understanding that ALA would change its name to NOAEA so that ALI could incorporate as “Africentric Learning Institute of Nova Scotia.” He noted, however, that consent from ALA/NOAEA was still required, “since their name change is less than a year old, and elements of the names are similar.” The e-mail was copied to the new Registrar, Hayley Clarke. 10 On July 13, 2007, the Registrar e-mailed Mr. Skibbens a link to a Government of Nova Scotia press release discussing the funding of ALI by the Nova Scotia Department of Education, and stated, “No wonder they were anxious to get their name sorted out.” 11 On October 5, 2007, Registry staff advised the Registrar that ALA had decided to change its name to the Society for Africentric Adult Edu- cation (“SAAE”) instead of NOAEA, which the Registrar deemed acceptable. In January of 2008, ALA changed its name to SAAE and submitted its consent for ALI to incorporate as Africentric Learning Institute of Nova Scotia. 12 ALI was incorporated as Africentric Learning Institute of Nova Sco- tia effective March 25, 2008 and has been operating in Nova Scotia since that time. On February 27, 2009, ALI registered the names “Africentric Learning Institute” and “ALI” as business names.

The Dispute 13 In 2012, a dispute arose concerning the naming of ALI. The Council on African Canadian Education (“CACE”) and ALI took the position that it should continue to operate as the Africentric Learning Institute of Nova Scotia, whereas others in the community, including some individu- Africentric Learning Institute (NS) v. Joint Stock Co. Arthur LeBlanc J. 33

als within the Nova Scotia Department of Education, were of the view that it had either already been named in honour of Mr. Delmore (Buddy) Daye or should be so named. In the summer of 2012, the Minister of Education indicated that her department would not fund ALI unless it bore Mr. Daye’s name. 14 On September 20, 2012, Paul Ash, an employee of the Department of Education, submitted a request to the Registry to change the name of ALI to “Delmore Buddy Daye Africentric Learning Institute Inc.” 15 On September 21, 2012, Dean Smith, a lawyer with the Federal De- partment of Justice, contacted Tracey Jones-Grant, a director of ALI, on behalf of DBDALI, seeking consent to the proposed name change. Ms. Jones-Grant responded by e-mail on September 24, 2012, indicating that ALI would not consent to a name change at that time. Her response was copied to the Registrar. 16 The same day, Mr. Smith sent the following e-mail to a number of individuals: As you all know, the newly appointed Board of Directors of the Delmore “Buddy” Daye Africentric Learning Institute (DBDALI) held its first official meeting on Thursday, September 21, 2012. The new Board of Directors resolved to pursue amendments to the incorporation documents of the Africentric Learning Institute of Nova Scotia as recorded by the Nova Scotia Registry of Joint Stock Com- panies to reflect the new name and list of directors and officers of the organization. You will recall my correspondence of Thursday, September 21, 2012 advising the new Board of Directors were proceeding in this manner. We indicated that we preferred to proceed in the spirit of coopera- tion, meaning we would have preferred to have the consent of the ALI Board as we moved to complete this transition. However, we have been advised this afternoon that not all of the ALI Board members share the new direction of the DBDALI Board of Directors. Therefore, we have retained the services of outside legal counsel to incorporate the Delmore “Buddy” Daye Africentric Learning Insti- tute as a separate legal entity. We anticipate this work will be completed by Friday, September 28, 2012. ... 17 On September 25, 2012, Registry employee Fancy Edwards wrote an e-mail to the Registrar stating: There seems to be some dissension among the AFRICENTRIC LEARNING INSTITUTE OF NOVA SCOTIA INC. group. I was 34 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

speaking with Tracey Jones-Grant, the author of the attached e-mail, on the telephone last week. There has been a name reservation request submitted: DELMORE BUDDY DAYE AFRICENTRIC LEARNING INSTITUTE INC. submitted as a proposed name change for AFRICENTRIC LEARNING INSTITUTE OF NOVA SCOTIA INC. by Paul Sylvester Ash. Paul Sylvester Ash is not listed as an Officer or Director of the registered company, Tracey Jones-Grant is, and has stated that this person is trying to take over and make changes that the group is not approving. Please advise on how I should proceed with the name reservation, should I reserve it with conditions that it’s for a name change only or, based on that statement in this e-mail that they are not going to approve it for name change, should I just outright reject it? 18 Two days later, Mr. Ash wrote to the Registrar concerning the status of his request to change ALI’s name: Good afternoon Haley, I submitted the Delmore “Buddy” Daye Africentric Learning Insti- tute Inc. as a name to be reserved on September 20th. We were told that it would take 2 days to complete the check and receive a response. I understand they name had been escalated to you for review. We have lawyer waiting to complete this process for us as it is a time sense manner. Could you please provide some clarification on the delay and when we can expect a response. Please contact me at ... if you have any questions. Thanks in advance. [Errors in original] 19 On September 28, 2012, Registry employee Gloria Pauls sent the following e-mail to the Registrar with the subject line, “DELMORE ‘BUDDY’ DAYE AFRICENTRIC LEARNING INSTITUTE INC. UR- GENT”: Hi Hayley Jean and I have been talking with Paul Ash from dept of Education this morning. They wish to incorporate a new Ltd by Guarantee company with the above name. Apparently there is a big rush on this. There is a conflict here somewhere and apparently from what Paul told us the board of the existing one is being taken over but the existing individuals won’t change the information on file. Because of this they were advised by their lawyers not to change the name of the existing one but to form a new one. They want the name approved so that they can tell the board the changes have been made. Africentric Learning Institute (NS) v. Joint Stock Co. Arthur LeBlanc J. 35

The name AFRICENTRIC LEARNING INSTITUTE INC. already exists. He said they are prepared to change the word AFRICENTRIC to AFROCENTRIC to make the name different but he still doesn’t understand why they can’t have the above name. I have looked on the internet and reviewed the nuans report. The name AFRICENTRIC is a type of learning as learning about history of the african people. Because of the conflict, I am not comfortable approving the name even with the Dept of Education involved. This is something should have your ok on it or not. We gave him your direct line so that he or his boss can contact you. Please advise asap how you would like for us to handle this. I did suggest to Paul that they get the documents in today or fax them to us to hold the date. That way if you ok the name we can work from there. 20 The same day, the Registry sent a letter to Mr. Ash, stating: This letter is to inform you that the name DELMORE BUDDY DAYE AFRICENTRIC LEARNING INSTITUTE INC submitted for reservation has been rejected. THE NAME REQUESTED IS IDENTICAL OR TOO SIMILAR TO A NAME OR NAMES RETRIEVED FROM THE NOVA SCOTIA DATABASE OF ACTIVE BUSINESS NAMES AND RESERVED NAMES. ... 21 After receiving this letter, Mr. Ash filed documents to incorporate an entity without the term “Africentric”, called the “Delmore Buddy Daye Learning Institute Inc.” (“DBDLI”). The incorporation of DBDLI was effective as of October 1, 2012. 22 Once DBDLI was incorporated, Mr. Ash continued his efforts to se- cure the DBDALI name that had been previously rejected by the Regis- try. On October 16, 2012, he wrote to the Registrar: Hi Hayley, I received your voice mail and thank you for your response. I was hoping that we could meet this week to discuss an organization that we have recently incorporated and would like to make a name change. I can open my schedule to any time that works for you. Thanks 36 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

23 The Registrar responded later the same day, and noted that while it was not normally her practice to meet with clients regarding a name change request, she was prepared to make an exception: Hi Paul: I am out of the office on Friday and have meetings scattered throughout tomorrow and Thursday. I could do late Thursday afternoon (2:30 or 3:00 pm), but I would need to know in advance some information about what you are seeking. Has another name request been submitted and has this request been rejected? I hope you can appreciate that this is not an issue on which I would ordinarily meet with a client given the sheer volume of name requests that come through our office in a given year, but I am prepared to do so given what I understand to be your department’s connection to this file. Any information you could provide in advance — in writing and/or by telephone — might in the end save you a trip. Please let me know. 24 Mr. Ash replied the following afternoon: Hi Hayley, Thanks for your quick response. Yes, Thursday at 2.30 pm would be great. I will come to your office at Maritime Centre. The issue is with the use of the term Afrocentric in a business name. I understand you were directly involved in a previous issue around a name and are the only person who can approve the use of the term. Looking forward to our meeting and thanks again. 25 Mr. Ash met with the Registrar on October 18, 2012 at 2:30 pm, as planned. There is no evidence before the court as to the content of the discussion that took place during the meeting. However, at 3:07 pm that afternoon, the Registrar sent an e-mail to another Registry employee advising that she would approve the name change requested by Mr. Ash. 26 On October 19, 2012, Mr. Ash submitted a business name change request to change the name of the Delmore Buddy Daye Learning Insti- tute to the Delmore Buddy Daye Africentric Learning Institute. The Reg- istrar issued a Certificate of Name Change on the same day. 27 On April 23, 2013, counsel for ALI wrote to the Registrar requesting that, pursuant to s. 16 of the Companies Act, she direct DBDALI to change its name due to its similarity to ALI. At the time of ALI’s objection, it was unaware that the Registry had originally rejected the DBDALI name on the basis that it was too similar to another registered entity. Africentric Learning Institute (NS) v. Joint Stock Co. Arthur LeBlanc J. 37

28 The Registrar issued a written decision on June 25, 2013 in which she declined to direct DBDALI to change its name, or to initiate a name dispute file. ALI filed for judicial review of the Registrar’s decision on July 31, 2013.

The Evidence 29 The Notice for Judicial Review was filed on July 31, 2013, and the Motion for Directions was scheduled or August 28, 2013. The record was filed by the Registrar on August 20, 2013. At the Motion for Direc- tions, counsel for ALI raised concerns that the record disclosed by the Registrar was incomplete. It was agreed that counsel for ALI would make a request to the Registrar for a full record, and counsel for the Reg- istrar would provide the Registrar’s position. The Motion for Directions was adjourned to September 24, 2013. 30 On September 24, 2013, counsel for ALI reiterated its position that the record was incomplete, and a hearing was set for December 5, 2013 to settle the record. 31 On November 20, 2013, ALI filed its evidence and brief in support of the December 5, 2013 hearing to fix the record. On November 29, 2013, counsel for the Registrar produced to ALI a set of documents entitled “Supplement to the Record of the Respondent Registrar of Joint Stock Companies [Documents from the Registrar’s file]”. These documents included the internal Registry e-mails concerning the conflict between ALI and DBDALI, and the e-mails exchanged between Mr. Ash and the Reg- istrar regarding their in-person meeting to discuss changing the DBDLI name. This Supplemental Record was not filed with the court. 32 Counsel for ALI maintained that the record was still incomplete, and intended to proceed to the hearing on December 5, 2003. The day before the hearing, however, the Registrar agreed to produce further documents and the parties agreed to adjourn the hearing on that basis. 33 On December 11, 2013, the Registrar produced an additional set of documents which contained a copy of the September 28, 2012 decision of the Registrar rejecting the DBDALI name because it was too similar to an existing entity. It was at this time that ALI first became aware that the DBDALI name had been previously rejected by the Registrar. 34 Counsel for the Registrar took the position that these additional materials were not before the Registrar when she made the decision under review and, for this reason, refused to file these supplemental 38 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

materials with the court as part of the official record. As a result, the hearing to settle the record was rescheduled for April 8, 2014. 35 On April 8, 2014, following agreement by the parties, the court issued an order by consent of the parties permitting ALI to file the two sets of documents as evidence outside the record, attached as exhibits to an affidavit of Tracy Jones-Grant.

Standard of Review 36 The Registrar, as an administrative decision-maker, owed ALI a duty of fairness in determining whether to direct DBDALI to change its name. The duty to act fairly includes the duty to provide procedural fairness to the parties, and “an unbiased appearance is, in itself, an essential component of procedural fairness”: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] S.C.J. No. 21 (S.C.C.) at para. 22. The demonstration of a reasonable apprehension of bias on the part of the Registrar would constitute a violation of the duty of fairness owed to ALI. Issues of procedural fairness do not attract a standard of review analysis, and must be assessed on a standard of correctness: Bowater Mersey Paper Co. v. C.E.P., Local 141, 2010 NSCA 19 (N.S. C.A.) at para. 30. 37 The parties all submit that the standard of review applicable to the Registrar’s decision is reasonableness. Although the degree of deference owed to a decision of the Registrar made pursuant to s. 16 of the Compa- nies Act has not been previously considered by our courts, the Manitoba Court of Appeal in Brian Neil Friesen Dental Corp. v. Manitoba (Director of Companies Office), 2011 MBCA 20, [2011] M.J. No. 50 (Man. C.A.) considered the appropriate standard of review for a similar decision of the Director of Companies Office. The Court concluded: 82 If we turn to previous case law, we see that courts have accepted that deference is due to the Director’s decisions. ... 83 In addition, the kind of question before the Director (i.e., are these names so similar that they are liable to be confounded?) is one which should be reviewed on the standard of reasonableness. In Dunsmuir, the court stated (at para. 53): Where the question is one of fact, discretion or policy, deference will usually apply automatically (Mossop, [[1993] 1 S.C.R. 554] at pp. 599-600; Dr. Q, at para. 29; Suresh [2002 SCC 1, [2002] 1 S.C.R. 3] at paras. 29-30). We believe that the same standard must apply to the re- Africentric Learning Institute (NS) v. Joint Stock Co. Arthur LeBlanc J. 39

view of questions where the legal and factual issues are intertwined with and cannot be readily separated. 38 This conclusion is consistent with recent Supreme Court of Canada jurisprudence. In Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 (S.C.C.), the Court summarized the categories of issues specific to each standard of review: 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). 39 In this case, the Registrar is interpreting and applying her home statute. There are no constitutional or jurisdictional issues, no conflict or overlap between two tribunals, and the question is not one of general law of central importance to the legal system and outside the Registrar’s specialized area of expertise. Accordingly, the standard of reasonableness applies to a decision by the Registrar under s. 16 of the Companies Act.

Reasonable Apprehension of Bias 40 The test for a finding of reasonable apprehension of bias is settled law, and was summarized in R. v. S. (R.D.), [1997] S.C.J. No. 84 (S.C.C.): 31 The test for reasonable apprehension of bias is that set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. Though he wrote dissenting reasons, de Grandpré J.’s articulation of the test for bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades: see, for example, Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lippé, [1991] 2 S.C.R. 114; Ruffo 40 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

v. Conseil de la magistrature, [1995] 4 S.C.R. 267. De Grandpr´e J. stated, at pp. 394-95: ... the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”. 41 The threshold for a finding of real or perceived bias is high, and the onus lies with the party alleging bias to establish its existence: R. v. S. (R.D.) supra, at para. 114. There is also a strong presumption in favour of the impartiality of an adjudicative decision maker: Canadian College of Business & Computers Inc. v. Superintendent, Under The Private Career Colleges Act, 2010 ONCA 856, [2010] O.J. No. 5435 (Ont. C.A.) at para. 27. 42 As a general rule, only material that was considered by an administrative decision-maker in coming to its decision is relevant on judicial review. However, where the applicant alleges bias or fraud, “it will almost always be necessary to have evidence which is not part of the administrative record”: D.J.M. Brown and J.M. Evans, Judicial Review of Adminis- trative Action in Canada (looseleaf), at p. 6-63. See also IMP Group International Inc. v. Nova Scotia (Attorney General), 2013 NSSC 332 (N.S. S.C.) at paras. 20-25. 43 There is no dispute that the court is entitled to consider the affidavit evidence admitted outside the record in this case when it considers the allegation of a reasonable apprehension of bias on the part of the Regis- trar. Counsel for the Registrar, however, says this evidence should be given little weight. 44 Allegations of a reasonable apprehension of bias on the part of an administrative decision-maker are often raised, but rarely made out. For the reasons that follow, I am satisfied that this is one of those rare cases in which a reasonable apprehension of bias has been established by the applicant. Africentric Learning Institute (NS) v. Joint Stock Co. Arthur LeBlanc J. 41

45 Initially, the Registry’s approach to Mr. Ash’s request to reserve the DBDALI name was consistent with its approach to ALI’s request to reserve a name containing the words “Africentric Learning.” DBDALI’s request was rejected on the basis that the name was too similar to another entity (presumably ALI), just as ALI’s request was rejected on the basis that its name was too similar to ALA. In ALI’s case, the Registrar was unwilling to permit registration of the name even with ALA’s consent, due to the risk of public confusion. It was not until ALA agreed to change its name, and provide its consent, that ALI was permitted to incorporate. No such conditions were proposed in order to permit DBDALI to register its name, presumably because the Registrar and her staff had been made aware that ALI opposed any change to its name and Mr. Ash’s group was trying to “take over” ALI’s operations. 46 The Registry’s approach changed, however, following the intervention of Mr. Ash, whom the Registrar clearly believed was acting on behalf of the Department of Education. On October 16, 2012, Mr. Ash e- mailed the Registrar to ask for a personal meeting to discuss the DBDALI name. The Registrar informed Mr. Ash that she would not ordinarily meet with a client personally to discuss a name change, but she was “prepared to do so given what I understand to be your department’s connection to this file.” In other words, the Registrar was prepared to deviate from her standard practice because of Mr. Ash’s connection with another government department. 47 Counsel for the Registrar argued that Mr. Ash did not expressly represent that he was acting in his capacity as an employee of the Depart- ment of Education when he requested a meeting. While this may be true, Mr. Ash made no attempt to correct the Registrar if she was misappre- hending the situation. Ultimately, however, it is the Registrar’s belief that Mr. Ash was acting on behalf of the Department of Education, and her conduct as a result of this belief, that is relevant for the purposes of establishing a reasonable apprehension of bias. The accuracy of her belief is not. 48 Minutes after the meeting with Mr. Ash, the Registrar reversed her previous decision to reject the DBDALI name as being too similar to an existing entity. The name change was made effective the very next day. Unlike the protocol followed when ALI incorporated, the Registrar made her decision without consulting ALI or seeking its consent. The Registrar apparently saw no need to consult ALI despite her knowledge that the 42 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

two groups were involved in a dispute and that DBDALI, according to Mr. Ash himself, was attempting to “take over” the operations of ALI. 49 Counsel for the Registrar says that the decision to allow the DBDALI name should not be characterized as a reversal of an earlier decision by the Registrar to reject the name. According to counsel, the initial decision to reject the DBDALI name was an internal or informal administrative decision made by Registry staff, not a decision of the Registrar herself. I do not accept this position. First, there was nothing internal or informal about the letter. It was prepared on Registry letterhead, signed by Fancy Edwards on behalf of the Registry, and sent to Mr. Ash. A reasonable person receiving this letter would consider it to be a formal, binding decision. 50 More importantly for the issue of bias, the only reasonable inference that can be drawn from the evidence is that the Registrar herself directed staff to reject the name reservation. On September 25, 2012, Ms. Ed- wards contacted the Registrar regarding Mr. Ash’s attempt to change the ALI name. According to Ms. Edwards, Ms. Jones-Grant told her that Mr. Ash was trying to take over and make changes to ALI that ALI was not approving. She wrote, “Please advise on how I should proceed with the name reservation, should I reserve it with conditions that it’s for a name change only or, based on that statement in this e-mail that they are not going to approve it for name change, should I just outright reject it?” 51 On September 28, 2012, Ms. Pauls, another Registry staff member, told the Registrar that she and Jean Gosling had been speaking with “Paul Sylvester Ash from the department of Education”, and “[b]ecause of the conflict, I am not comfortable approving the name even with the Dept of Education involved. This is something should [sic] have your ok on it or not.” Ms. Pauls told the Registrar that they had given Mr. Ash her direct line “so that he or his boss can contact you. Please advise asap how you would like for us to handle this.” 52 The situation was clearly unusual, and neither Ms. Edwards nor Ms. Pauls was comfortable responding to Mr. Ash’s name reservation request without explicit direction from the Registrar. For this reason, I consider the decision of September 28, 2012 rejecting the DBDALI name to be a decision of the Registrar. 53 After meeting with Mr. Ash, the Registrar reversed her own decision to reject the DBDALI name without consulting ALI on the matter or seeking its consent. Unhappy with the Registrar’s decision, ALI made a request under s. 16 of the Act that the Registrar direct DBDALI to Africentric Learning Institute (NS) v. Joint Stock Co. Arthur LeBlanc J. 43

change its name due to its similarity to ALI. The Registrar issued a written decision two months later, on June 25, 2013, in which she declined to direct DBDALI to change its name or to initiate a name dispute file. 54 In my view, considering all of the circumstances, an informed person viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the Registrar, consciously or unconsciously, would not decide ALI’s request fairly. 55 The reasonable person considering: (1) the Registrar’s comment that she was willing to deviate from normal practice and meet with Mr. Ash because of the Department of Education’s involvement in the matter, (2) her subsequent meeting with Mr. Ash, (3) her decision not to consult with or obtain the consent of ALI before deciding the issue, (4) the reversal of her previous decision shortly after the meeting, and (5) the speed with which the official Certificate of Name Change was issued to DBDALI, would be left with the impression that s. 16 of the Companies Act is applied differently by the Registry to private companies that are closely aligned with government departments than to those without such associations. 56 Having found that the Registrar’s conduct leading up to and including her decision of June 25, 2013 raised a reasonable apprehension of bias that resulted in a denial of procedural fairness to ALI, I need not consider ALI’s argument that the timing and circumstances of the Registrar’s disclosure of the record establishes a reasonable apprehension of bias. I would note, however, that a consequence of counsels’ agreement to admit the supplementary materials outside the record is that no finding has been made by this court that these materials properly form part of the record.

The Reasonableness Analysis 57 Even if I am wrong with respect to the existence of a reasonable apprehension of bias, I would quash the Registrar’s decision on the basis that it was unreasonable. 58 In New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.), the Supreme Court of Canada described “reasonableness” as follows: 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, 44 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 59 More recently, in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.), Justice Abella, for the Court, clarified that while a reviewing court is to consider both the reasoning process and the outcome, it is not to undertake two discrete analyses. Instead, “[i]t 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”: para. 14. 60 Justice Abella also emphasized that the tribunal’s reasons will not be held to a standard of perfection. The Dunsmuir criteria will be met so long as “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”: para. 16. 61 Accordingly, in assessing the reasonableness of the decision, I must consider whether the Registrar’s reasons allow me to understand why she made her decision, and whether her decision not to order DBDALI to change its name falls within the range of acceptable outcomes. 62 Before I begin reviewing the Registrar’s decision, I wish to comment on the relevance to the reasonableness analysis of the Registrar’s previous decision to reject the DBDALI name, an issue which generated considerable argument at the hearing. For the reasons that follow, I find that the Registrar’s decision was unreasonable on the basis that she applied the wrong legal test and, as a consequence, failed to properly consider all of the relevant evidence. Having come to this conclusion, I need not offer my views on whether the previous decision is relevant to the reasonableness of the decision under review. 63 The Registrar began her decision by setting out s. 16 of the Act, which prohibits registration of a company with a name that is identical to an existing registered entity, or so nearly resembling an existing regis- Africentric Learning Institute (NS) v. Joint Stock Co. Arthur LeBlanc J. 45

tered entity “as to be calculated to deceive.” She then outlined the Regis- try’s process when it receives a complaint regarding name similarity: When this office receives a complaint regarding name similarity, we review all of the elements of the name to determine whether the entire name is similar to a previously registered name. Only where there is sufficient similarity to warrant further review, is a name dispute file initiated, and the other party to the dispute contacted. At such time, each party is afforded the opportunity to present their position in writing to the Registrar before any decision would be made. A direction by the Registrar to change a name is significant, so such decisions are never taken lightly. 64 She noted that the names Delmore Buddy Daye Africentric Learning Institute and Africentric Learning Institute of Nova Scotia “are certainly not identical, nor could it be said that DBDALI is so close to ALINS as to be ‘calculated to deceive’ which is the threshold established in the legislation noted above.” 65 The Registrar rejected ALI’s argument that the language of “calculated to deceive” used in the Act should be interpreted to mean “likely to deceive”: You have suggested that the lesser threshold of “likely to deceive” is appropriate given the decision in Dorset Seafoods Ltd. v. Dorset Fisheries Ltd., a decision of the Newfoundland Supreme Court. While I do not concede this to be true in Nova Scotia, in my opinion, this lesser threshold would not be met in any event, given the several differences in these two names. While the case was not included for this purpose, I would add that the Dorset decision involved two companies having the same distinctive element in both names, in addition to the nature of their business being the very same (although using a different single term for that activity), which is quite different than in the present circumstance. 66 The Registrar then offered the following explanation for her conclusion that the names were not “confusingly” similar: The descriptive element or elements of a name are not exclusive to any one entity. Further, distinctive elements are used — as the term suggests — to distinguish. There are many organizations that could have the same descriptive elements in their registrations, but used in association with different distinctive words, are distinguishable from the others. In the present case, the names DBDALI and ALINS share the descriptive elements “Africentric Learning Institute”. The words 46 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

“Delmore Buddy Daye” and “of Nova Scotia”, respectively, serve as their distinctive elements: DELMORE BUDDY DAYE AFRICENTRIC LEARN- ING INSTITUTE INC. AFRICENTRIC LEARNING INSTITUTE OF NOVA SCOTIA INC. Of the six words in each (excluding the legal elements), three are common, leaving three which are different. While the names are therefore somewhat similar, when reviewed in their entirety, I do not believe that they are confusingly similar. 67 She went on to compare the terms “Africentric Learning Institute” to “Montessori School”: By way of an example, consider also the descriptive elements of a “Montessori School”. When searched in the Registry of Joint Stock Companies database, you will find many registrations which include these terms. However, distinctive elements surrounding this descrip- tion enable their differentiation, one from another which I believe is also true of the two names in question. 68 The Registrar concluded her decision as follows: Based on all of the foregoing, I am not prepared to direct that the name “Delmore Buddy Daye Africentric Learning Institute Inc.” be changed, nor will a name dispute file be initiated. If in the future, there is some greater evidence of actual confusion between the two registrations, we will review any evidence provided and make a determination of how best to proceed at that time. [Emphasis added] 69 The primary flaw in the Registrar’s decision is her rejection of the standard of “likely to deceive”, which she considered to be a “lesser threshold” than that of “calculated to deceive.” Section 16 of the Nova Scotia Companies Act is modeled after s. 6 of the Companies Act, 1862 (UK, 25 & 26 Vict.) c. 89, the first English statute dealing with company names, which provided that no company should be registered under a name identical to or so nearly resembling the name of an existing registered entity as to be “calculated to deceive”. The English legislation changed in 1948 so that the word “undesirable” was used instead of “calculated to deceive.” Nova Scotia and Saskatchewan are the only two provinces that continue to use the original English wording, while other provinces use variations including “likely to deceive”, “liable to be confounded with”, and “likely to confuse or mislead.” Africentric Learning Institute (NS) v. Joint Stock Co. Arthur LeBlanc J. 47

70 Neither s. 16 of the Nova Scotia Act nor s. 228(1) of the Saskatche- wan legislation, The Companies Act, RSS 1978, c C-23, has been judicially considered. However, in Dorset Seafoods Ltd. v. Dorset Fisheries Ltd., 1987 CarswellNfld 62 (Nfld. T.D.), the Newfoundland Supreme Court considered s. 22 of the Companies Act, RSN 1970, c. 54, which, at that time, prohibited registration of a name so nearly resembling that of a subsisting company “as to be calculated to deceive.” 71 The plaintiff in that case argued that because the legislation used the English wording, the court should not apply the reasoning in CC Chemicals Ltd., Re, [1967] 2 O.R. 248, 1967 CarswellOnt 37 (Ont. C.A.) and Canadian Motorways Ltd. v. Laidlaw Motorways Ltd. (1973), [1974] S.C.R. 675 (S.C.C.), authorities the plaintiff said were applicable only where the statute used the language of “likely to deceive.” According to the plaintiff, the court should follow the English authorities which applied a “passing off” test in name similarity conflicts, an approach that was rejected in CC Chemicals and Cdn. Motorways. Under the passing off test, the first company must demonstrate that the second company’s use of a similar name was calculated to lead other people to believe that it was actually the first company. 72 Rejecting the plaintiff’s argument, Russell, J. noted that the English statute did not give the registrar the right to direct the second company to change its name, and there was no right of review by the court. As a result, the only option available if the first company objected to the registration of the second company was to apply for an injunction against the second company, which was known as the “passing off action.” In order to succeed, the plaintiff in a passing off action had to prove that the second company’s use of the similar name would lead members of the public to believe it was doing business with the first company, thereby allowing the second company to take advantage of the first company’s goodwill. 73 Russell, J. explained that under the Newfoundland Companies Act, however, the first company was not limited to a passing off action, but could instead apply to the registrar to direct the second company to change its name. Unlike in a passing off action, the prior registration of the first company was a relevant factor. The registrar’s decision was then reviewable by the court if challenged by the second company. Conse- quently, the passing off test was not applicable to the situation before the court. 48 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

74 In Russell, J.’s view, the test in CC Chemicals applied, notwithstand- ing the differences in legislative language: 34 In North Cheshire & Manchester Brewery Co. v Manchester Brewery Co., [1899] A.C. 83 (H.L.), Lord Halsbury at p. 84 stated that the real question in dealing with “calculated to deceive” is: Is the name so nearly resembling the name of another firm as to be likely to deceive? (emphasis added) 35 Most, if not all, of the legislation in other Canadian jurisdictions use the wording “likely to deceive”. In view of this I am satisfied that the test found to be applicable to legislation using the words “likely to deceive”, is equally applicable to this matter. 75 In CC Chemicals, Kelly, JA, for the Court, held that the test of “likely to deceive” means that deception is probable, not possible. The determination of a probability of deception would be based on the following factors: 38 The relevant facts which it is appropriate for the Provincial Secre- tary to seek and to consider when deciding whether to grant a name would be: (a) the name of any corporation, association, partnership, individual or business with respect to which similarity might be found; (b) the nature of the business with which that name was then associated; (c) the persons or class of person who ordinarily might be expected to deal with the above-named corporation, association, partnership, individual or business; (d) the name sought by the applicants for incorporation; (e) the objects for which incorporation is sought; (f) any additional business activities which the applicants may have in mind beyond the actual objects set out in the application; (g) the persons or class of person who might ordinarily be expected to deal with the corporation sought to be incorporated. 39 Approached in the light of the awareness of the foregoing information, the Provincial Secretary must then make a decision as to whether the visual and auditory qualities of the two names are so similar that the use of the proposed name by the corporation to be Africentric Learning Institute (NS) v. Joint Stock Co. Arthur LeBlanc J. 49

incorporated is likely to deceive those members of the public who are dealing or may wish to deal with the existing name holder. 76 In Canadian Motorways, a decision of the Supreme Court of Canada, the majority approved of the test applied in CC Chemicals, but held that it did not apply in the circumstances before it. In Canadian Motorways, the issue was not whether one company was likely to be confused with another by members of the public; it was whether the public was likely to believe that the two companies were associated with one another, even though no such association existed. 77 In my view, as this is a case where the concern is that one company will be confused with the other, the Registrar was required to consider contextual factors like those identified in CC Chemicals when deciding whether to direct DBDALI to change its name. 78 Instead of considering these factors, the Registrar rejected the case law cited by ALI and purported to apply what she considered to be the more stringent threshold of “calculated to deceive”, without applying any principles of statutory interpretation or citing any authority that would give content to that standard. What is the test for determining whether a name is calculated to deceive, and how was that test applied in this case? The decision discloses no clear answers. 79 The Registrar limited her analysis to a purely textual comparison of the names DBDALI and ALI, and noted that while she was unwilling to direct DBDALI to change its name, she would be open to reconsidering her decision “[i]f in the future, there is some greater evidence of actual confusion between the two registrations.” This comment implies that the Registrar’s standard requires evidence of actual confusion, which is contrary to the jurisprudence. 80 The analysis conducted by the Registrar is superficial and unreasonable. She dismissed the Dorset decision without consideration of its analysis of the appropriate test, and applied a standard that apparently requires a greater than 50% tally of identical words in the business names, and evidence of actual deception. She evidently did not consider the test under s. 16 to include the contextual factors identified CC Chemicals and adopted by the court in Dorset, or indeed, any contextual factors at all. 81 According to the test in CC Chemicals, before undertaking a textual analysis of the two names, the Registrar must consider the broader context in which the companies operate or intend to operate, including the nature of the business, the objects for which incorporation is sought, and the persons or persons who might ordinarily be expected to deal with the 50 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

companies in question. Only then may she proceed to an analysis of the visual and auditory aspects of the names, “in light of the awareness of the foregoing information.” 82 There are a number of contextual factors that would have informed the Registrar’s textual analysis of the DBDALI and ALI names that were either referenced in ALI’s submissions to the Registrar or were within her knowledge through her involvement with the incorporation of both companies. These include: (1) ALI has been offering its services to the African Nova Scotian community since its incorporation in 2008; (2) A pre-existing conflict existed between ALI and DBDALI regarding the use of the ALI name; (3) Paul Ash of the Department of Education, neither an officer nor a director of ALI, attempted to change ALI’s name to DBDALI without its consent; (4) The incorporators of DBDALI created that entity for the express purpose of “taking over” the province’s only Africentric Learning Institute because ALI would not consent to a name change; (5) Both companies are purporting to provide the same services to the same community; (6) Both companies are holding themselves out as the “Afrocentric Learning Institute” incorporated by CACE, as contemplated by s. 43(h) of the Ministerial Education Act Regulations enacted under the Education Act, SNS 1995-96, c 1. 83 If the Registrar had considered these contextual factors when per- forming the textual analysis to determine whether there was a probability of deception, the only reasonable conclusion would have been that there was. Having failed to apply the correct test and consider the appropriate contextual factors, the Registrar’s decision must be quashed as unreasonable.

Remedy 84 The parties all agree that the ordinary remedy on an application for judicial review is to quash the administrative decision-maker’s decision and remit the matter back for reconsideration. Where the court has found a reasonable apprehension of bias, the decision is normally remitted to a different decision-maker. In the unique circumstances of this case, however, where a reasonable apprehension of bias has been found on the part Africentric Learning Institute (NS) v. Joint Stock Co. Arthur LeBlanc J. 51

of the Registrar, and there is no alternate decision-maker available to re- consider the decision, this remedy is clearly inappropriate. 85 In Giguère c. Chambre des notaires du Québec, 2004 SCC 1, [2004] S.C.J. No. 5 (S.C.C.), Deschamps, J., in dissent, though not on this point, stated: 65 Consequently, once it has been determined that an administrative tribunal has exceeded its jurisdiction by rendering an unreasonable decision on a matter within its jurisdiction, the case must, in theory, be sent back to it ... 66 A court of law may not substitute its decision for that of an administrative decision-maker lightly or arbitrarily. It must have serious grounds for doing so. A court of law may render a decision on the merits if returning the case to the administrative tribunal would be pointless: Guindon, supra; Guilde, supra. Such is also the case when, once an illegality has been corrected, the administrative decision-maker’s jurisdiction has no foundation in law: Guilde, supra. The courts may also intervene in cases where, in light of the circumstances and the evidence in the record, only one interpretation or solution is possible, that is, where any other interpretation or solution would be unreasonable: Matane (Ville de) v. Fraternité des policiers et pompiers de la Ville de Matane inc., [1987] R.J.Q. 315 (C.A.). It is also accepted that a case may not be sent back to the competent authority if it is no longer fit to act, such as in cases where there is a reasonable apprehension of bias: Guindon, supra; Ordre des audi- oprothésistes du Québec v. Chanteur, [1996] R.J.Q. 539 (C.A.); Transformateurs Philips, supra; Guilde, supra. See also Telus Communications Inc. and TWU (Underwood), Re, 2014 ABCA 199, [2014] A.J. No. 630 (Alta. C.A.) at paras. 35-36; Pictou Landing Band Council v. Canada (Attorney General), 2013 FC 342, [2013] F.C.J. No. 367 (F.C.) at para. 119. 86 In light of the court’s finding of a reasonable apprehension of bias in this case, the Registrar is no longer fit to act. In addition, returning the case to the decision-maker would be pointless, because only one interpretation or solution is possible when the proper test is applied. Accord- ingly, I decline to remit the matter back to the Registrar. Instead, I will grant an order under Rule 7.11(c) requiring the Registrar to direct DBDALI to change its name. 52 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Conclusion 87 The judicial review application is allowed. The Registrar’s decision is quashed on the basis of a reasonable apprehension of bias. This court orders the Registrar to direct DBDALI to change its name, with the change of name to be completed within 60 days of this decision. 88 Should the parties be unable to agree on costs, I will accept written submissions within 30 days of the release of this decision. Application granted. Metro Toronto Apt. Builders Assn. v. LIUNA, Local 183 53

[Indexed as: Metropolitan Toronto Apartment Builders Assn. v. LIUNA, Local 183] Metropolitan Toronto Apartment Builders Association, Durham Residential Construction Labour Bureau and Toronto Residential Construction Labour Bureau, Applicants (responding parties on motion and moving parties on cross-motion) and Labourers’ International Union of North America, Local 183, Respondent (moving party on motion and responding party on cross-motion) Ontario Superior Court of Justice (Divisional Court) Docket: Toronto 52/14 2014 ONSC 4976 Nordheimer J. Heard: August 25, 2014 Judgment: August 27, 2014 Labour and employment law –––– Labour law — Labour arbitrations — Judicial review — Procedure –––– Affidavits — Union and employers’ association were in collective bargaining relationship — Parties agreed on arbitration of issues relating to renewal of collective agreement — Prior to commencement of arbitration process, association sought and received advisory opinion from Competition Bureau as to whether provisions in collective agreement were contrary to Competition Act — Association included in issues to be determined by arbitrator their request to have certain subcontracting and cross-over provisions deleted from collective agreement on basis that provisions were illegal because they violated Act — Union raised preliminary objection to jurisdiction of arbitrator to consider those issues — Arbitrator determined that he had jurisdiction to determine issues relating to Act but he shared that jurisdiction with Competi- tion Tribunal — Arbitrator deferred deciding those issues in favour of any consideration and determination tribunal would make — Association applied for judicial review — Union brought motion to strike out affidavit filed by association — Association brought cross-motion to strike out portions of affidavit filed by union — Motion granted; cross-motion granted in part — Use of affidavits on judicial review applications was permissible only in narrow and limited circumstances — First part of affidavit filed by association attempted to add to or expand upon facts that were before arbitrator, which was improper on review — Second part of affidavit was argument that could properly be part of factum and not properly advanced as evidence through affidavit — With respect to union’s affidavit, any communications between parties and arbitrator should form part of record — Submissions of parties before arbitrator had no role to 54 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

play in judicial review application and should not be part of record — It was not clear that competition documents were so clearly irrelevant that they should not form part of record. Cases considered by Nordheimer J.: Canada (Commissioner of Competition) v. Chatr Wireless Inc. (2011), 2011 ONSC 3387, 2011 CarswellOnt 4451, [2011] O.J. No. 2513 (Ont. S.C.J.) — followed Endicott v. Ontario (Director, Office of the Independent Police Review) (2014), 2014 CarswellOnt 5857, 2014 ONCA 363, 373 D.L.R. (4th) 149, [2014] O.J. No. 2189 (Ont. C.A.) — followed GasTOPS Ltd. v. Forsyth (2011), 280 O.A.C. 141, 12 C.P.C. (7th) 116, 2011 CarswellOnt 1328, 2011 ONCA 186, [2011] O.J. No. 979 (Ont. C.A. [In Chambers]) — followed Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CarswellOnt 762, 114 D.L.R. (3d) 162, 29 O.R. (2d) 513, [1980] O.J. No. 3691 (Ont. C.A.) — followed Lederer v. 372116 Ontario Ltd. (2000), 50 O.R. (3d) 282, 48 C.P.C. (4th) 110, 2000 CarswellOnt 2812, [2000] O.J. No. 3000 (Ont. S.C.J. [Commercial List]) — followed R. v. Northumberland Compensation Appeal Tribunal (1951), [1952] 1 K.B. 338, [1952] 1 All E.R. 122 (Eng. C.A.) — followed Sierra Club of Canada v. Canada (Minister of Finance) (2002), 287 N.R. 203, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada) 18 C.P.R. (4th) 1, 44 C.E.L.R. (N.S.) 161, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada) 211 D.L.R. (4th) 193, 223 F.T.R. 137 (note), 20 C.P.C. (5th) 1, 40 Admin. L.R. (3d) 1, 2002 SCC 41, 2002 CarswellNat 822, 2002 CarswellNat 823, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada) 93 C.R.R. (2d) 219, [2002] 2 S.C.R. 522, [2002] S.C.J. No. 42, REJB 2002-30902 (S.C.C.) — followed 142445 Ontario Ltd. v. I.B.E.W., Local 636 (2009), (sub nom. 142445 Ontario Ltd. v. International Brotherhood of Electrical Workers, Local 636) 251 O.A.C. 62, 95 Admin. L.R. (4th) 273, 2009 CarswellOnt 2701, [2009] O.J. No. 2011 (Ont. Div. Ct.) — followed Statutes considered: Competition Act, R.S.C. 1985, c. C-34 Generally — referred to s. 45 — considered Judicial Review Procedure Act, R.S.O. 1990, c. J.1 Generally — referred to Metro Toronto Apt. Builders Assn. v. LIUNA, Local 183 Nordheimer J. 55

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 s. 20 — considered

MOTION by union to strike out affidavit; MOTION by employers’ association to strike out portion of affidavit.

S. Crawford, D. Chondon, for Applicants C. Paliare, for Respondent

Nordheimer J.:

1 On this motion, the moving party, Labourers’ International Union of North America, Local 183, seeks to strike out an affidavit filed on an application for judicial review brought by the responding parties with respect to an interim award made by a labour arbitrator. The responding parties, in turn, bring a cross-motion to strike out certain portions of an affidavit filed by the moving party on the same judicial review application. Included in the issues raised by these motions is the question whether certain documents, belonging to the responding parties, should only be filed with the court if they are subject to a confidentiality order. In an effort to avoid confusion, I will hereafter refer to the moving party as LIUNA and the responding parties collectively as MTAPBA.

Background 2 MTAPBA are in a collective bargaining relationship with LIUNA. That collective bargaining process is the subject of a letter of understanding that provides for arbitration of issues relating to the renewal of the collective agreements. The parties agreed on an arbitrator for this purpose. 3 Prior to the commencement of that arbitration process, MTAPBA sought an advisory opinion from the Competition Bureau as to whether certain existing provisions in the collective agreements, and some proposed new provisions, were contrary to the Competition Act, R.S.C. 1985, c. C-34. The Competition Bureau provided an advisory opinion based on the information that had been provided by MTAPBA to the Bureau. 4 Presumably as a result of having obtained that advisory opinion, MTAPBA included in the issues to be determined by the Arbitrator their request to have certain subcontracting and cross-over provisions deleted 56 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

from the collective agreements on the basis that the provisions were illegal because they violated various provisions of the Competition Act. 5 LIUNA raised a preliminary objection to the jurisdiction of the Arbi- trator to consider the issue of these disputed provisions. LIUNA con- tended that only the courts could determine any violation of s. 45 of the Competition Act (one of the sections that MTAPBA was relying on) and, in the alternative, if the Arbitrator did have jurisdiction, it was a shared jurisdiction with the Competition Tribunal and that the Arbitrator should defer to that tribunal to determine any such issues. The Arbitrator decided that he would deal with the jurisdiction question first, as a separate issue, before embarking on his consideration of the other issues raised in the arbitration. 6 After conducting a hearing and dealing with other associated matters relating to the jurisdiction issue, the Arbitrator released his decision on the jurisdiction issue on December 5, 2013. The Arbitrator determined that, while he did have jurisdiction to determine the issues raised by MTAPBA relating to the Competition Act, he shared that jurisdiction with the Competition Tribunal and, in the particular circumstances of this case, he was going to defer deciding those issues in favour of any consideration and determination that the Tribunal would make. 7 MTAPBA now seeks judicial review of that decision by the Arbitrator.

LIUNA’s motion to strike 8 On the judicial review application, MTAPBA has filed the affidavit of Steve Szentesi, a lawyer who has been assisting them with the competition issues. The affidavit can be broken down into two parts. The first part, that includes the first nine paragraphs, detail what the parties did in preparation for the hearing before the Arbitrator including the obtaining of the advisory opinion, the filing of extensive written submissions and the raising of the jurisdiction issue by LIUNA. The affidavit also states that there were no proceedings currently ongoing in the courts or before the Competition Tribunal and that no witnesses were called before the Arbitrator on the jurisdiction issue. The second part of the affidavit, that includes the remaining seven paragraphs, can fairly be described as reiterating arguments that MTAPBA made before the Arbitrator. 9 Both this motion and the cross-motion raise the issue as to what properly constitutes the record when a judicial review application is brought from a decision of an administrative tribunal or an arbitrator. That issue Metro Toronto Apt. Builders Assn. v. LIUNA, Local 183 Nordheimer J. 57

has been the subject of a number of decisions. It is also partly addressed by statute. 10 Starting with what is or is not provided for by statute on this subject, the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 does not set out what needs to be included in the record. The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 does provide, in s. 20, the minimum requirements for a record but it is agreed that the SPPA does not apply to proceedings before a labour arbitrator. The issue thus becomes what does the common law say, if anything, as to what constitutes the record. 11 In R. v. Northumberland Compensation Appeal Tribunal (1951), [1952] 1 K.B. 338 (Eng. C.A.), Denning L.J. said, at pp. 351-352: ... throughout all the cases there is one governing rule: Certiorari is only available to quash a decision for error of law if the error appears on the face of the record. What, then, is the record? It has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings ... I think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision 12 It is, of course, expected nowadays in most administrative law proceedings that reasons will be given. Consequently, following on the observations of Denning L.J., on a judicial review application from a labour arbitrator, the record would normally include, at a minimum, the notice of hearing, the decision and the reasons. There are no pleadings in such proceedings so that requirement does not arise. However, in some past cases, parties have also included affidavits as part of the record. An issue then arose as to whether it was proper for affidavits to form part of the record. 13 In Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (Ont. C.A.), Morden J.A. had the following to say on the subject of including affidavits as part of the record: Having just completed the exercise of examining, in this fashion, the evidence that was before the arbitrator I would express the view, which is in agreement with that of Pennell, J., that the practice of admitting affidavits of this kind should be very exceptional, it being emphasized that they are admissible only to the extent that they show jurisdictional error. I would think that the occasions for the legitimate use of affidavit evidence to demonstrate the exacting jurisdictional 58 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

test of a complete absence of evidence on an essential point would, indeed, be rare. 14 This issue was further addressed in 142445 Ontario Ltd. v. I.B.E.W., Local 636, [2009] O.J. No. 2011 (Ont. Div. Ct.) [hereinafter Kingston]. After referring to the decision in Keeprite, Swinton J. summarized the state of the law on the use of affidavits in a judicial review application in the following way, at para. 18: The Keeprite standard for the admission of affidavit evidence on judicial review has been applied in numerous decisions involving labour boards and labour arbitrators. These cases have held that affidavit evidence can be admitted either to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by a mere reference to the record. 15 Lastly on this point, I refer to the recent decision in Endicott v. Ontario (Director, Office of the Independent Police Review), [2014] O.J. No. 2189 (Ont. C.A.). In that case, the Court of Appeal held that the contents of the record will vary depending on the nature of the decision and the nature of the decision-maker. In so concluding, Rouleau J.A. said, at para. 40: It would seem reasonable to conclude that, depending on the decision-maker and the type of decision made, the contents of such a record will be substantially different. 16 It would seem to follow, therefore, that no hard and fast rule can be laid down as to what properly constitutes the record in any given judicial review application. However, based on the decisions in Keeprite and Kingston, it is clear that the use of affidavits on judicial review applications is only permissible in narrow and limited circumstances. They are restricted, in essence, to situations where there is an argument to be advanced that the decision maker acted without jurisdiction or there is an allegation of a breach of natural justice. The latter does not arise in this case nor, in my view, does the former. It is not suggested, nor was it argued before the Arbitrator, that only the Arbitrator could decide the competition issues. To the contrary, MTAPBA clearly acknowledged that there was overlapping jurisdiction but submitted that the Arbitrator should exercise his jurisdiction in this case. I would add that, even if MTAPBA had suggested that the Arbitrator had sole and exclusive jurisdiction to decide the issue, and that he improperly failed to exercise that jurisdiction, the contents of the Szentesi affidavit do not actually address that issue. Metro Toronto Apt. Builders Assn. v. LIUNA, Local 183 Nordheimer J. 59

17 With those principles in mind, I have no difficulty in concluding that the Szentesi affidavit should not be included as part of the record for the judicial review application. The first part of the affidavit attempts to add to, or expand upon, the facts that were before the Arbitrator which is improper on a review. The second part of the affidavit is nothing more than argument that may be properly part of a party’s factum but is not properly advanced as evidence through an affidavit. 18 The Szentesi affidavit is therefore struck out.

MTAPBA’s cross-motion to strike 19 LIUNA has also filed an affidavit on the judicial review application. In this instance, it is an affidavit of Sanja Bistricki, a legal assistant to one of the lawyers acting for LIUNA. MTAPBA moves to strike out a number of parts of that affidavit, specifically, a number of the exhibits attached to it. The impugned portions of that affidavit can be broken down into three parts: (i) the competition documents; (ii) the submissions of the parties and (iii) various communications between counsel and the Arbitrator. 20 Dealing with those parts in reverse order, in my view, any communications between the parties and the person whose decision is being reviewed ought normally to form part of the record, whether on a judicial review application or on an appeal. The parties might agree that some communications are unnecessary for the review given the issues raised but, absent any agreement, it seems to me that any such communications ought properly to be placed before the reviewing court. It can never be known with certainty whether any issue is going to arise in terms of what the parties communicated to the decision maker or vice versa. Given the importance of what the decision maker may have been told by the parties, and what the decision maker may have said to the parties, all of this having occurred outside of the formal hearing, any such communications should form part of the record. I would add that, given that communications between the parties and the decision maker outside of the formal hearing are presumptively inappropriate, it would be expected that this situation should rarely arise. 21 The submissions of the parties before the Arbitrator have no role to play in the judicial review application and ought not to be part of the record for the same reasons as I set out above in relation to the second part of the Szentesi affidavit. The parties can make their submissions to the court through their facta. What they did or did not submit before the 60 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Arbitrator is, except in very rare circumstances, of no relevance. I should add, in fairness, that counsel for LIUNA did not press for this material to be retained. 22 As a consequence, Exhibits K, L, M and P of the Bistricki affidavit are struck out. 23 Lastly are what I have referred to as the competition documents. These include the submission letters made by MTAPBA to the Competi- tion Bureau and the resulting advisory opinion. MTAPBA submits that these documents are irrelevant but, if the court disagrees with that position, that the documents should only be filed with the court under the restrictions of confidentiality order. 24 It is not clear to me that the competition documents are so clearly irrelevant that they should not form part of the record on the judicial review application. These documents were provided to the Arbitrator. There is nothing in the decision of the Arbitrator that makes it clear whether he did, or did not, consider these documents in reaching his conclusion. It is to be remembered, however, that the Arbitrator decided to defer his consideration of the competition issues in favour of having those issues decided by the Competition Tribunal. He gave a number of reasons for reaching that conclusion including that the central issue raised was one of competition law not labour law; that the issues raised questions of market definition and market effects that the Competition Tribunal has particular expertise in determining; that some of the issues raised by MTAPBA were novel and would be better decided in the first instance by the Competition Tribunal and that the questions raised by MTAPBA had ramifications beyond just the parties to the arbitration and thus were more appropriately determined by the Competition Tribunal. 25 It would not be a surprise if, in formulating his reasons and his conclusion, the Arbitrator reviewed what MTAPBA had communicated to the Competition Bureau and what the Competition Bureau had opined in response. Indeed, it would be surprising if he had not. Consequently, in- sofar as the Arbitrator may have looked at this material in reaching his conclusions, it may become necessary for the panel hearing the judicial review to also look at this material. At least, it cannot be clearly said that that is not a possibility. The fact that the documents were not marked as formal exhibits does not change that analysis. It remains the fact that the documents were given to the Arbitrator and he may have reviewed them in coming to his decision. It seems to me that, in those circumstances, Metro Toronto Apt. Builders Assn. v. LIUNA, Local 183 Nordheimer J. 61

that material should properly form part of the record on the judicial review application.

Confidentiality order 26 That conclusion then raises the issue whether MTAPBA should be granted a confidentiality order over the competition documents with the effect that they would not form part of the public record. 27 MTAPBA does not dispute that, in order to obtain a confidentiality order, they must meet the test set out in Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522 (S.C.C.). In that case, Iacobucci J. set out a two-part test for the granting of a confidentiality order. He said, at para. 53: A confidentiality order under Rule 151 should only be granted when: (a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings. 28 The decision in Sierra Club stresses that confidentiality orders are not the norm. Rather, they are very much the exception to the central principle that proceedings in court are open and public. While recognizing that there may be instances where there is a sufficiently important commercial interest at stake that would require a departure from the open court rule, Iacobucci J. made it clear that the threshold for finding such a sufficiently important commercial interest is a high one. On that point, he said, at para. 55: In order to qualify as an “important commercial interest”, the interest in question cannot merely be specific to the party requesting the order; the interest must be one which can be expressed in terms of a public interest in confidentiality. For example, a private company could not argue simply that the existence of a particular contract should not be made public because to do so would cause the company to lose business, thus harming its commercial interests. 29 In this case, MTAPBA says that there are two essential public interests that a confidentiality order would protect. One is against the threat of premature litigation that might arise if the contents of the documents 62 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

were revealed and the other is the interest in promoting and protecting the confidential nature of the process by which persons can obtain advisory opinions from the Competition Bureau. 30 In support of their position, MTAPBA refers to two decisions in particular. One is GasTOPS Ltd. v. Forsyth, [2011] O.J. No. 979 (Ont. C.A. [In Chambers]) where Juriansz J.A. granted a confidentiality order over certain exhibits that formed part of the record on appeal. I note that in that case, however, that the documents were described as involving: ... intellectual property, information connected to national defence and subject matter over which third parties have required secrecy in their commercial dealings with GasTOPS. (para. 17) 31 The other case is Canada (Commissioner of Competition) v. Chatr Wireless Inc., [2011] O.J. No. 2513 (Ont. S.C.J.). That case involved a proceeding under the Competition Act. The Commissioner of Competi- tion sought a confidentiality order over what was described as “commer- cially sensitive” information. In that case, it appears that the information sought to be kept confidential was financial information belonging to competitors of the company who was the subject of the proceeding. In the end result, Marrocco J. concluded that some of the information would not be the subject of a confidentiality order but that other information (notably financial information) would be. 32 In my view, neither of these cases greatly assists MTAPBA in their position. First, the material under consideration in GasTOPS is fundamentally of a different kind than is at issue here. Nor is it suggested in this case that there is confidential financial information at stake as was the case in Chatr I appreciate that there is a desire to protect the confidential process by which persons can obtain advisory opinions from the Competition Bureau. However, if that objective was of such a pressing concern that the Competition Bureau wanted to ensure that any such advisory opinions would for all purposes be protected from disclosure, that result could have been provided for in the Competition Act as it is in other statutes. However, the Competition Act does not so provide. That reason alone is not sufficient to displace the principle of the openness of courts especially when it is the company who obtained the opinion that has chosen to bring the matter before the court. 33 In terms of the risk of litigation, I have been referred to my earlier decision in Lederer v. 372116 Ontario Ltd. (2000), 50 O.R. (3d) 282 Metro Toronto Apt. Builders Assn. v. LIUNA, Local 183 Nordheimer J. 63

(Ont. S.C.J. [Commercial List]) where I addressed the same issue, albeit in a different context. In that case, I said, at para. 32: It is not uncommon for the launching of one action to be the genesis for the launching of other actions. Class actions are only the most recent example of proceedings that frequently have this result. To suggest that the potential for that result could form the basis for an order to seal the court file from public view would seem to me to establish a very serious precedent. If so, it is one that I am not prepared to run the risk of setting. 34 The same point can be made here. MTAPBA has chosen to raise this issue, first with the Competition Bureau and then in the arbitration. MTAPBA now wishes to continue to explore the issue before this court. I see no compelling reason why MTAPBA should be protected from any consequences that may arise from that chosen course of action through the granting of a confidentiality order. That is not, in my view, the type of important commercial interest that the decision in Sierra Club was intended to protect. I would add that it is not obvious to me what conse- quential litigation would arise from any public access to this material in any event. 35 Rather, what appears to be at issue here is the private commercial interest of MTAPBA in keeping their communications with the Competi- tion Bureau, and the Competition Bureau’s response, private while, at the same time, seeking to litigate the results of those communications. In those circumstances, I am not persuaded that the exceptional relief of a confidentiality order ought to be granted.

Conclusion 36 The motion by LIUNA to strike the Szentesi affidavit is granted and the affidavit is struck out. The motion by MTAPBA to strike out various exhibits from the Bistricki affidavit is granted but only in respect of Ex- hibits K, L, M and P. That motion is otherwise dismissed. 37 In terms of costs, while the result is arguably mixed, LIUNA has been considerably more successful in its part of these motions than has MTAPBA. I therefore order MTAPBA to pay to LIUNA the costs of these motions that I fix in the amount of $7,500 inclusive of disbursements and HST. 64 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

38 Finally, I direct the parties to take the necessary steps to ensure that the record in the Divisional Court is amended so that it complies with the terms of these reasons. Motion granted; cross-motion granted in part. TWU v. Nova Scotia Barristers’ Society 65

[Indexed as: Trinity Western University v. Nova Scotia Barristers’ Society] Trinity Western University and Brayden Volkenant, Applicants v. Nova Scotia Barristers’ Society, Respondent and Justice Centre for Constitutional Freedoms, The Association for Reformed Political Action, The Evangelical Fellowship of Canada and Christian Higher Education Canada, The Attorney General of Canada, The Catholic Civil Rights League and Faith and Freedom Alliance, The Christian Legal Fellowship, The Canadian Council of Christian Charities, The Nova Scotia Human Rights Commission, Intervenors Nova Scotia Supreme Court Docket: Hfx. 427840 2015 NSSC 25 Jamie S. Campbell J. Heard: December 16-19, 2014 Judgment: January 28, 2015* Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Freedom of conscience and religion –––– University was founded as religious community, primarily serving evangelical Christian community — University wished to create its own private law school, which required all students to sign community covenant, banning all sexual intimacy outside traditional marriage between woman and man — Council of Nova Sco- tia Barristers’ Society was responsible for governance and regulation of legal profession in public interest according to Legal Profession Act — Council voted to recognize law degrees to be granted by proposed law school only if institution changed its policy on community covenant — Council found that by requiring prospective students to sign contract that contained discriminatory statements and by threatening discipline in event of violation, TWU exceeded bounds of religious freedom — University brought application for judicial review — Ap- plication granted — There was no doubt that beliefs held by evangelical Chris- tians were sincere, which included belief in sanctity of traditional marriage between man and woman — If it was sincerely held religious belief that learning in environment where religiously motivated codes of conduct were uniformly

*A corrigendum issued by the Court on February 6, 2015, has been incorporated herein. 66 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

enforced, making such code optional rendered it no longer code of conduct, which was not trivial or insubstantial impact — Council’s action was not rationally connected to objective of redressing systemic discrimination in profession — In terms of minimal impairment, council’s action was not designed to minimally impair freedom of religion and rather, pointed to illogic of its position — In terms of proportionate effect, council’s action did nothing to prevent single person from being subject of any discriminatory action in relation to legal profession. Constitutional law –––– Charter of Rights and Freedoms — Nature of rights and freedoms — Equality rights — Miscellaneous –––– University wished to create its own private law school, which required all students to sign community covenant, banning all sexual intimacy outside traditional marriage between woman and man — Council of Nova Scotia Barristers’ Society voted to recognize law degrees to be granted by proposed law school only if institution changed its policy on community covenant — University brought application for judicial review — Application granted — Value of statement of principle made by refusing to recognize university law degrees was not proportional to direct and substantial impact on freedom of religion — Council acted unreasonably by failing to properly or adequately consider Canadian Charter of Rights and Freedoms rights in making decision to refuse law degrees and in passing regulation that placed resolution in effect — Decision in TWU v BCCT was not overtaken by other developments and was not expression of outdated concepts; equality rights did not jump queue to now trump religious freedom. Administrative law –––– Review for lack or excess of jurisdiction — Miscel- laneous –––– University wished to create its own private law school, which required all students to sign community covenant, banning all sexual intimacy outside traditional marriage between woman and man — Council of Nova Sco- tia Barristers’ Society voted to recognize law degrees to be granted by proposed law school only if institution changed its policy on community covenant — Council found that by requiring prospective students to sign contract that contained discriminatory statements and by threatening discipline in event of violation, TWU exceeded bounds of religious freedom — University brought application for judicial review — Application granted — Council could only legally do what it had been given power to do by legislation under Legal Profession Act to regulate practice of law — Council could not pass regulation requiring university to change its community covenant any more than it could pass regulation purporting to dictate what professors should be granted tenure — Even if council had authority, it did not exercise it in way that reasonably considered concerns for religious freedom and liberty of conscience. Administrative law –––– Standard of review — Reasonableness — Reasona- bleness simpliciter –––– University wished to create its own private law school, which required all students to sign community covenant, banning all sexual inti- TWU v. Nova Scotia Barristers’ Society 67 macy outside traditional marriage between woman and man — Council of Nova Scotia Barristers’ Society voted to recognize law degrees to be granted by proposed law school only if institution changed its policy on community covenant — Council found that by requiring prospective students to sign contract that contained discriminatory statements and by threatening discipline in event of violation, TWU exceeded bounds of religious freedom — University brought application for judicial review — Application granted — With respect to nature of question, there were potentially far-reaching legal implications arising from resolution of this matter — However, council was governing body of self-regulating profession, entitled to deference — Whether council’s decision was one that it had authority to make was not question that was of broad application beyond parties to this case, it was matter of interpretation of Legal Profession Act — In applying reasonableness standard, if council properly balanced Cana- dian Charter of Rights and Freedoms considerations, within margin of appreciation, its decision would be found to be reasonable. Cases considered by Jamie S. Campbell J.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 339 D.L.R. (4th) 428, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 2011 SCC 61, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, 52 Alta. L.R. (5th) 1, 28 Admin. L.R. (5th) 177, [2012] 2 W.W.R. 434, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commis- sioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1, [2011] S.C.J. No. 61 (S.C.C.) — referred to Bedford v. Canada (Attorney General) (2013), 2013 CarswellOnt 17681, 2013 CarswellOnt 17682, 303 C.C.C. (3d) 146, 366 D.L.R. (4th) 237, 452 N.R. 1, (sub nom. Canada (Attorney General) v. Bedford) [2013] 3 S.C.R. 1101, (sub nom. Canada (Attorney General) v. Bedford) 297 C.R.R. (2d) 334, 2013 SCC 72, 7 C.R. (7th) 1, 312 O.A.C. 53, [2013] S.C.J. No. 72 (S.C.C.) — referred to Canada (Attorney General) v. Mowat (2011), 93 C.C.E.L. (3d) 1, D.T.E. 2011T- 708, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1, (sub nom. Canada (Human Rights Comm.) v. Canada (Attorney General)) 73 C.H.R.R. D/30, 2011 CarswellNat 4190, 2011 CarswellNat 4191, 2011 SCC 53, 422 N.R. 248, (sub nom. C.H.R.C. v. Canada (A.G.)) 2011 C.L.L.C. 230-043, (sub nom. Canada (Canadian Human Rights Commission) v. Canada (Attorney General)) [2011] 3 S.C.R. 471, [2011] S.C.J. No. 53, [2011] A.C.S. No. 53 (S.C.C.) — referred to Canadian National Railway v. Canada (Attorney General) (2014), 371 D.L.R. (4th) 219, 458 N.R. 150, 2014 CarswellNat 1625, 2014 CarswellNat 1626, 68 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

2014 SCC 40, 2014 CSC 40, 67 Admin. L.R. (5th) 220, [2014] S.C.J. No. 40 (S.C.C.) — referred to Cartaway Resources Corp., Re (2004), 2004 CarswellBC 844, 2004 CarswellBC 845, 2004 SCC 26, [2004] 8 W.W.R. 62, 195 B.C.A.C. 161, 319 W.A.C. 161, 28 B.C.L.R. (4th) 1, 238 D.L.R. (4th) 193, 319 N.R. 1, 14 Admin. L.R. (4th) 190, 2004 CSC 26, [2004] 1 S.C.R. 672, [2004] S.C.J. No. 22, REJB 2004-60673, [2004] A.C.S. No. 22 (S.C.C.) — referred to Catalyst Paper Corp. v. North Cowichan (District) (2012), 34 Admin. L.R. (5th) 175, 2012 CarswellBC 17, 2012 CarswellBC 18, 2012 SCC 2, 11 R.P.R. (5th) 1, [2012] 2 W.W.R. 415, 340 D.L.R. (4th) 385, 26 B.C.L.R. (5th) 1, 93 M.P.L.R. (4th) 1, 425 N.R. 22, 316 B.C.A.C. 1, 537 W.A.C. 1, [2012] 1 S.C.R. 5, [2012] S.C.J. No. 2, [2012] A.C.S. No. 2 (S.C.C.) — referred to Cooper v. Canada (Human Rights Commission) (1996), 1996 CarswellNat 1693, 1996 CarswellNat 1694, 40 C.R.R. (2d) 81, (sub nom. Bell v. Canada (Human Rights Commission)) 140 D.L.R. (4th) 193, [1996] 3 S.C.R. 854, 204 N.R. 1, 27 C.H.R.R. D/173, 43 Admin. L.R. (2d) 155, 26 C.C.E.L. (2d) 1, EYB 1996-67303, [1996] S.C.J. No. 115 (S.C.C.) — referred to Dagenais v. Canadian Broadcasting Corp. (1994), 1994 CarswellOnt 1168, 34 C.R. (4th) 269, 20 O.R. (3d) 816 (note), [1994] 3 S.C.R. 835, 120 D.L.R. (4th) 12, 175 N.R. 1, 94 C.C.C. (3d) 289, 76 O.A.C. 81, 25 C.R.R. (2d) 1, 1994 CarswellOnt 112, 20 O.R. (3d) 816, EYB 1994-67668, [1994] S.C.J. No. 104 (S.C.C.) — followed Doré c. Québec (Tribunal des professions) (2012), (sub nom. Doré v. Barreau du Québec) 428 N.R. 146, 34 Admin. L.R. (5th) 1, 2012 CarswellQue 2048, 2012 CarswellQue 2049, 2012 SCC 12, [2012] 1 S.C.R. 395, (sub nom. Doré v. Barreau du Québec) 343 D.L.R. (4th) 193, (sub nom. Doré v. Barreau du Québec) 255 C.R.R. (2d) 289, [2012] S.C.J. No. 12, [2012] A.C.S. No. 12 (S.C.C.) — referred to Egg Films Inc. v. Nova Scotia (Labour Board) (2014), 2014 NSCA 33, 2014 CarswellNS 224, 1084 A.P.R. 204, 343 N.S.R. (2d) 204, (sub nom. Egg Films Inc. v. Labour Board) 2014 C.L.L.C. 220-032, [2014] N.S.J. No. 150 (N.S. C.A.) — considered Hellquist v. Owens (2002), (sub nom. Owens v. Human Rights Commission (Sask.)) 228 Sask. R. 148, 2002 CarswellSask 795, 2002 SKQB 506, (sub nom. Owens v. Saskatchewan (Human Rights Commission)) 45 C.H.R.R. D/272, [2002] S.J. No. 732 (Sask. Q.B.) — followed Hellquist v. Owens (2006), (sub nom. Owens v. Saskatchewan (Human Rights Commission)) 267 D.L.R. (4th) 733, 2006 SKCA 41, 2006 CarswellSask 217, (sub nom. Owens v. Saskatchewan (Human Rights Commission)) 279 Sask. R. 161, (sub nom. Owens v. Saskatchewan (Human Rights Commis- sion)) 372 W.A.C. 161, (sub nom. Owens v. Saskatchewan (Human Rights Commission)) 56 C.H.R.R. D/51, [2006] 7 W.W.R. 433, [2006] S.J. No. 221 (Sask. C.A.) — referred to TWU v. Nova Scotia Barristers’ Society 69

Hutterian Brethren of Wilson Colony v. Alberta (2009), (sub nom. Alberta v. Hutterian Brethren of Wilson Colony) 194 C.R.R. (2d) 12, 2009 Carswell- Alta 1094, 2009 CarswellAlta 1095, 2009 SCC 37, 310 D.L.R. (4th) 193, (sub nom. Alberta v. Hutterian Brethren of Wilson County) [2009] 2 S.C.R. 567, 9 Alta. L.R. (5th) 1, 81 M.V.R. (5th) 1, 390 N.R. 202, [2009] 9 W.W.R. 189, 462 W.A.C. 1, 460 A.R. 1, [2009] S.C.J. No. 37 (S.C.C.) — referred to L. (S.) c. Des Chênes (Commission scolaire) (2012), 2012 CarswellQue 741, 2012 CarswellQue 742, 2012 SCC 7, (sub nom. L. (D.) v. Commission scolaire des Chênes) 341 D.L.R. (4th) 577, 426 N.R. 352, [2012] 1 S.C.R. 235, (sub nom. L. (S.) c. Des Chênes (Commission scolaire)) 252 C.R.R. (2d) 168 (S.C.C.) — considered Multani c. Marguerite-Bourgeoys (Commission scolaire) (2006), 38 Admin. L.R. (4th) 159, (sub nom. Multani v. Marguerite-Bourgeoys) 55 C.H.R.R. D/463, 137 C.R.R. (2d) 326, (sub nom. Multani v. Marguerite-Bourgeoys) 264 D.L.R. (4th) 577, 2006 SCC 6, 2006 CarswellQue 1368, 2006 Carswell- Que 1369, 345 N.R. 201, [2006] 1 S.C.R. 256, [2006] S.C.J. No. 6 (S.C.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, 38 Admin. L.R. (5th) 255, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, 2008 CSC 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 Car- swellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Pearlman v. Law Society (Manitoba) (1991), (sub nom. Pearlman v. Manitoba Law Society Judicial Committee) 130 N.R. 121, (sub nom. Pearlman v. Manitoba Law Society Judicial Committee) 75 Man. R. (2d) 81, (sub nom. Pearlman v. Manitoba Law Society Judicial Committee) 6 C.R.R. (2d) 259, 70 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

1991 CarswellMan 284, (sub nom. Pearlman v. Manitoba Law Society Judicial Committee) [1991] 6 W.W.R. 289, (sub nom. Pearlman v. Manitoba Law Society Judicial Committee) [1991] 2 S.C.R. 869, 2 Admin. L.R. (2d) 185, (sub nom. Pearlman v. Manitoba Law Society Judicial Committee) 84 D.L.R. (4th) 105, (sub nom. Pearlman v. Manitoba Law Society Judicial Committee) 6 W.A.C. 81, 1991 CarswellMan 201, EYB 1991-67159, [1991] S.C.J. No. 66 (S.C.C.) — considered R. v. Big M Drug Mart Ltd. (1985), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18 C.C.C. (3d) 385, 85 C.L.L.C. 14,023, 13 C.R.R. 64, 1985 CarswellAlta 316, 1985 CarswellAlta 609, [1985] S.C.J. No. 17 (S.C.C.) — followed R. v. Mentuck (2001), 158 C.C.C. (3d) 449, 205 D.L.R. (4th) 512, 163 Man. R. (2d) 1, 269 W.A.C. 1, 2001 CarswellMan 535, 2001 CarswellMan 536, 2001 SCC 76, 47 C.R. (5th) 63, [2002] 2 W.W.R. 409, 277 N.R. 160, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73 (S.C.C.) — followed R. v. Oakes (1986), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 1986 Cars- wellOnt 95, 1986 CarswellOnt 1001, 53 O.R. (2d) 719 (note), [1986] S.C.J. No. 7, EYB 1986-67556 (S.C.C.) — followed R. v. S. (N.) (2012), [2012] 3 S.C.R. 726, 119 O.R. (3d) 78 (note), 2012 Cars- wellOnt 15763, 2012 CarswellOnt 15764, 2012 SCC 72, 290 C.C.C. (3d) 404, 98 C.R. (6th) 1, 353 D.L.R. (4th) 577, 437 N.R. 344 (note), 297 O.A.C. 200, [2012] S.C.J. No. 72 (S.C.C.) — referred to RJR-Macdonald Inc. c. Canada (Procureur général) (1995), (sub nom. RJR- MacDonald Inc. v. Canada (Attorney General)) 127 D.L.R. (4th) 1, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) [1995] 3 S.C.R. 199, 1995 CarswellQue 119, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 100 C.C.C. (3d) 449, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 62 C.P.R. (3d) 417, (sub nom. RJR-MacDonald Inc. v. Canada (Attorney General)) 31 C.R.R. (2d) 189, (sub nom. RJR- MacDonald Inc. c. Canada (Procureur général)) 187 N.R. 1, 1995 Car- swellQue 119F, EYB 1995-67815, [1995] S.C.J. No. 68 (S.C.C.) — referred to Shoppers Drug Mart Inc. v. Ontario (Minister of Health and Long-Term Care) (2013), 2013 CarswellOnt 15719, 2013 CarswellOnt 15720, 366 D.L.R. (4th) 62, [2013] 3 S.C.R. 810, 2013 SCC 64, 58 Admin. L.R. (5th) 173, 451 N.R. 80, 312 O.A.C. 169 (S.C.C.) — referred to Sobeys West Inc. v. College of Pharmacists of British Columbia (2014), 2014 CarswellBC 2233, [2014] 9 W.W.R. 619, 2014 BCSC 1414 (B.C. S.C.) — considered Syndicat Northcrest c. Amselem (2004), (sub nom. Syndicat Northcrest v. Am- selem) 241 D.L.R. (4th) 1, 323 N.R. 59, 28 R.P.R. (4th) 165, 2004 SCC 47, 2004 CarswellQue 1543, 2004 CarswellQue 1544, [2004] 2 S.C.R. 551, 28 TWU v. Nova Scotia Barristers’ Society 71

R.P.R. (4th) 1, 2004 CSC 47, 121 C.R.R. (2d) 189, [2004] S.C.J. No. 46, REJB 2004-66513 (S.C.C.) — referred to Thorne’s Hardware Ltd. v. R. (1983), 1983 CarswellNat 530F, [1983] 1 S.C.R. 106, 143 D.L.R. (3d) 577, 46 N.R. 91, 1983 CarswellNat 530, [1983] S.C.J. No. 10 (S.C.C.) — referred to Trinity Western University v. College of Teachers (British Columbia) (2001), 2001 SCC 31, 2001 CarswellBC 1016, 2001 CarswellBC 1017, 269 N.R. 1, 199 D.L.R. (4th) 1, (sub nom. British Columbia College of Teachers v. Trinity Western University) 2001 C.L.L.C. 230-026, [2001] 1 S.C.R. 772, 151 B.C.A.C. 161, 249 W.A.C. 161, 31 Admin. L.R. (3d) 163, 82 C.R.R. (2d) 189, 39 C.H.R.R. D/357, 2001 CSC 31, [2001] S.C.J. No. 32, REJB 2001-24105 (S.C.C.) — considered Whatcott v. Saskatchewan Human Rights Tribunal (2013), 355 D.L.R. (4th) 383, 441 N.R. 1, (sub nom. Saskatchewan (Human Rights Commission) v. Whatcott) 276 C.R.R. (2d) 270, (sub nom. Saskatchewan (Human Rights Commission) v. Whatcott) 76 C.H.R.R. D/1, (sub nom. Saskatchewan (Human Rights Tribunal) v. Whatcott) [2013] 1 S.C.R. 467, [2013] 4 W.W.R. 429, 2013 SCC 11, 2013 CarswellSask 73, 2013 CarswellSask 74, 409 Sask. R. 75, 568 W.A.C. 75, [2013] S.C.J. No. 11 (S.C.C.) — considered Statutes considered: Barristers and Solicitors Act, R.S.N.S. 1989, c. 30 Generally — referred to Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — considered s. 2(a) — considered Constitution Act, 1867, (U.K.), 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5 s. 96 — considered Human Rights Act, R.S.N.S. 1989, c. 214 Generally — referred to Legal Profession Act, S.N.S. 2004, c. 28 Generally — referred to s. 4(1) — considered Trinity Junior College Act, S.B.C. 1969, c. 44 s. 3(2) — referred to 72 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Rules considered: Nova Scotia Civil Procedure Rules, N.S. Civ. Pro. Rules 2009 Generally — referred to

APPLICATION by university for judicial review of decision of Council of Nova Scotia Barristers’ Society, voting to recognize law degrees of proposed law school only if institution changed its policy on community covenant.

Brian Casey, for Applicant Marjorie A. Hickey, Q.C., Peter Rogers, Q.C., Jane O’Neil, for Nova Scotia Barristers’ Society John Carpay, for Justice Centre for Constitutional Freedoms Andr´e Marshall Schutten, for Asssociation for Reformed Political Action Albertos Polizogopoulos, Kristin Debs, for Evangelical Fellowship of Canada and Christian Higher Education Canada Jessica Harris, for Attorney General of Canada Philip H. Horgan, for Catholic Civil Rights League and Faith and Freedom Alliance David St. C. Bond, for Christian Legal Fellowship Barry W. Bussey, for Canadian Council of Christian Churches Lisa Teryl, for Nova Scotia Human Rights Commission

Jamie S. Campbell J.:

1 What one person sees as having the strength of moral convictions is just sanctimonious intolerance to another. As with a lot of things, it depends on perspective. Orthodoxies, secular or religious, can provide the comfort of certainty. 2 The Nova Scotia Barristers’ Society (the “NSBS”) has said that it will recognize law degrees to be granted by the proposed law school at Trin- ity Western University (“TWU”) only if the institution changes its policy on student conduct. That policy now prohibits sexual intimacy for students outside traditionally defined marriage. The NSBS sees it as a matter of equality. TWU sees it as a matter of religious freedom.

1. Summary 3 This decision isn’t about whether LGBT equality rights are more or less important that the religious freedoms of Evangelical Christians. It’s not a value judgment in that sense at all. It is first about whether the NSBS had the authority to do what it did. It is also about whether, even if it had that authority, the NSBS reasonably considered the implications of TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 73

its actions on the religious freedoms of TWU and its students in a way that was consistent with Canadian legal values of inclusiveness, pluralism and the respect for the rule of law. In that sense, it is a value judgment. I have concluded that the NSBS did not have the authority to do what it did. I have also concluded that even if it did have that authority it did not exercise it in a way that reasonably considered the concerns for religious freedom and liberty of conscience. 4 The NSBS can only legally do what it has been given the power to do by legislation. It acts under the authority of the Legal Profession Act1 to regulate the practice of law in Nova Scotia. That act does not give the NSBS the power to require universities or law schools to change their policies. Its jurisdiction does not reach that far. 5 The NSBS does have jurisdiction to deal with the educational and other qualifications of people who apply to practise law in Nova Scotia. If TWU graduates were not prepared by virtue of their education to practise law in Nova Scotia, or were inclined by virtue of their training at that institution to be intolerant, refusing them admission would not be regulating the law school. It would be regulating the competence of Nova Scotia lawyers. 6 The Federation of Canadian Law Societies decided to recognize TWU law degrees as suitable to prepare graduates for legal practice. It was agreed here that graduates from TWU’s proposed law school would indeed be properly qualified. It was also agreed that they would be no more likely to discriminate than graduates of other law schools. So there is nothing wrong with TWU law degrees or TWU law graduates. 7 There is, according to the NSBS, something wrong with TWU. That something is its mandatory Community Covenant which the NSBS says discriminates against LGBT students. Unless that Community Covenant is changed a TWU law degree is deemed not to be a law degree for purposes of the NSBS. An otherwise qualified person would be deemed not qualified. The reason would not relate in any way to the law degree, to that person’s ability or to his or her suitability to practise law. It would not be because of anything other than the university policy to which the NSBS objects. That is no different than deeming a law degree not to be a law degree unless the university amended any number of other policies that are not reflected in the quality of the graduate. Those could include

1SNS 2004, c. 28 74 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

tuition policies, harassment policies, affirmative action admission quota policies or tenure policies. 8 The legal authority of the NSBS cannot extended to a university because it is offended by those policies or considers those policies to con- travene Nova Scotia law that in no way applies to it. The extent to which NSBS members or members of the community are outraged or suffer minority stress because of the law school’s policies does not amount to a grant of jurisdiction over the university. 9 The second issue is considered only if it is assumed that the NSBS had the authority to regulate in the manner that it did. The issue involves whether the NSBS reasonably considered the constitutional freedoms of TWU and its graduates. The issue is not whether it is right or fair or morally justified or even theologically sound to deny the right of equality to same-sex spouses in the context of life at a private religious university. The issue is about the action taken by the NSBS. The NSBS as a state actor has to comply with the Charter. TWU and its students are protected by the Charter. 10 The NSBS has characterized TWU’s Community Covenant as “unlawful discrimination”. It is not unlawful. It may be offensive to many but it is not unlawful. TWU is not the government. Like churches and other private institutions it does not have to comply with the equality provisions of the Charter. It has not been found to be in breach of any human rights legislation that applies to it. Counsel for the NSBS described TWU’s proposed law school as a “rogue” law school. It would be so only in the sense that its policies are not consistent with the preferred moral values of the NSBS Council and doubtless many if not a majority of Canadians. The Charter is not a blueprint for moral conformity. Its purpose is to protect the citizen from the power of the state, not to enforce compliance by citizens or private institutions with the moral judgments of the state. 11 People have the right to attend a private religious university that imposes a religiously based code of conduct. That is the case even if the effect of that code is to exclude others or offend others who will not or cannot comply with the code of conduct. Learning in an environment with people who promise to comply with the code is a religious practice and an expression of religious faith. There is nothing illegal or even rogue about that. That is a messy and uncomfortable fact of life in a pluralistic society. Requiring a person to give up that right in order to get his or her professional education recognized is an infringement of religious TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 75

freedom. Private religious schools are not limited to training members of the clergy, theologians, missionaries or those who want professional degrees but do not want to practise. Those institutions already do produce nurses and teachers and grant any number of academic degrees that are widely accepted. 12 Rights and freedoms are not absolute. Sometimes there has to be room for compromise. That involves deciding whether both the religious freedom and an important legislative goal can co-exist. The NSBS argued that its decision was an effort to uphold the equality rights of LGBT people. It was not an exercise of anyone’s equality rights. It was the decision of an entity acting on behalf of the state purporting to give force and voice to those rights. The NSBS is not the institutional embodiment of equality rights for LGBT people. To justify an infringement of religious liberty the NSBS action has to be directed at achieving something of significance. Refusing a TWU law degree will not address discrimination against anyone in Nova Scotia. 13 The NSBS through its counsel has said that it hoped that its decision, along with decisions of other law societies, would prompt TWU to change its policy on same sex marriage. It is hardly a pressing objective for a representative of the state to use the power of the state to compel a legally functioning private institution in another province to change a legal policy in effect there because it reflects a legally held moral stance that offends the NSBS, its members or the public. 14 The NSBS has argued that it would be wrong for it to countenance or condone what counsel described as the “homophobic” policies of TWU. Many people in Nova Scotia are offended by the TWU policy. For some, particularly LGBT people, living in the knowledge that an institution with policies such as TWU’s would have its degree recognized in Nova Scotia, adds to the considerable stress they already experience in their lives. There is an element of stress that is inherent in living in a multicultural society where beliefs and practices that offend majority values are not only on display, but are actively tolerated. Society does not seek to eradicate the practices or re-educate the believers but recognizes their rites and their organizations for state purposes such a solemnization of marriage, tax exemptions and charitable status. 15 There is a difference between recognizing the degree and expressing approval of the moral, religious, or other positions of the institution. The refusal to accept the legitimacy of institutions because of a concern about the perception of the state endorsing their religiously informed moral po- 76 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

sitions would have a chilling effect on the liberty of conscience and freedom of religion. Only those institutions whose practices were not offensive to the state-approved moral consensus would be entitled to those considerations. 16 The NSBS regulation and policy are in effect a statement of principle to stand in solidarity with LGBT people. The force or value of that statement has to be considered against the infringement of religious liberty that was the means by which it was made. The statement would not prevent TWU graduates from practising in Nova Scotia. A TWU graduate could article somewhere else and then apply to be admitted to practise in Nova Scotia. Individual TWU graduates could make a special application to the Executive Director and perhaps be admitted, without knowing for sure what criteria would be applied. Those criteria could be academic, but there is no concern with academic qualifications. The criteria could be personal, but once again there is no concern that TWU would produce lawyers who discriminate. Yet it was argued that it should be assumed that the as yet undefined process would be reasonable. The statement is in the form of an obstacle, the special application, that is put before a TWU graduate that is not put before others. That statement has no connection to the equality rights of the LGBT community or the public interest in the practice of law in Nova Scotia. That’s less a statement about equality than a statement about the futility of just making statements. 17 The NSBS refuses a TWU law degree and puts that obstacle before the individual graduate even though he or she may not agree with the university’s policies and may even be member of the LGBT community. Yet, quite properly, it does not prevent lawyers from practising law who may agree with the religious tenets that underlie TWU’s policy or who belong to religions or private organizations that espouse those moral positions and impose similar restrictions on their members. Any rational distinction in principle between those lawyers and a TWU graduate would have to be very finely drawn. 18 The value of the statement of principle made by refusing to recognize TWU law degrees is not proportional to the direct and substantial impact on freedom of religion. The NSBS acted unreasonably by failing to properly or adequately consider Charter rights in making the decision to refuse TWU law degrees and in passing the regulation that put that resolution into effect. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 77

2. Introduction 19 Canada is a “secular society”2. The state remains neutral on matters of religion. It does not favour one religion over another. And it does not favour either religion or the absence of it. While the society may be largely secular, in the sense that religion has lost its hold on social mores and individual conduct for many people, the state is not secular in the sense that it promotes the process of secularization. It remains neutral. It has not purged religiously informed moral consciences from the public sphere nor does it accord them more weight than others. The society is secular, but the state does not have a secularizing mission. 20 The issue of how a state that is neutral as to religion, a secular society and the religious groups within that society respond to their sometimes different value systems is not one that will be easily resolved. It is seen in how society deals with legal issues such as the wearing of a niqab by a witness in court3, the wearing of a ceremonial dagger in school4, the refusal to have a picture taken for purposes of a driver’s licence5 and the demand to be able to build a temporary religious structure on a condo- minium balcony for purposes of ceremonial holiday observance.6 21 The pressure points are evident from the recent debate in Quebec about Bill 60 which proposed a Quebec Charter of Values intended to affirm the values of state secularism and religious neutrality as well as to

2That statement is potentially inflammatory. It is also a gross over simplifica- tion. Charles Taylor in Dilemmas and Connections; Selected Essays (The Bel- knap Press of Harvard University Press, Cambridge Mass. 2011), notes at page 306, that the history of the term “secular” in the West is both “complex and ambiguous”. Elsewhere he has argued that there are three broad ways in which to view secularization. The first is that the modern Western state is free from the connection with a divine power as its basis, or guarantee. The second is that economic, political, cultural and professional norms generally do not refer to any religious beliefs. The third is that there has been a move away from a society where religious belief was unchallenged to one where it is but one choice among many and “frequently not the easiest to embrace.” Taylor, Charles, A Secular Age (The Balknap Press of Harvard University Press, Cambridge Mass., 2007). 3R. v. S. (N.), 2012 SCC 72 (S.C.C.) 4Multani c. Marguerite-Bourgeoys (Commission scolaire), 2006 SCC 6 (S.C.C.) 5Hutterian Brethren of Wilson Colony v. Alberta, 2009 SCC 37 (S.C.C.) 6Syndicat Northcrest c. Amselem, 2004 SCC 47 (S.C.C.) 78 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

confirm the equality of men and women and provide a framework for accommodation requests. That Charter would, among other things, have limited the wearing of conspicuous religious symbols by public officials. While praised by some it was also criticized as an example of intolerance in the name of tolerance.7 22 Who tolerates whom? Many of us no longer even speak of tolerance as it relates to the LGBT community. There has been a decisive shift in Canadian values. Mainstream values no longer stigmatize LGBT people. Those who do are now the dissident and dissonant voices. 23 On same sex marriage there is still a moral divide. For many Canadi- ans, both religious and non-religious, it helps to define us as a progressive and open society. For many of us there is no “debate” left to be had about the morality of homosexuality. The idea of calling the expression of a person’s sexual identity a “sin” is cringe-worthy or anachronistic at best. But not everyone agrees. They are not moral outliers with aberrant views requiring education at best, or coercion at worst, by more thought- ful and progressive government agencies.

7Tolerance itself is an ambiguous concept with a paradox inherent in it. Samuel Taylor Coleridge called it a “species of pretentiousness” or “a poor trick that hypocrisy plays with the cards of nonsense”. Condorcet wondered if only “the insolence of a dominating religion” could call tolerance, a “permission granted by men to other men,” what should be seen as a respect for mutual freedom. (Comte-Sponville, Andre, A Small Treatise on the Great Virtues, (Henry Holt and Company: New York 1996) page 170) Others have noted that toleration connotes inequality and signifies the limits of what “foreign, erroneous, objectionable, or dangerous element can be allowed to cohabit with the host without destroying the host”. (Brown, Wendy, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton, NJ: Princeton University Press, 2006) at 27, see also, Minow, Martha “Putting Up and Putting Down: Tolerance Recon- sidered” (1990) 28 Osgoode Hall L.J. 409) Others would see tolerance and accommodation as outdated concepts that stand in the way of “deep equality” and a “cohesive society”. (Beaman, Lori (ed.) Reasonable Accommodation: Manag- ing Diversity (Vancouver: UBC Press 2012). The paradox as noted by Karl Pop- per is that when taken to an extreme tolerance ends up negating itself. If unlimited tolerance is extended to those who are intolerant and society does not defend itself against them, the tolerant will be destroyed and the tolerance with them. Popper, Karl The Open Society and Its Enemies, ( Routledge & Kegan Paul, 1966), vol.1, p.265. Tolerance, even with its ambiguity and inherent paradox, is nothing if not resilient as a concept. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 79

24 Tolerance then has to involve an element of respect if it is to go beyond passive aggressiveness or perhaps beyond moral relativism or hypocrisy. The respect is not for the sometimes apparently closed minded opinions and outdated beliefs of others. The respect is for the basic human dignity of those who hold those views and their rights as Cana- dian citizens to act according to them, within limits.

3. Evidence 25 There are two kinds of evidence to be considered in this matter. The first involves adjudicative facts. Those are the facts that relate directly to the subject matter of the case. They are either agreed upon or proved through the usual adversarial process. That involves the application of the rules of evidence and testing by way of cross-examination. In this case there is no real dispute on the adjudicative facts. 26 Litigation under the Charter has resulted in the more robust development of another kind of evidence. Legislative facts or social science evidence is important in providing a context within which to consider issues that relate to public policy. Courts do not consider those kinds of things in a vacuum. It is important to have access to information but the process can become bogged down by dealing with it in the more formal traditional way. Because of that parties are able to file materials and provide reports from experts that set out some of that information. The court has to consider how much weight to be given to it. 27 Trial judges or application judges dealing with Charter matters are charged with the job of establishing the facts upon which eventual and in some cases inevitable appeals will be based. That is a notoriously tedious and time-consuming process.8 While adjudicative facts are limited by materiality and relevance, the boundaries of context for legislative and social science facts can be expansively broad. In this case, they range for example, from the interpretation of the Old Testament/ Tanakh Books of Genesis, Exodus and Leviticus and Paul’s Letters to the Romans and to the Galatians in the New Testament to the work of Johann Friedrich Blumenbach, an 18th century German who developed theories of racial difference based on Biblical teachings, a review of the imperialistic racism of the 19th century, and an the interpretation of J.S. Woodsworth’s 1909 book entitled Strangers Within Our Gates, described as a Christian defence of scientific racism. All of that information, and potentially very

8Bedford v. Canada (Attorney General), 2013 SCC 72 (S.C.C.), para. 52. 80 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

much more, is part of the historical and social context. Summarizing and commenting on all of it, as well as adding other perspectives on the historical and religious content would certainly be tedious and time consuming but also perhaps wasteful and self-indulgent. What has been summarized are the adjudicative facts and those legislative and social science facts that are broadly relevant to the legal determinations involved in the application.

a. Trinity Western University 28 Trinity Western University (“TWU”) is a private university located in Langley, British Columbia. It was founded as Trinity Junior College in 1962 by the Evangelical Free Church of America. It was founded as a religious community and primarily serves the evangelical Christian community in Canada. It was given the right to grant university degrees in 1979. Its name was changed to Trinity Western University in 1985. At that time it was granted authority to offer graduate degrees. The university is a member of the Association of Universities and Colleges of Can- ada (“AUCC”) and has been since 1984. 29 TWU now offers 42 undergraduate majors and has 17 graduate programs. It has a professional school of nursing and a school of education. TWU offers all of the facilities of a modern small university with about 4,000 students enrolled each year. There is no dispute about the academic quality of the institution. 30 Faculty members at TWU receive funding for their research from the Tri-Council of Agencies (Canadian Institutes of Health Research, Natu- ral Sciences and Engineering, Research Council of Canada and Social Sciences and Humanities Research Council) or through other foundations and grants. TWU has a policy on academic freedom and maintains that it is committed to maintaining a campus environment in which faculty and students have intellectual freedom to explore and discuss all manner of contemporary social, political and religious issues.9 The curriculum is developed and taught in a manner that is consistent with the religious world view of the university. 31 The British Columbia legislation that chartered the university provides that it offers university education “with an underlying philosophy

9Affidavit of Dr. W Robert Wood, Executive Director of the Evangelical Free Church of Canada, para. 52. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 81

and viewpoint that is Christian.”10 The university community is rooted in the evangelical Protestant tradition and the mission, curriculum, core values and community life of the university are formed by a commitment to Biblical principles as they are interpreted within that particular tradition. 32 TWU’s law school would be the first law school in Canada at a private and privately funded university.11 It describes itself as “an arm of the Church”. There is no doubt that it is closely aligned with the evangelical Christian community in Canada. The university exists under the authority of the Evangelical Free Churches of Canada and the United States.12 Its goal is to exist as an expression of the heritage and values of those churches. It is not merely an historical connection or a nominal one. The religious denominations involved very much control what happens at TWU. Funding for the university comes from the churches and from private donors.

b. The Community Covenant 33 TWU does not require an affirmation of faith to attend the institution. A non-Christian or a Christian from another very different tradition would be welcome to attend. One of the distinguishing features of TWU, and at the heart of this matter, is what is referred to as the TWU Commu- nity Covenant. All students are required to sign that document. By signing it they agree to adhere to a code of behaviour that TWU says is in keeping with Christian principles as they are interpreted in the evangelical tradition. The Community Covenant is not just about sexual morality. It contains among other things a commitment to “Christian virtues” such a love, joy, peace, kindness, gentleness, self-control, humility, mercy and justice. It includes prohibitions on a broad range of activities some of which are well within the accepted norms of modern university student life in other institutions.

10Trinity Western University Act S.B.C. 1969, c.44 s. 3(2). 11For purposes of this matter the NSBS did not dispute the private character of TWU. 12The Evangelical Free Church of Canada (“EFCC”) is an association of evangelical Christian churches, all of which use the term Evangelical Free Church as part of their names. The EFCC is affiliated with the Evangelical Free Church of America (“EFCA”). The EFCC has 163 member churches with formal membership of about 9,000 and regular Sunday attendance of 12,000. 82 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

34 The Community Covenant bans all sexual intimacy outside the traditional marriage between a woman and a man. In other words, TWU does not recognize same-sex marriage. TWU does not ban LGBT students. It does not limit the sexual activity of unmarried LGB students any more than it purports to regulate the sexual activity of unmarried non-LBG students. But, significantly, it does not recognize that LGB people can be sexually intimate even if they are legally married. 35 Homophobic, disrespectful or discriminatory remarks or behaviour directed against LGBT people, or any harassment or bullying of students for whatever reason, including as a result of their sexual orientation is unacceptable and a violation of the Community Covenant.13 36 The EFCC teaches that marriage is a divinely sanctioned institution carrying significant theological implications. Marriage within the Evan- gelical Christian tradition has been defined as an exclusive, lifelong, cov- enantal union of male and female. It is shared between the spouses to the exclusion of all other persons. Portions of the Bible are interpreted as the foundation for that belief. Because Evangelical Christians understand marriage as divinely instituted it takes a central position in the theological understanding of the good life for human beings to live.14 37 Those who are unmarried are expected to abstain from sexual relations, living chaste and celibate lives. As to “same sex intercourse” it is

13Wood affidavit, para. 118 Some will undoubtedly consider these statements to be incompatible with the evangelical Christian position on the sinfulness of homosexual behaviour. To call a person’s expression of their sexual orientation a sin is, on that view, in and of itself, judgmental. As Justice L’Heureux-Dube stated in her dissenting opinion in Trinity Western University v. College of Teachers (British Columbia) which was cited with approval by Justice Rothstein in Whatcott v. Saskatchewan Human Rights Tribunal, it is no longer legally acceptable to use the justification of separating homosexual behaviour from homosexual orientation. “The status/conduct or identity/practice distinction for homosexuals and bisexuals should be soundly rejected”. It is of course rejected for legal purposes not theological ones. It is very much a part of Evangelical Chris- tian belief and practice which asserts that homosexuality as an act is sinful but that there is no sin attached to one’s sexual orientation. 14Affidavit of Dr. Jeffrey Greenman, Executive Vice President, Academic Dean and Associate Professor of Theology and Ethics at Regent College, Vancouver, British Columbia. para. 67 TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 83

believed to be “contrary to biblical teaching and therefore morally unacceptable.”15 38 Those teachings about sexual morality are integral to Evangelical Christian faith. Their basis and source are said to be in the authoritative texts of Scripture. Evangelical Christians also believe that they are central to the Bible’s moral account of proper conduct. The believe that “[t]he Bible’s teaching from its first book, Genesis, to its last book, Rev- elation, is fully consistent and unwavering that sexual conduct is only morally appropriate within the boundaries of male-female marital union.”16 Sexual behaviour is viewed as an expression of one’s “fundamental loyalty or disloyalty to God...which is of ultimate importance in Christian faith.”17

15Greenman affidavit, para. 82. I would not pretend to have the ability to cri- tique Evangelical Christian theology nor is it appropriate for me to do so. Courts do not become involved in interpreting religious texts. As the trial judge I am obliged to not simply accept all legislative facts as they are put forward. There is an obligation to assess them if even in some limited way. I have applied a limited level of scrutiny to all of the facts provided for context. For that purpose I simply note that this interpretation is not held by all Christian denominations. There are those who interpret the holiness code in Leviticus, for example, as dealing with ritual cleanliness and separating the people of Israel from the “pagan” tribes surrounding them. The prohibitions are more about preserving a sense of Jewish identity than anything else. Some historical interpretations suggest that early Christians were not prepared to impose the levitical law on themselves. Similarly New Testament references are also subject to other interpretations. The New Testament itself contains no citations of the Old Testament strictures. Other Christians believe that those passages that could be interpreted as referring to homosexuality in the New Testament are a condemnation of first century pagan religious rituals that involved sex in various forms. They assert that the scriptural material has to be read bearing in mind the context in which it was written. There is a tension between text and context. There is no consensus among Christians as to whether homosexuality is a sin. 16Greenman affidavit para. 114 17Greenman affidavit para. 118. Once again, I carry no brief to question the basis of that faith. I must point out once again however, that this is not a view of Christianity that is held by all expressions of that faith. There are those who would note that definitions of sexual morality and the enforcement of traditional sexual morality founded on contestable interpretations of an Old Testament ritual holiness code are not central to a faith that stresses illimitable nature of Di- vine love. They point out that if strict obedience to Biblical authority is required, 84 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

39 Codes of conduct such as the one in place at TWU are common within Christian universities and colleges.18 Those codes address a range of issues from health, safety and legal issues to weapons on campus, ver- bal, sexual and physical harassmen, and privacy and security issues. Poli- cies also address things like plagiarism and academic dishonesty more generally. Codes of Conduct in the context of Christian schools relate to moral standards and behavioural expectations. Those policies address the use of alcohol, tobacco and illegal drugs, chapel and church attendance, sexual morality and related expectations such as residence hall visitation and cohabitation policies, and policies on conflict management and violence. 40 The role of the conduct code is to “clearly communicate the identity/ethos of the university to campus constituents.”19 Even students who disagree with the conduct code can see it as an expression of the university’s identity. Codes of conduct are seen as establishing a community “conducive to spiritual growth in the context of Christian colleges and universities”. The environments are intended to be protected from influ- ences that are detrimental to personal spiritual growth. 41 Attached to the affidavit of Janet Epp-Buckingham was a series of extracts from similar codes at other universities which have American Bar Association approved law schools.20 They included the “Honor Code” from Brigham Young University, which among other things regu- lates dress and grooming standards of students who must be “modest, neat and clean”. The Honor Code states that homosexual behaviour is inappropriate and violates the Honor Code. Homosexual behaviour includes not only sexual relations between members of the same sex but “all forms of physical intimacy that give expression to homosexual feelings.”

it might be better to start with those injunctions interpreted as having come directly from Christ. They include the requirement to sell one’s possession and give to the poor. (Luke 12:33) I accept the important point however that within the Evangelical Christian expression of faith, the practice of faith cannot be separated from personal obedience to standards of sexual conduct. 18Report of Dr. Gerald Longjohn Jr, Vice President for Student Development at Cornerstone University in Grand Rapids, Michigan. 19Longjohn report p. 3. 20Affidavit of Janet Epp-Buckingham (LL.D.), Director and Associate Profes- sor, TWU. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 85

42 Boston College is a Jesuit and Catholic institution. Its code of conduct is described as reflecting the ethics, values and standards of the university community as a Jesuit, Catholic institution. Its Code of Student Conduct prohibits sexual intercourse “outside the bonds of matrimony”. Another Roman Catholic institution, the University of Notre Dame has a clear statement that the university, embraces the Catholic Church’s teaching that a genuine and complete expression of love through sex requires a commitment to a total living and sharing together of two persons in marriage. Conse- quently, students who engage in sexual union outside of marriage may be subject to referral to the University Conduct Process. 43 Pepperdine University in California is associated with the Churches of Christ. It also has a law school that has been approved by the Ameri- can Bar Association. The institution requires that students comply with a code of conduct that it maintains is based on Christian philosophy. That includes the requirement to abstain from “sexual conduct outside of marriage”. 44 While some very highly regarded educational institutions in the United States do have codes of conduct that prohibit same-sex sexual intimacy, those codes in some instances are the subject of considerable debate. The recognition of LGBT equality rights in the American context is, however hardly an aspirational standard.

c. TWU Law School 45 Some time ago TWU decided to create its own law school. After a process that involved consultation with lawyers, judges and legal aca- demics TWU made a presentation to the Federation of Canadian Law Societies (the “Federation”). The Federation is the national coordinating body of the 14 law societies that govern lawyers and notaries across the country. One of its functions is to develop national standards of regulation. Each law society in the common law provinces and territories requires applicants for bar admission to hold a Canadian common law degree or its equivalent. The Federation adopted a uniform national requirement for Canadian common law programs in 2010. The Approval Committee is the body responsible for making the determination as to whether a degree complied with those national standards. 46 Canadian law societies had agreed to rely on the recommendations of the Approval Committee. That approval would be required for graduates of the school of law to be able to practise in Canada. 86 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

47 By a letter dated 22 April 2013 the Federation advised TWU that it would be establishing a Special Advisory Committee to consider the effect of the Community Covenant on the Federation’s decision whether or not to approve the proposal. That Special Advisory Committee had the mandate to consider what additional considerations should be taken into account in determining whether future graduates of TWU’s proposed law school should be eligible for admission into any of Canada’s law societies, given the requirement that students sign the Community Covenant. The Special Advisory Committee was to take into account all representations that had been received, the applicable law, including the Charter and the Supreme Court of Canada decision in Trinity Western University v. College of Teachers (British Columbia), and any other information that the committee decided was relevant. 48 The Special Advisory Committee released its final report in Decem- ber 2013. It found that there was no public interest reason for preventing graduates of the JD Program at TWU from practising law. The Special Advisory Committee acknowledged the arguments raising important issues of equality rights and freedom of religion. If the Approval Commit- tee concluded that the TWU proposed law school met the national requirement there was no public interest bar to the approval of the school. 49 The Approval Committee approved the law degree from TWU’s proposed law school and in doing so referenced and relied on TWU’s statements that it was fully committed to addressing ethics and professionalism, that it recognized its duty to teach equality and to promulgate non- discriminatory practices, and that it would ensure that students understood the full scope of protections from discrimination based on sexual orientation. That approval would be followed by an annual review. 50 With the 16 December 2013 approval of the Federation in hand, TWU approached the NSBS.

d. NSBS Process 51 The Council of the NSBS is responsible for the governance and regulation of the legal profession in the public interest according to the Legal Profession Act.21 The Council has 21 members, including 3 officers, 13 elected lawyers, 3 public representatives, a representative of the Attorney General of Nova Scotia and the Dean of the Schulich School of Law. In

21S.N.S. 2004, c. 28. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 87

April 2013, the Council was aware that TWU had made an application to the government of British Columbia for the approval of a law school and to the Federation for approval of the common law degree. At that time the NSBS Council decided to defer discussion about the matter until the Federation had issued its report, which it did in December of that year. 52 In January 2014 the Council tasked the Executive Committee with receiving submissions and identifying the options with respect to the request of TWU for approval of its law degree. Public input was solicited and two public meetings were held. The Committee also received over 150 written submissions, and to the extent that they could be characterized as taking either “pro-TWU” or “anti-TWU” stance, about one third were in favour of TWU and two thirds against. The Executive Commit- tee also heard from the President of TWU and received submissions from the intervenors in this case. 53 At that time, section 3.3.1 of the NSBS regulations stated that an applicant for enrollment as an articled clerk must: be of good character; be a fit and proper person; be lawfully entitled to be employed in Canada; have a law degree; have an approved principal; provide the Executive Director with a completed application in the form prescribed by the Committee; provide the Executive Director with two letters of reference attesting to good character; provide the Executive Director an official transcript of the applicant’s grades at each faculty of law at which the applicant studied; pay the prescribed application fee to the Executive Director; provide an Articling Agreement in the prescribed form executed by the applicant and an approved principal to the Executive Director; provide the Executive Director with a criminal record check... be proficient in the English language... provide such other information that may be required, at any time, by the Executive Director. 54 NSBS regulation 3.1(b) defined “law degree” as including, a bachelor of laws degree or a juris doctor degree from a faculty of common law at a Canadian university approved by the Federation of 88 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Law Societies of Canada for granting of such a degree, or an equivalent qualification... 55 According to the regulations in place until April 2014, TWU law school graduates who met the other qualifications would not be denied admission to the Nova Scotia bar based only on the fact that their degrees were from TWU. Once the degree was approved by the Federation it was, by definition, a law degree. 56 NSBS Council was presented with three options for a vote on 25 April 2014. The first was for acceptance of the Federation Approval Committee report on the basis that the TWU proposal met the national requirement. The second was to not approve the law school at TWU because the “Community Covenant is discriminatory”. There was a third option which was put forward as a motion. Council accepted that option by a vote of 10 to 9. 57 The Resolution passed on 25 April 2014 provides: Council accepts the Report of the Federation Approval Committee that, subject to the concerns and comments as noted, the TWU program will meet the national requirement; Council resolves that the Community Covenant is discriminatory and therefore Council does not approve the proposed law school at Trinity Western unless TWU either; exempts law students from signing the Community Covenant; or amends the Community Covenant for law students in a way that ceases to discriminate. Council directs the Executive Director to consider any regulatory amendments that may be required to give effect to this resolution and to bring them to Council for consideration at a future meeting. 58 The reasoning attached to that option was that the appropriate balancing of competing values relating to freedom of religion and equality should be done by the NSBS and had not been done by TWU because of the Community Covenant. The covenant when viewed through the lens of the Nova Scotia Human Rights Act22 is discriminatory and is not saved by any exceptions. By requiring prospective students to sign a contract that contains discriminatory statements and by threatening discipline in the event of a violation, TWU exceeded the bounds of religious freedom. A 2001 Supreme Court of Canada decision dealing with the

22R.S.N.S. 1989, c. 214. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 89

accreditation of the teacher education program at TWU was said to be not determinative of the issue because of developments in the law and in society. The memorandum noted that there is a significant difference between teacher education and a law school, the latter of which is training individuals to balance competing Charter rights. The option did not con- demn graduates as being unqualified to practice law but was said to address and reject the systemic discrimination of the institution. 59 The resolution refers specifically to not approving the “proposed law school”. 60 On 23 July 2014 the NSBS amended the regulations to implement the Resolution. The regulation now reads; In this Part “Committee” means the Credentials Committee “law degree” means, a Bachelor of Laws degree or a Juris Doctor degree from a faculty of common law at a Canadian university approved by the Federation of Law Societies of Canada for granting of such degree, unless Council, acting in the public interest, determines that the university granting the degree unlawfully discriminates in its law student admissions or enrollment policies or requirements on grounds prohibited by either or both the Charter of Rights and freedoms or the Nova Scotia Human Rights Act. a degree in civil law... a Certificate of Qualification issued by the National Committee on Accreditation of the Federation of Canadian Law Societies. 61 The Regulation and the Resolution are both challenged in this application. The application for judicial review was filed after the Resolution was passed but before the Regulation implementing it. The application has been agreed to be with respect to the validity of both. When the “decision” of the NSBS is referenced it is intended that it include both the Resolution and the Regulation. On its face, the resolution to not approve TWU’s law school was not in compliance with the regulations in place at the time. So, the regulations were changed to reflect the resolution.

e. NSBS Institutional Responses to Racism and Discrimination 62 The decision of the NSBS was made in the context of a troubled history of racism and discrimination. The NSBS has faced that history head on and has taken substantial steps to make the practice of law in Nova Scotia not only more sensitive to issues of equality but more inclusive. 90 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

63 In December 1989 the Royal Commission on the Donald Marshall Jr. Prosecution released its report. The Marshall Inquiry found that racism and discriminatory attitudes existed within the Province’s justice system. Donald Marshall’s status as a Mi’kmaq was held to have contributed to the miscarriage of justice. The Report recommended that Dalhousie Law School, the NSBS and the Judicial Councils support courses and programs dealing with legal issues facing visible minorities, and encourage sensitivity to minority concerns for law students, lawyers and judges. 64 Even before the Report was released the NSBS established an ad hoc race relations committee that began to identify issues. In the immediate aftermath of the Marshall Commission Report the society focused its primary responsibility with regard to lawyers’ behaviour by addressing the roles that lawyers had played in Donald Marshall’s wrongful conviction and the subsequent events. In 1991, F.B. Wickwire, the President of the NSBS stated in a report to Council that the commitment of the NSBS was firm: to do all that it could to eliminate discrimination in the justice system. 65 The NSBS made the Race Relations Committee a standing committee of the society and established a second standing committee, the Gender Equality Committee, in 1992. The Gender Equality Committee released a report in 1993 entitled Gender Equality in the Nova Scotia Legal Profes- sion: A Survey of Members of the Nova Scotia Legal Profession. That work was triggered by female lawyers leaving the profession in numbers disproportionate to men, rather than by complaints of discrimination. The committee undertook a broad-ranging investigation of the experience of women in the legal profession and documented widespread gender discrimination. 66 In 1996 the Council of the NSBS approved the establishment of the Equity Office and the hiring of an Equity Officer. The Equity Officer’s role was to establish relationships with the African Nova Scotian and Mi’kmaq Communities in order to better understand the justice issues in those communities and to advance the interests of members of those communities in becoming lawyers. The Equity Officer was also to address the issues of retention of women in the legal profession. 67 Since its inception the Equity Office has actively addressed ways to make the profession more diverse and reflective of a full range of communities in the province with an emphasis on historically disadvantaged communities. It is responsible for a range of programs designed to increase lawyers’ and law firms’ understanding of issues related to human TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 91

rights and all forms of harassment and discrimination. The Equity Of- ficer and the two equality committees (Racial Equity Committee and Gender Equity Committee) have developed numerous policies to assist lawyers and law firms in relation to issues such as hiring practices, accommodation, maternal and parental leaves, harassment and, more recently, in the development of greater cultural competence. 68 In addition to initiatives on employment equity, cultural competence, disability and mental health, access to justice, gender equity issues, and racial equity community initiatives, the Equity Office has engaged directly with the lesbian, gay, bisexual and transgendered (LGBT) community. Beginning in 2003 the NSBS together with the Canadian Bar Asso- ciation (Nova Scotia) has hosted a Pride Reception. The purpose of that reception has been to create a “safe and welcoming place for members of the LGBT community in the legal profession, to celebrate diversity in the profession and to show support for LGBT lawyers in Nova Scotia.”23 Each reception has had an educational component with speakers addressing a variety of equity issues. 69 In 2010 the Equity Office, in collaboration with the CBA’s Sexual Orientation and Gender Identity Section, introduced a mentorship program for LGBT law students and lawyers to provide a community of support. In the fall of that same year, the Equity Office began a research project with the Nova Scotia Rainbow Action Project to consider a range of legal issues which continued to impact on the LGBT community following the legislative changes that allowed for same-sex marriage in Nova Scotia. That project produced two research documents. One looked at Nova Scotia legislation that continued to refer to marriage in heterosexual terms. The second considered legislation, regulations and policies that apply to birth and adoptions in lesbian marriages and gay marriages and continuing discrimination contained in the current regime. Both papers were approved by the NSBS council for submission to government. 70 Over the last several years the NSBS has developed and delivered cultural competence training and education inside the society and to lawyers and law firms. The focus of the work is to raise awareness of the “unique issues affecting all equity seeking groups, which include but are not limited to, African-Nova Scotians, all racialized communities, non-

23Affidavit of Darrell Pink, Executive Director, para. 15. 92 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Christian religious communities, the LGBT community, those with physical and mental disabilities and new Canadians.”24 71 In 2013 the NSBS revised the mandate of the Equity Office to provide in part that it assist in fulfilling the Society’s regulatory functions in maintaining public confidence in the regulation of the profession, upholding the public interest in the practice of law and seeking to improve the administration of justice in relation to equity and diversity. 72 In 1993 the NSBS underwent the first of what became a series of program reviews. In 1997 the Council approved Regulation 1A which set out the public interest role of the Society. In 1996 the NSBS imple- mented Chapter 24 of the Legal Ethics Handbook, which requires that lawyers respect the human dignity and worth of all persons and treat all persons with equality and without discrimination. 73 In 2001 and 2002 the NSBS undertook a process that led to the repeal of the Barristers and Solicitors Act.25 That involved extensive research and consultation on the role and purpose of the NSBS as the regulator of the legal profession in the province. The Legal Profession Act came into effect in 2004. Subsection 4(1) of the Act articulated the purpose of the NSBS to “uphold and protect the public interest in the practice of law.” 74 The new legislation caused the NSBS to address through regulations and policies how it would carry out its purpose. Several initiatives were undertaken and Council adopted a set of policies about how it would do its work. Included in those policies was a statement of “values” that would drive all society activity. The values first adopted in 2008 are, fairness, respect, integrity, visionary leadership, diversity and accountability. 75 A second way in which the new legislation directly impacted the activities of the NSBS was the establishment of a Strategic Plan. That Plan addressed how the NSBS would uphold the public interest. Each Strate- gic Plan has been accompanied by a detailed Activity Plan. 76 Beginning in 2006 the NSBS has required each lawyer to complete an Annual Lawyer Report. In that document lawyers are asked to self-identify in equity seeking groups, one of which is LGBT. In 2011 the NSBS replaced the Legal Ethics Handbook with the Code of Professional Con-

24Pink affidavit para. 18. Evangelical Christians are by definition, not an equity seeking group. 25R.S.N.S. 1989, c.30. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 93

duct. Section 6.3 was approved to carry out the principles underlying the previous Chapter 24 which dealt with equality and diversity.26 77 Since 2012 the NSBS has required all members to complete a minimum of 12 hours of Continuing Professional Development of which 2 hours must be in the area of Professionalism. One of the acceptable top- ics is sexual orientation and gender identity and the law in Canada. 78 One of the priorities of the Strategic Framework 2013-2016 is to en- hance access to legal services and the justice system. The initiatives adopted to implement the priority are to advocate for enhanced access to legal services and the justice system for equity seeking groups.27 79 In his affidavit Mr. Darrell Pink, Executive Director of the NSBS, cites information obtained from Professor Brent Cotter, a professor of law and former Dean at the College of Law, University of Saskatchewan. Professor Cotter is one of the originators of the system of collecting and analyzing admissions statistics from Canada’s common law schools. Mr. Pink reported Professor Cotter’s information and it is accepted as accurate. 80 There are 24 law schools in Canada, 18 of which offer common law degrees. Professor Cotter had access to admissions statistics from 16 of those schools. The total number of applications to the 16 schools was 29,375 in 2011, 28,966 in 2012, and 27,583 in 2013. Most applicants apply to more than one law school and on average, each applicant applies to three. To fill first year law classes, the schools made 6508 offers to candidates in 2011, 6292 in 2012 and 6557 in 2013. The actual number of students enrolled in first year classes at the 16 common law schools in 2011 was 2715, 2720 in 2012 and 2782 in 2013.28

f. History of Discrimination Against Sexual Minorities 81 Dr. Elise Chenier is an historian and an associate professor at Simon Fraser University. Her expertise is in the history of gays, lesbians and other sexual minorities. It also includes the harm done by discrimination viewed from an historical perspective. Dr. Chenier teaches courses in the history of the gay and lesbian experience. That has required that she remain aware of contemporary literature in political science and sociology

26Pink affidavit, para. 29. 27Pink affidavit, para. 3. 28Pink affidavit para. 33. 94 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

in order to understand and convey a proper historical approach to discrimination. Dr. Chenier is eminently qualified to provide an opinion as an historian. 82 Her opinion contains some highly informative historical analysis. In- formative does not necessarily translate into relevant for the purposes of resolving this case. The information that relates to the effects of discrimination against LGBT people does not address whether the actions by the NSBS will reduce the amount of that discrimination or ameliorate its effects. When Dr. Chenier expresses a firmly held belief that the NSBS was legally right to do what it did, she is expressing a view on the very matter before the court and draws legal conclusions that are not within her area of expertise. 83 Dr. Chenier’s report provides an outline of the historical discrimination against gays and lesbians but goes well beyond that. She notes that from the moment of European colonization many groups in Canada have been excluded by virtue of a colonial, imperial and nation-building vision. She provides comments on and historical examples of discrimination against indigenous people, French people, people of African descent, Chinese people and Jewish people. She asserts that the values and practices underlying much of the discrimination were based on Christian theological teachings buttressed by scientific racism. Dr. Chenier sets the discriminated groups apart from a dominant white Protestant middle class culture, of which it may be inferred Evangelical Christians are a part. The opinion relates racism and discrimination against LGBT people to Christian theology. This case does not turn on whether Christians have historically oppressed others and whether Christian theology has been used to justify racism, sexism, bigotry and homophobia. There are issues with which one might quibble.29

29Those issues include what has sometimes been referred to as the subtraction narrative by which religion is replaced by progressive enlightenment humanism. That has been called into some question by the intensely violent history of the 20th century. Gillespie, Michael Allen, The Theological Origins of Modernity (The University of Chicago Press, Chicago, 2009), p. 284. The suggestion that scientific racism became an affirmation of religious belief is an historically legitimate view put forth by Dr. Chenier. It might also be noted that scientific racism was opposed by some Christian groups on religious grounds. Creationists and social progressives like William Jennings Bryan of the Scopes trial and Bishop Samuel Wilberforce of the 1860 Oxford Debate with Thomas Henry TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 95

84 Dr. Chenier notes the racism of historical Christian leaders. It is not reasonably disputable that Christian churches were racist and supported their racist beliefs with a mixture of theology and science. The science was bad. So was the theology. It might be said, paraphrasing Richard Niebuhr, that religion has the capacity to make good people better and bad people worse. 85 It is entirely and abundantly clear that LGBT people have been the subject of discrimination at all levels. Up until the 19th century the sexual activity of most concern to Christians was adultery. Homosexuality was not then an issue. By the early 1900s homosexuality as a condition and the homosexual “type” became an issue. How one obtained pleasure became an object of study. Medical scientists created categories of sexual types. The homosexual was just one among many but it was homosexuality that came to occupy the public imagination as the opposite of heterosexuality. Just as non-whites were seen as a threat to the social order so too homosexuals were seen as a threat to heterosexuality. 86 The notion that the homosexual was a particular type of person became further entrenched in North American culture during World War II. For the first time recruits were screened for signs of homosexuality. In-

Huxley were influenced by their distaste for scientific racism which they associated with Darwinian evolution and Hebert Spencer’s social Darwinism. Christi- anity has been and still is used to support the views of racists and segregationists but that does not prove that Christianity is either host or the cause of racism. Religion cannot always be seen as a socially conservative force and that may not have been Dr. Chenier’s suggestion in any event. The abolition of the slave trade in the British Empire could be argued to have been brought about through the advocacy of predominantly religiously motivated Christian activists such as William Wilberforce, the father of Samuel Wilberforce. The 1960’s civil rights movement in the United States was the work to some substantial degree of Afri- can American Christians. Dr. Chenier deals with J.S. Woodsworth’s 1909 book, Strangers Within Our Gates and refers to it as the most well-known Christian defence of scientific racism. While the book is neither germane to the issue of this case nor particularly compelling reading, it is a stark reminder of how ingrained some racist ideas were among even the most socially and politically progressive people of that time. Woodsworth was of course a Christian activist who advocated for better social welfare programs and was one of the founders of the CCF and later the New Democratic Party. 96 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

ternal campaigns were undertaken to expose and eliminate anyone believed to be homosexual. 87 A major contributing factor to the moral panic over homosexuality in the 1950s and 1960s can be traced to McCarthyism. Senator McCarthy accused the Democrats of having homosexual men working for them. McCarthy claimed that as homosexuals they were susceptible to black- mail by Soviet agents. In addition to being associated with pedophilia they were now associated with Communism and political instability. The American government pushed to drive out homosexuals. Canada followed in the American footsteps. 88 Thousands of gays and lesbians were pushed out of the civil service. The campaign continued until well into the 1970s. The same attitude also shaped the educational system of the time. Official and unofficial polices to bar people suspected of being gay or lesbian were put into place. They remained in place until they were challenged in the 1980s and 1990s. 89 The attack on racism in the 1960s emboldened and empowered the civil rights movement in the United States. In the 1970s lesbians and gays adopted similar political strategies. They have successfully argued that they were similar to ethnic and racial minorities. They remained different in one important respect. The American Psychiatric Association labelled homosexuality as a mental illness. It was not delisted until 1974. After that, gays and lesbians sought protection from discrimination at all levels of government. 90 Dr. Chenier states that based on decades of historical research it is clear that a policy that prohibits people who engage in same-sex sexual activity from membership, employment or participation has two principal effects on gays and lesbians. They will either be deterred from seeking employment, membership or participation or they will pursue the opportunity and hide their sexual orientation. In both instances the individual is harmed; in the first, by exclusion and lost opportunity and in the second by being forced to hide a part of oneself, through limited disclosure and various concealment strategies. Both cause considerable stress with ad- verse psychological, health and job-related outcomes. 91 Over the past 40 years the Canadian state has played a leading role in reshaping discriminatory and prejudicial attitudes. Sexual orientation has been held to be a prohibited ground of discrimination since 1995. More and more lesbians and gay men came out and the increased contact with heterosexuals diminished stigmatization. The state can both perpetuate and combat discrimination and prejudice. States do not end racism or TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 97

prejudice but they play a pivotal part in doing that. Dr. Chenier states that sanctioning discriminatory policies legitimatizes them. Over the course of the last century and a half all levels of government have played a role in shaping society, including social attitudes. “By legitimizing acts of discrimination, it sends a clear signal to its citizens that discrimination is acceptable and justifiable, and will be defended”30 Dr. Chenier says. 92 While Dr. Chenier is entirely qualified to provide an opinion on historical matters and the manner in which those historical trends have had contemporary implications, the last statement is not about history, historical trends or how those trends have shaped current Canadian society. The statement that “legitimizing” acts of discrimination sends a clear message that it is acceptable, is a value statement. It expresses Dr. Che- nier’s view that allowing an act of discrimination means that the government is condoning discrimination. Things are a lot more legally complicated than that view permits. 93 Dr. Chenier says that the TWU Law School Admission Policy does not bar gays and lesbians from admission. She says that one can say that it discriminates against lesbians and gays as a group. Others whose behaviours are banned, such as those who masturbate or use pornography, are also discriminated against but they are not the same as gay and lesbian people. They are not a distinct social type and do not exist in political society as a group. They are not a politically vulnerable population or group. Gays and lesbians are. It is clear that TWU does not recognize same-sex marriage. It treats gay and lesbian people in a way that is different from others. Gay and lesbian people are a group who have historically been the subject of discrimination. 94 Dr. Chenier notes that because gays and lesbians are the only minority group who must look beyond their families to find support, they are distinct from other minority groups. Support is found in lesbian and gay support groups, in the gay and lesbian media and in lesbian and gay culture. Participating in those activities is not sex, but she notes that by seeking out those opportunities a person would be risking being discovered as gay. “Because homosexuality violates the admissions policy, to be discovered as gay could result in expulsion.”31 She goes on to state that they would suffer financial loss and the shame of expulsion. “Each

30Chenier affidavit para. 84. 31Chenier affidavit para. 87. 98 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

of these increases the likelihood of suffering stress, anxiety, depression, and may even lead to suicidal ideation, attempts, and death.” 95 Dr. Chenier notes that choosing not to attend a school such as TWU would protect an individual from the damaging effects of living on the closet and the possible trauma of being expelled. She suggests that a public health campaign would be a partial solution. If TWU bars non-celibate gays and lesbians from accessing seats at the law school she says it could be compared to the cap on Jewish students at Queen’s University in the 1950s. She notes that the policy of TWU is entirely out of step with government policies. She says that TWU is instituting policies that existed for a short time but have long since been ruled a violation of the rights of Canadian citizens.32 Those comments are beyond Dr. Chenier’s area of expertise. Codes of conduct in private religious institutions have not “long since” been ruled a violation of the rights of Canadian citizens. 96 Dr. Chenier says that as long as there have been exclusionary policies members of minority and dominant groups have protested against them. As long as the majority remained indifferent those policies and practices remained in place. Advocacy and activism have been important in prompting change. Dr. Chenier points out that in the mid-1960s Christian clerics vociferously advocated for gay and lesbian equality. Yet, today those opposed to gay and lesbian equality draw on Christian ideology to justify their position. “Christian attitudes still [sic] to play a role in public policy and public conversations about who should be included and who should be excluded, and their positions vary”.33 97 She says that from an historical point of view it makes sense that present day Christians who oppose homosexuality and equality for lesbians and gays occupy a minority position. There is no empirical research cited to support the statement but no reason to doubt it either. 98 Dr. Chenier goes on to say that just as the majority of Christians no longer believe in scientific racism, they no longer believe that the sole purpose of sex is procreation nor do they hold that homosexuality is sinful or abhorrent. That may well be true. She goes on to say that shifting views about race and sexuality show that Christian ideology changes in response to the worldview of those in positions of power.

32Chenier affidavit, para. 90. 33Chenier affidavit, para. 93. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 99

99 In summary, I am prepared to accept many of Dr. Chenier’s comments as part of the social context. They provide an historical perspective on racial and other discrimination. They provide a valuable historical analysis of how homosexuality came to be treated in the last 150 years. Dr. Chenier is able to speak powerfully about the need for gay and lesbian people to be able to associate freely and to be out of the closet. She provides a stinging indictment of Canadian law and society in its past treatment of sexual minorities. When she directs her attention to the result in this case, I am more skeptical. She is an advocate for a position. It appears to be a position of a form of deep equality that would give equality presumptive priority over freedom of conscience and freedom of religion which are part of a pluralistic and multicultural society. She takes strong views on matters that are not matters for historical analysis. On matters of legal interpretation and value judgments I have not accepted the opinions she has offered.

g. Gender and Sexuality in the Context of Education 100 Dr. Mary Bryson is a Full Professor of Sexuality and Gender Studies in the Department of Language and Literacy Education in the Faculty of Education at the University of British Columbia. She is jointly appointed as a Full Professor in the institute for Gender, Race, Sexuality and Social Justice in the Faculty of Arts. Dr. Bryson has been employed as the Di- rector of the Institute for Gender, Race, Sexuality and Social Justice. Her Ph. D. is in Education from the Department of Educational Psychology at the University of Toronto. Her expertise spans two interdisciplinary areas. The first involves critical studies in gender and sexuality and the second is the role of education and educational contexts in the democrati- zation of knowledge access and citizenship, and in the consideration of related human rights for sexual and or gender minority individuals and communities. Dr. Bryson is thoroughly qualified to provide expert opinion in those areas. 101 Dr. Bryson was asked whether sexual minorities would be excluded from the TWU law school as a result of the covenant. Her answer, in short is yes. Signatories to the covenant pledge that sexual intimacy cannot be expressed outside the bonds of “an arbitrarily restricted state of marriage.”34 The covenant excludes currently and prospectively married gay, lesbian and bisexual people.

34Bryson affidavit, para. 8. 100 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

102 Dr. Bryson was asked whether the admissions policy of TWU required sexual minority students to lie if they wish to attend. Her response is that the requirement to sign the covenant “obligates currently or prospectively married LGB people...to practice dishonesty and concealment in relation to their marital status...” The requirement to lie to conceal marital status implicates the person in practices of “systematically dis- torted communications”, that form part of lifelong negative consequences. 103 Dr. Bryson was asked whether the admissions policy at TWU contrib- utes to the perpetuation of stigma. Dr. Bryson says that the policy effectively prevents LGB TWU students from having and expressing the very “healthy sexuality” that the covenant appears to confirm. 104 Dr. Bryson goes on to say that the policy perpetuates and exacerbates already existing stigmatization and marginalization of LGB people beyond TWU, “in its insistence on the right to practice forms of discrimination against LGB people that (i) have been reversed in the Canadian legal system in other contexts and that (ii) continue to cause harm elsewhere, such as the exclusion of LGB people from the right to marriage.”35 The suggestion appears to be that the TWU policy or covenant, in Dr. Bryson’s view, will affect not only TWU students but LGB people elsewhere because it continues to stigmatize them as a group. 105 According to Dr. Bryson, whenever an institution or group is legally permitted to treat LGB people in ways that do not respect their fundamental rights to equality it is a reminder of the stigmatization that takes place. While that is true, it should be noted that such reminders are not limited to the university context. Many religious or cultural groups practice forms of discrimination. 106 Dr. Bryson notes that there is an extensive body of research that documents the specific and persistent harms caused by discrimination, particularly against LGB students. It results in physical, psychological and social harms. There can really be little question that LGB students exposed to an environment of discrimination suffer long term and very significant negative outcomes in education, health and others areas of life. 107 Dr. Bryson says that the harm to an LGB person in being required to sign a covenant like the one at TWU would be a systematic deprivation of the “Rights to Health” and “Rights to Recognition”. In other words, it

35Bryson affidavit para. 11 TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 101

is a systematic deprivation of the LGB students’ rights to count themselves “within that group for whom a democratic society includes the Right to Marriage as a key milestone in the trajectory of healthy sexuality and the formation of families.”36 Dr. Bryson notes that sexual and gender minorities experience chronic stress as a result of their stigmatization. The systemic and lifelong harms to LGB people are very serious. 108 Dr. Bryson goes on to deal with the effects of discrimination on the larger community. Harms caused by practices of LGB exclusion nega- tively impact the wider campus climate. The pressure to conceal LGB orientation creates a stressful campus climate for sexual minority members of certain Catholic secondary schools and districts where LGT students’ rights are restricted, abrogated or curtailed. The LGB stigma has direct impacts on sexual minority members’ academic and professional wellbeing. 109 Dr. Bryson states that the TWU Community Covenant systematically prohibits LGB students and faculty from access to the Right to Health, meaning healthy identity, sexuality and intimacy, and the Right to Mar- riage and thus creates a “hostile climate for sexual minority students, teachers and other members of the community. It is my opinion that the TWU Community Covenant is discriminatory.”37 I accept Dr. Bryson’s opinion that the TWU covenant prohibits LGB students from engaging in healthy sexual intimacy. LGB students will feel excluded and it is reasonable to conclude that they would not feel equally valued or respected 110 Dr. Bryson says that in her opinion the TWU Community Covenant is discriminatory. I am prepared to accept that as indicating that it does treat LGB people differently. I will not accept it as a legal conclusion. There has been no finding that TWU’s policies are contrary to any human rights legislation that applies to it. 111 Dr. Bryson was asked whether sexual minorities appear to be underrepresented in the legal profession in Nova Scotia. She was provided with data by the NSBS that indicated that in 2014 2.1% of lawyers sur- veyed self-identified as LGBT. Statistics Canada information shows the percentage of adult Canadians who identify as homosexual to be 1.3% and adult bisexuals to be 1.1% which results in a total of 2.4%. The 2009 numbers were similar and the numbers in the United States are 3.4%.

36Bryson affidavit, para. 15. 37Bryson affidavit, para. 18. 102 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Canadian data from The Forum poll, an interactive telephone response survey showed that 5.4% of Canadian self-identify as LGBT. 112 Dr. Bryson notes that the challenge to interpretation of the NSBS data is that Canadian census data are collected by means of a random sample intended to represent the full diversity of Canadian society, while the NSBS data are collected by questions posed to a purposive sample. It targets members of a profession who are not representative of society as a whole. To compare the percentage of NSBS members who identify as LGBT to the number in the larger population is “likely invalid”.38 113 A more meaningful strategy would involve a comparison of LGB lawyers and the prevalence of LBG people in surveys that disaggregate the total sample into clusters. Research that looks at the distribution of self-identified LGB people in groups of respondents that are clustered by socio-economic status (SES) and education and that are in the same age group and generational cohort has consistently shown that within a dem- ographic sample that is similar in SES with the overall population of lawyers in Nova Scotia, which is to say 4+ years of post-secondary education, and an occupation with considerable social status, the prevalent of LGB respondents is from 2% to 8%. Therefore it is Dr. Bryson’s opinion that “it is probable that sexual minorities are underrepresented in the legal profession in Nova Scotia.”39 114 In reaching that conclusion Dr. Bryson sets out the empirical studies and the methodology used to interpret them. While she is not a statisti- cian or an expert in the interpretation of polling data, the issue of diversity and how it is measured is within the scope of her expertise. Her conclusion should be given considerable weight. 115 Dr. Bryson was asked whether or not prevalence is an effective indi- cator for assessing the climate of the legal profession concerning sexual minorities. Public reports have addressed the lack of awareness and protection concerning the wellbeing of underrepresented groups, including sexual and gender minorities. Disclosure of gender identity and sexual orientation is perceived as a significant hindrance in professional development. “Climate based discrimination” in the legal profession perpetuates LGB stigma and the related stress of concealment. Dr. Bryson was not asked to comment on the relevance of significant steps taken by the

38Bryson affidavit, para. 19. 39Bryson affidavit, para. 19. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 103

NSBS to make the profession in Nova Scotia more inclusive and more welcoming to sexual minorities. She does not consider whether there has been an increase or decrease in the amount of climate based discrimination in the legal profession in Nova Scotia. Dr. Bryson’s opinion is that there is an ongoing need for coordinated enactment of non-discriminatory policies and education in legal education and professional development and the implementation of “Cultural Safety” workplace protection policies by provincial and federal law societies concerning minority pro- fessionals including LGB people. There is no question that meaningful efforts must continue to address the issues of equality for LGBT people within the practice of law. 116 Dr. Bryson was asked to comment on the effects on recruiting sexual minorities to the profession that sanctioning TWU’s community covenant might have. Dr. Bryson notes that studies have provided evidence of the significant and negative health impacts of living in states where there are state-imposed amendments that ban same-sex marriage. Within both Canada and the United States there is “significant evidence of systemic and widespread effects of regulatory authority’s sanction of discrimination in institutional settings (e.g., school district, University) against LGB people.”40 Dr. Bryson goes on to reference the research on the effects of institutionalized discrimination in regulated professions other than the legal profession. She notes the extensive research on LGBT issues in education and a study that finds that the regulatory authority’s enactment of or support for discrimination against LGBT teachers caused negative impacts that ranged from mental health to professional development. LBG stigma and the impacts of discrimination are felt in the medical and health care professions as well. Where authorities sanction discrimination there are serious detrimental consequences for the wellbeing and professional development of workers. 117 What this means is that in environments where LGB people are discriminated against and actions are not taken by the authorities to prevent it, they suffer personally and professionally. The research in the area is set out and Dr. Bryson adopts and endorses the conclusions. There is no reason to question her expert assessment. 118 She then takes it a step much further. She says that “Such systemic and life-long harms that represent the effects of the failure of a regulatory

40Bryson affidavit para. 20 104 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

authority to sanction TWU’s Community Covenant by recognizing the legitimacy of TWU’s law degree are very serious.”41 Dr. Bryson has taken research that deals with regulatory authorities that have control over an educational institution or a professional workplace and extrapo- lated it to the circumstances of this case. It can be said that the failure to provide a non-discriminatory environment leads to substantial harm. There is nothing to support the conclusion that the NSBS would be failing to provide a non-discriminatory environment by recognizing a degree from TWU. Recognizing that degree would not result in any discriminatory action, however broadly defined, taking place in Nova Scotia. The research cited does not allow one to conclude that accepting educational qualifications from a religious school would have any effect on the LGBT community. 119 Dr. Bryson goes on to say that it is “reasonable to conclude” that the effect of the “freedom to discriminate” provided by the state to TWU by recognizing its degrees will impact the larger gay, lesbian and bisexual community. It is certainly reasonable to assume that LGB people would take note of TWU’s policy and would be aware of the stigmatization of them by that policy. It would be reasonable to conclude that they would also be aware of the NSBS or state recognition of those degrees. It is not clear what the impact would be beyond that. It would be reasonable to conclude that they would be aware that discrimination against LGBT people is strictly prohibited in the legal profession in Nova Scotia, that TWU graduates would be no more likely to discriminate than anyone else, that the NSBS had made substantial efforts to open the profession to members of the LGBT community, that TWU’s policy on LGBT rights is the same as or similar to those of numerous religious groups that function within Nova Scotia and that the religious tenets that underlie the policy are and have been held by at least some lawyers. 120 Dr. Bryson fully endorses the position taken by the NSBS. The last paragraph of her affidavit reads in part as follows; The fact that the Nova Scotia Barrister’s [sic] Society, as an institutional body has voted to refuse to provide accreditation to Trinity Western University Law School, knowing full well of the existence of a discriminatory Community Covenant, appropriately and produc- tively anticipates the need to address fairly and proactively the recruitment of sexual minorities into the legal profession and impor-

41Bryson affidavit, para. 23. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 105

tantly, represents a constructive refusal to add to, or to condone, the deleterious impacts of minority stress already experienced by LGB people in the larger community.42 121 That sentence does make reference to the issue of recruitment. It con- cludes that the NSBS has addressed the issue of recruitment fairly and proactively. That conclusion is found within a statement that amounts not so much to a legal argument as a legal conclusion unsupported by an argument. The statement about recruitment is, once again a conclusion. It does not state how recruitment would be addressed by the refusal to accept a TWU law degree as a law degree.

h. Religious Subcultures 122 Dr. Samuel Reimer is a sociologist and sociology professor at Cran- dall University (formerly Atlantic Baptist College) in Moncton. He received his Ph. D. from Notre Dame in 1997. He was asked to provide an opinion on religious subcultures. 123 Dr. Reimer defines a subculture as a group within a larger society that is distinctive in beliefs, behaviours, customs, language or other factors. A religious subculture is usually delineated by its religious beliefs, rituals and/or devotional practices, identity and/or moral and ideological boundaries. He says that evangelical Christians are a religious subculture in Canada. He notes that other leading scholars of evangelicalism have made similar arguments. Evangelicals hold distinctive beliefs, including the authority of the Bible, the unique salvific work of Jesus Christ, the importance of the conversion experience and the importance of active faith expressed through church attendance, Bible reading, prayer and evangelism.43 124 Dr. Reimer states that evangelicals commonly establish and hold codes of conduct within their subculture. Those kinds of codes are common in subcultures whether they are religious or not. Sexual moral purity is a behavioural expectation and includes abstaining from sexual intimacy outside of traditional marriage, as well as certain behaviours thought to lead to sexual impurity. Dr. Reimer suggests that when codes of conduct are distinctive they increase the strength and commitment to the subculture.

42Bryson affidavit, para. 24. 43Reimer affidavit, para. 48. 106 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

125 Evangelicalism is an engaged subculture in that it doesn’t physically remove itself from the broader culture. Members get a greater sense of their distinctiveness through interaction with non-evangelicals. That also strengthens their identity. When behaviours are different, the religious convictions that give rise to them stand out and that enhances the importance of those convictions. A religious group can be in too much tension with society if it is too distinctive. Religious groups will be stronger when they create both distinction and engagement. According to Dr. Reimer, Evangelicalism has maintained that tension which is why it is thriving.44 126 He says that the “literature agrees that distinctive and demanding religious groups have greater strength and vitality because they are distinctive and demanding.”45 Dr. Reimer’s opinion is within his area of expertise. It is supported by literature in that area. His opinion should be given considerable weight and I accept the opinion as stated. 127 In conclusion Dr. Reimer says that TWU is clearly within the evangelical subculture. He says that “It is not fundamentalist”.46

4. The Legal Issues 128 There are really two broad legal issues. The first is the administrative law question of whether the NSBS, in refusing to accept a law degree from TWU, was attempting to regulate a law school or was upholding and protecting the public interest in the practice of law in Nova Scotia. The former it cannot do. The latter it can. 129 The second issue is a constitutional law matter. It is whether the NSBS appropriately considered and applied the balancing of the Charter rights to equality and freedom of religion. 130 Before those issues can be addressed, the standard of review has to be established.

5. Standard of Review 131 The standard of review means how much deference reviewing judges have to give to the body that made the original decision, here the NSBS.

44Reimer affidavit, para. 86. 45Reimer affidavit, para. 91. 46Fundamentalism and evangelicalism are not the same though they are sometimes confused. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 107

Judges on judicial review sometimes cannot overturn a decision just because they believe that the decision was wrong or that if faced with the same issue they might have decided differently. In those cases, the concern is with the existence of a reasonable justification for the decision, and with transparency and intelligibility. The decision has to be “within a range of possible and acceptable outcomes which are defensible in respect of the law and the facts.”47 It is sometimes said that in those cases, administrative decision makers have the “right to be wrong”. Judges don’t have very much scope for interference. 132 As Justice Fichaud noted in in Egg Films Inc. v. Nova Scotia (Labour Board), reasonableness is neither “the mechanical acclamation of the tribunal’s conclusion nor a euphemism for the reviewing court to impose its own view.”48 Reasonableness is not the judge’s “quest for truth with a margin of error around the judge’s ideal outcome.”49 It requires respectful attention to the tribunal’s analytical path to decide whether the outcome was reasonable. If there are several reasonable permissible outcomes the tribunal, not the court, chooses among them. “If there is only one, and the tribunal’s conclusion isn’t it, the decision is set aside.”50 133 When the standard of review is correctness, judges can substitute their own views if they believe that the decision was wrong. That is what makes the standard of review an important issue even if it does seem at times to be of interest only to a subset of a subset of lawyers, who might be called judicial review aficionados or judicial review enthusiasts. 134 There has been some concern by those less infatuated with the process about the inordinate amount of attention given to the issue: Our objective should be to get the parties away from arguing about standard of review to arguing about the substance of the case.51 135 However, it seems that human nature and legal ingenuity create a process of ebb and flow by which rules are simplified, the simplified rules are applied to individual cases justifying an array of exceptions, and in

47N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.), para. 11. 482014 NSCA 33 (N.S. C.A.), para. 26. 49Egg Films. para. 30 50Egg Films, para. 26 51Binnie J. cited in A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 (S.C.C.), para. 38. 108 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

the process interpreted to become complicated again. The Supreme Court of Canada decision in New Brunswick (Board of Management) v. Dun- smuir52 was intended to be a re-examining of the “foundations of judicial review and the standards of review applicable in various situations”53 and the beginning of a “simpler test”54 based on a more principled approach. That simpler test has been explained into becoming a bit more complicated.

a. Standard of Review Based on Precedent 136 Rather than requiring reviewing courts to reinvent the wheel, the Su- preme Court of Canada has said that where the case law has already worked out a standard of review, that is the standard that should be applied.55 For example, the correctness standard has already been found to apply to constitutional questions about the division of powers between Parliament and the provinces. There is no need to go through all that again. 137 In this case it has been argued that the test has already been established in Trinity Western University v. College of Teachers (British Co- lumbia)56 (“TWU v. BCCT”). That case will be considered in detail in terms of the principles that are said to apply to the merits of the case. In that case the Supreme Court evaluated the expertise of the College of Teachers in relation to the issue and relative to the expertise of the court itself. The Court concluded that the existence of discriminatory practices was based on the interpretation of TWU documents and human rights values and principles. “This is a question of law that is concerned with human rights and not essentially educational matters.”57 The perception of the public regarding religious beliefs of TWU graduates and the inference that those beliefs would produce an unhealthy school environment had little to do with the expertise of the college. That was distinguished

522008 SCC 9 (S.C.C.) 53Dunsmuir, para. 24 54Dunsmuir, para. 43 55Dunsmuir, paras. 57 and 62 562001 SCC 31 (S.C.C.) 57Trinity Western University v. College of Teachers (British Columbia), para. 18. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 109

from situations in which the college was dealing with discriminatory conduct by an individual teacher. 138 The issues in this case are not so identical that the same standard of review can be assumed to apply. It is a different administrative decision maker, making a different kind of decision. In Trinity Western University v. College of Teachers (British Columbia) the case was about speculative assumptions regarding how teachers might behave in the classroom based on the education they received from TWU. Here, the matter involves a decision of the NSBS that explicitly makes no assumptions about potential TWU law graduates and deals with a statement of principle about discrimination. The issue of standard of review cannot be determined by the application of the Trinity Western University v. College of Teachers (British Columbia) precedent.

b. Standard of Review Based on Legislation 139 When there has been no standard of review already established, the judge should first ask whether there is a provision in the legislation that sets out the standard to be applied, a privative clause barring any judicial review, or an absolute right to appeal. In this case there is no privative clause in the Legal Profession Act that would limit judicial review of decisions of the NSBS council. There is no direction in the legislation as to the standard of judicial review.

c. The Nature of the Tribunal as a Factor 140 The question then turns to the expertise of the tribunal in question.58 Securities Commissions for example, are seen as being expert in a highly specialized area. They are seen as having more expertise than the courts in dealing with the regulation of capital markets.59 Human Rights tribunals, on the other hand, are seen as having no more expertise than courts in dealing with the interpretation of human rights legislation.60 141 The purpose of the NSBS as stated in the Legal Profession Act, is to “uphold and protect the public interest in the practice of law”. The NSBS is the governing body of a self-regulating profession. Law societies and

58Dunsmuir, supra., para. 54-55 59Cartaway Resources Corp., Re, [2004] 1 S.C.R. 672 (S.C.C.). 60Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854 (S.C.C.). 110 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

self-governing professions in general are given considerable deference. In Pearlman v. Law Society (Manitoba)61 the Court noted the legislative rationale behind making the profession of law self-governing. It is a matter of public policy. Governments must respect the self-governing status of these bodies. The professions themselves have particular expertise and sensitivity to the conditions of practice in their professions. An autono- mous legal profession is particularly important to a free and democratic society. Judicial intervention should take place only when it is clearly warranted.

d. The Purpose of the Legislation as a Factor 142 The next issue is the purpose of the legislation and the provision under which the tribunal made its decision. When a tribunal is required to develop broad issues of public policy and apply those policies the courts should be hesitant to intervene. 143 An example of that kind of administrative action can be found in Sobeys West Inc. v. College of Pharmacists of British Columbia62. The college passed regulations that were intended to limit the customer incen- tive programs that could be provided by pharmacies. Sobeys argued that there was no evidence of actual harm, the regulations went beyond what would be required to address any harms and the net effect of the regulations was to harm the public interest. Because what was being challenged was essentially the wisdom of the regulations, the standard of review was reasonableness. 144 The purpose of the Legal Profession Act is to establish the parameters within which the self-governing profession of law will function. Some NSBS decisions could be of a strictly policy nature, such as establishing ethical obligations for lawyers or setting out the educational requirements for admission to the practice of law. In making those decisions it should have broad discretion. Courts do not intervene on the basis that other decisions might have better reflected the public interest in the practice of law. The NSBS has the legal right to made bad policy decisions about the practice of law.

61[1991] 2 S.C.R. 869 (S.C.C.). 622014 BCSC 1414 (B.C. S.C.) TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 111

e. The Nature of the Question as a Factor 145 The court has to consider the nature or the kind of question before the administrative body. That has traditionally been where any hope of sim- plifying the process has been lost. How the question has been characterized has sometimes been determinative of the issue. 146 Where issues of legal interpretation are involved the correctness standard applies to constitutional questions, questions of law that are both of “central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise,”63 questions regarding the jurisdictional lines between specialized tribunals and the now exceptional category of questions of vires or true jurisdiction.64 147 Constitutional questions are those that deal with the division of powers between Parliament and the provinces in the Constitution Act, 1867. Constitutional issues are necessarily subject to a correctness review because of the “unique role of s. 96 courts as interpreters of the constitution.”65 That test also applies to decisions of administrative tribunals determining the constitutionality of a law.66 The issues involved here do involve constitutional considerations but are not division of powers issues or determinations as to whether a law that the NSBS has been called upon to apply is or is not constitutionally valid. 148 A question of law that is of central importance to the legal system and outside the adjudicator’s specialized area of expertise attracts review on the standard of correctness. The purpose is to safeguard consistency in the fundamental legal order. What matters is whether the case involves an interpretation that is limited to the specific administrative or statutory scheme or has precedential value outside that regime.67 149 It is difficult to deny that there are potentially far-reaching legal implications that will arise from the eventual resolution of this matter on

63Dunsmuir, para. 55 64Canadian National Railway v. Canada (Attorney General), 2014 SCC 40 (S.C.C.) para 55; Canada (Attorney General) v. Mowat, 2011 SCC 53 (S.C.C.), para. 18; A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 (S.C.C.), para. 30 65Dunsmuir, para. 58 66Dor´e c. Qu´ebec (Tribunal des professions), 2012 SCC 12 (S.C.C.) [hereinafter Dore], para. 43 67Canadian National Railway v. Canada (Attorney General), para. 60. 112 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

appeal. Counsel for the Nova Scotia Human Rights Commission, intervening in support of the NSBS, confirmed at the very beginning of her argument that the issues here are of fundamental importance. She noted that this was probably the “most significant issue that has come since the Charter”. The issues will in her view, determine the “very texture and fabric and the way we knit Canadian society together.” A number of the seven intervenors appearing in support of TWU seemed to have agreed with her on that point, though perhaps only on that point. They expressed the view that the eventual decision in the case will affect the rights of religious schools and other religious institutions not only in Nova Scotia but elsewhere. While there are indeed greater social and political forces at work in determining the nature of the Canadian social fabric, when viewed as a whole, the significance of this case is greater than a dispute between these parties. 150 The manner in which a self-governing profession has to balance the implications of its decisions on the Charter rights of those affected by them is broadly significant. Whether, or the extent to which, the governing body of any self-regulating profession, in any province, can pass regulations that are directly aimed at the policies or practices of professional schools generally, or institutions in other Canadian jurisdictions is broadly significant. But, stating the question that way, turns it into what sounds like a jurisdictional question. 151 That leads to jurisdictional considerations. Where the matter involves defining the jurisdictional borders between specialized tribunals or true questions of jurisdiction the correctness standard applies. There are no other specialized tribunals whose jurisdiction is claimed to overlap with that of the NSBS in this case. Jurisdiction is meant in the narrow sense of whether or not the tribunal had the “authority to make the inquiry”.68 True issues of jurisdiction arise when a tribunal must ask whether its statutory grant of power even gives it the authority to decide the matter in question. 152 Traditionally, judicial review focused on the issue of whether a question was one of jurisdiction. A decision could be quashed when the tribunal exceeded its jurisdiction. That amounted almost to a throwing down of the gauntlet for lawyers and judges to define jurisdiction in ever broader ways. It came to mean not only acting without statutory authority

68Dunsmuir, para. 59 TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 113

but asking the wrong question, making findings of fact without an evi- dentiary basis and other errors which were considered to justify intervention. Jurisdiction came to mean more than “true jurisdiction”. That phrase now addresses the issue of whether the tribunal or decision maker was authorized to even be considering the issue that is decided. 153 The “category of true questions of jurisdiction is narrow indeed.”69 As Justice Rothstein noted in A.T.A. v. Alberta (Information & Privacy Commissioner)70, anything that a tribunal does involves a determination of whether it has the authority or jurisdiction to do what is being challenged. Unless the situation is exceptional the interpretation by a tribunal of its own statute or ones closely connected with it, with which it will have particular familiarity, are presumed now to be questions of statutory interpretation subject to a reasonableness standard. 154 The issue then is what if anything is left of jurisdictional issues. There is some question as to whether questions of “true jurisdiction or vires have any currency”71 at all anymore. Justice Rothstein said that he was unable to provide a definition of what might constitute a true question of jurisdiction. The idea is to eliminate the need for the old debate about whether something is jurisdictional or not. It appears safest to assume, for now, that getting into whether the decision was “jurisdictional” for purposes of the standard of review is not going to get anyone very far. That does not mean that administrative decision makers have unlimited authority to regulate beyond their ordinary scope. They simply have to be reasonable when making the decision to regulate, the same way that they have to be reasonable about how to regulate.

1. The Standard of Review on the Issue of Whether the NSBS Acted Outside its Statutory Authority. 155 The issue of whether in refusing the accept the TWU law degree the NSBS was in effect regulating a law school as opposed to defining a law degree would traditionally have been interpreted as an issue of vires. It deals with the question of whether an administrative body has attempted

69A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 (S.C.C.), para. 33. 70Ibid., 71Canadian National Railway v. Canada (Attorney General), 2014 SCC 40 (S.C.C.). 114 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

to indirectly exert influence on an institution to achieve what it could not do directly or has merely acted within its statutorily-defined jurisdiction. If the jurisdictional lines between specialized bodies are a question subject to a correctness standard of review, then the precise issue of whether what was done here amounted to extra-provincial regulation impinging on the authority of another province, might also be subject to a review based on that same correctness standard. It is not merely a question of whether the NSBS acted outside the authority granted by the provincial statute but whether it acted outside the province itself. 156 However, the NSBS is in that situation interpreting its home statute with the presumption of a reasonableness standard of review. The shrink- ing of the scope of review on jurisdictional matters does not mean that every administrative actor has jurisdiction based on whim. Of course, the NSBS could not regulate doctors in Nova Scotia or lawyers in Nunavut. Administrative bodies still have to act within their mandates. They are now seen as having more scope within which they can determine their mandates without court interference. The scope is defined by reasonableness. 157 The NSBS is not a specialized tribunal but it is the governing body of a self-regulating profession, entitled to deference from the courts. The decision that was made did not involve an individual disciplinary case but did involve a policy decision. The NSBS cannot make policies about law schools but in determining whether what it is doing is regulating a law school or regulating the practice of law, it should be allowed some room. 158 That precise issue, whether the decision by the NSBS was one that it had the authority to make, is not a question that is of broad application beyond the parties to this case. It is a matter of interpretation of the Legal Profession Act and does not implicate the kinds of matters that have the potential to affect the general law much less the very fabric of Canadian society. It is not an issue of law that is central to the legal system. 159 On that first issue, the standard of review is the more deferential one of reasonableness.

2. The Standard of Review on the Issue of Whether Charter Values Were Properly Balanced 160 The second issue is the matter of the balancing of Charter considerations. Whenever the Charter is being interpreted there is the potential for broader implications and on that point the observations about the impor- TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 115

tance of the case are apt. It could be argued that every time the Charter is interpreted or applied the matter is a question of law that is fundamental to the legal system. 161 In Dor´e c. Qu´ebec (Tribunal des professions)72 the Supreme Court confirmed that administrative decisions have to comply with the Charter. The issue was the standard of review with respect to discretionary decisions of administrative bodies that implicate Charter values. The problem is in drawing the distinction between a discretionary decision where Charter values are implicated and Charter matters themselves. Clearly, when a tribunal is considering the constitutionality of a law, the standard of review is correctness. But when deciding whether a decision maker has taken sufficient account of Charter values in making a discretionary decision, that test is too stringent. 162 The choice was between saying that every time Charter values are implicated in a decision the usual reasonableness standard was trans- formed into a correctness one and saying that tribunals and courts both have specialized expertise when Charter values are being balanced. Ad- ministrative decision makers exercising discretionary powers under their home statutes have particular familiarity with the competing interests at play in weighing Charter values.73 163 Reasonableness has to be assessed in the context of the kind of decision making involved. It is once again, a contextual inquiry.74 That means that while deference is still justified on the basis of the decision maker’s expertise and proximity to the facts of the case,75 and administrative decision-makers are best positioned to consider the impact of the Charter on the facts of a given case, both the decision-maker and reviewing court have to be aware of the fundamental importance of the Charter. 164 The question on judicial review is whether in assessing the impact of the Charter protection, and given the “nature of the decision and the statutory and factual contexts”, the decision “reflects a proportionate balancing of the Charter protections at play.”76 The issue is one of proportion-

722012 SCC 12 (S.C.C.), para. 56. 73Dore, para. 47 74Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 (S.C.C.), para. 18. 75Dore, para. 54. 76Dore, para. 57 116 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

ality. The question is whether in the relevant context, the decision maker “properly balanced” the relevant Charter values with the statutory objectives within a “margin of appreciation”. If the decision maker has properly balanced the Charter values and statutory objectives the decision is reasonable. It may be assumed, conversely that, if the decision-maker has not properly balanced the Charter values, within that scope of deference or margin of appreciation, the decision is unreasonable. 165 Here, the decision of the NSBS is not a disciplinary matter within which Charter values have to be balanced. It is not a matter that involves the interpretation of the details of Legal Profession Act or the internal governance of the NSBS. It is not a technical review of the curriculum appropriate for law students or about the specifics of professional training that they will receive. It is directly about how the profession in Nova Scotia will respond to the tension between freedom of religion and equality rights. In applying a reasonableness standard, if the NSBS properly balanced the Charter considerations, within a “margin of appreciation”, its decision will be found to be reasonable. If it failed to do so, it is not reasonable.

6. Does the NSBS have the Authority to Regulate? 166 The purpose of the NSBS under the Legal Profession Act is to “uphold and protect the public interest in the practice of law. It is not an expansive mandate to oversee the public interest generally, or all things to which the law relates. It is a mandate to regulate lawyers and the practice of law as a profession within Nova Scotia. In order to have any authority over a subject matter, a person or an institution, that subject, matter, person or institution has to relate to or affect the practice of law. Both the federal income tax reporting requirements and the Civil Procedure Rules affect lawyers and the practice of law but they are not part of regulation of the profession. In order for the NSBS to take action pertaining to TWU, that institution must in some way affect the practice or the profession of law in Nova Scotia. 167 There are three aspects of the proposed TWU law school to which regulation could conceivably be aimed or directed. The first is the graduate of the university who actually seeks admission to the bar of Nova Scotia. Graduates who do not seek admission here could have no impact on the practice of law here. The second is the quality of the law degree granted to a person seeking admission to practice in Nova Scotia. The third is the institution itself and its policies. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 117

168 Once the graduate applies for an articling position in Nova Scotia the NSBS can determine whether or not he or she should be permitted to article. The profession of law is no place for the bigoted or the intolerant. The NSBS has agreed that TWU graduates will be no less willing and capable to comply with ethical requirements to respect LGBT equality rights than anyone else. TWU graduates receive proper training in the ethical issues regarding non-discrimination and equality. There is no reason to place any additional burden on TWU graduates to make sure that they are willing to comply with their ethical obligations. Refusing to accept a TWU law degree has nothing to do with weeding out bigoted or intolerant lawyers. 169 The NSBS has an obligation make sure that students have the appropriate legal education in order to equip them to practice law in Nova Scotia. The NSBS has the authority to establish qualifications for those seeking admission to the profession. Under that authority it has passed regulations that allow the NSBS to define what law degrees it will accept. The NSBS of course does not have the authority to define what is or is not a “law degree” in Nova Scotia or anywhere else. That is an academic degree and a matter over which the NSBS has no legal authority. Its definition of the degree is for its own regulatory purposes only. 170 If the law degree does not prepare a person to practice, the NSBS can certainly prevent that person from practising in Nova Scotia. The degree to be granted by the proposed TWU law school was approved by the Federation of Canadian Law Societies. That was, until this action was taken, enough to establish that it was a law degree, in the sense that it properly educationally equipped students to practise law. The NSBS then determined that a TWU law degree was not a law degree for its purposes until TWU stopped discriminating, at which point the TWU law degree, which would otherwise be exactly the same law degree that it was before, would become, once again, a law degree. If by that the NSBS is defining a law degree, or more generally defining academic qualifications, it is doing so in a way that is passing strange. It has been acknowledged that there is in fact nothing about a TWU law degree that makes it something less than or other than a law degree. Deeming it to not be a law degree unless something unrelated to the law degree is changed is perhaps a clever way to extend the reach of the NSBS. But for the NSBS to say that it is just defining a law degree would mean that its definition of law degree would have to be an entirely arbitrary turning on and off of the definition based on considerations entirely unrelated to the definition. 118 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

That’s not regulating a law degree. It’s using the law degree to get at something else. 171 The NSBS was not regulating the graduate and was not regulating the law degree. On its face it seems to be purporting to regulate the law school itself. The resolution passed by the NSBS refuses to recognize Trinity Western University’s proposed law school. The resolution says nothing about the qualifications of law students but is directed at the law school. 172 The regulation passed to implement the resolution focuses on whether the university that grants the law degree, in the opinion of the Council, discriminates in its policies. Once again, though couched in terms of approving the law degree, the action is directed toward the institution of the law school and not the quality of the law degree, or the qualification or lack of qualification of the student or potential lawyer in Nova Scotia. 173 The NSBS of course has no statutory authority to regulate a law school or university outside Nova Scotia or inside Nova Scotia for that matter. There are other regulators in Nova Scotia and in other provinces who have the authority to determine how degree-granting institutions function, including whether they comply with human rights legislation, workplace safety regulations, employment standards regulations, charitable status reporting requirements, and the entire intricate legal web of obligations that apply to post -secondary educational institutions. Legal practice and legal education are now quite different things. Many people receive a legal education and never practice or intend to practice law. An interpretation of the Legal Profession Act that supported NSBS general regulatory power over every law school in Canada would undoubtedly prompt a deluge of articles in learned legal journals in support of the traditional independence of those institutions. 174 The NSBS has no authority whatsoever to dictate directly what a university does or does not do. It could not pass a regulation requiring TWU to change its Community Covenant any more than it could pass a regulation purporting to dictate what professors should be granted tenure at the Schulich School of Law at Dalhousie University, what fees should be charged by the University of Toronto Law School, or the admissions policies of McGill. The legislation, quite sensibly, does not contain any mechanism for recognition or enforcement of NSBS regulations purporting to control how university law schools operate because it was never intended that they would be subject to its control. If it did, the operations of every law school in the country would be subject to the varying re- TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 119

quirements of, potentially, 14 law societies. Each could require, for its purposes, that harassment policies reflect its protocols and the human rights legislation in its own jurisdiction, or require admission policies that prefer the equity-seeking group that each law society determines has been most historically disadvantaged. 175 The NSBS cannot do indirectly what it has no authority to do directly. TWU or any other law school can do whatever it wants. It need not worry about a NSBS regulation that requires it to do anything. But the NSBS has used the arbitrary on-off definition of “law degree” to impose a penalty on the graduate. When a body purporting to act under legislative authority imposes a sanction in response to non-compliance with its directives, that’s regulation. The NSBS is attempting to regulate TWU and its policies. 176 Recognizing a degree from a law school that “unlawfully discriminates” is argued to be not in the public interest. The public interest in the practice of law does not extend to how law schools function. Neither the degree of moral outrage directed toward the policy, nor the extent to which it is deemed to be in the public interest to attack it, change that. It does not expand the NSBS authority into areas where it would otherwise not have jurisdiction. It does not act as a self-standing grant of jurisdiction. 177 There is of course a presumption that regulations are valid and, where possible, a regulation should be construed in a way that makes it intra vires.77 The inquiry is not into the relevant political, social or economic considerations and it is not a matter of the court considering whether regulations will indeed achieve the statutory objectives as broadly interpreted. They must be “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose to be found to be outside the statutory mandate.78 While it is possible to strike down regulations on this basis, it takes “an egregious case to warrant such action.”79 178 The Community Covenant, a non-academic policy at a university that is subject to the regulatory regime in British Columbia, is unrelated to,

77Shoppers Drug Mart Inc. v. Ontario (Minister of Health and Long-Term Care), 2013 SCC 64 (S.C.C.) [hereinafter Katz], para. 25. 78Ibid. para. 28 79Thorne’s Hardware Ltd. v. R., [1983] 1 S.C.R. 106 (S.C.C.), p.111, cited in Katz at para. 28. 120 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

irrelevant to and extraneous to the practice of law in Nova Scotia. The fact that people in Nova Scotia are troubled by it does not make directing a regulation to it any less the regulation of university policy. If the public interest in the practice of law in Nova Scotia can be interpreted to include issues at universities that grant law degrees but do not affect the quality of their graduates it would justify expansively broad NSBS regulatory involvement. In argument, counsel for the NSBS said that the NSBS just would not use that public interest jurisdiction to intervene in matters that were “incidents”, such as invitations to politically or morally offensive guest speakers or, presumably, to things like the resolution of individual human rights complaints, the hiring and dismissal of teaching staff or the granting of tenure. But it could potentially intervene in dealing with “systemic” issues. Presumably that would mean that a university policy on harassment that was considered weak or ineffective could come under NSBS scrutiny, as could personnel or human resources policies, insufficiently robust affirmative action admission or hiring policies and even policies on who may or may not be invited to speak at the law school. It would permit the NSBS to require universities in other Cana- dian jurisdictions to comply with Nova Scotia law, even if that law con- flicted with the law of their own province. 179 Counsel agreed that the NSBS could become engaged if a law school’s tuition were considered too high so that low income Nova Sco- tians were further disadvantaged with regard to admissions. Law schools might be required to admit a certain percentage of Nova Scotians. While the NSBS would have to consider the many implications of those actions, not least the constitutional ones, in counsel’s view, it would not be deterred by want of jurisdiction. All that would be accomplished by simply deeming what would otherwise be a law degree to not be a law degree for purposes of the NSBS. If the public interest jurisdiction of the NSBS extends to university policies, and it is not entirely clear why if that were the case it would not apply to “incidents” as well, the NSBS would have the authority to compel any law school in the country to follow its directives on a wide range of matters that engage the public interest, in order to have its graduates eligible for admission to the practice of law in Nova Scotia. 180 The NSBS action is not directed toward preventing discrimination against anyone in Nova Scotia. It is not intended to prevent anyone from being treated unequally in Nova Scotia. It is not directed toward the academic qualifications of the graduate. It is not directed toward any lack ethical training with respect to equality rights. It is directed squarely to- TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 121

ward a university policy. The policy is the subject of the regulation. The outrage, sense of emotional pain, minority stress or hurt feelings that some Nova Scotians experience from knowing that a person trained at a university in British Columbia that does not recognize same sex marriage can still potentially become a lawyer in Nova Scotia, does not change the fact that what the NSBS is purporting to regulate is a university policy. 181 The NSBS did not act reasonably in interpreting the Legal Profession Act to grant it the statutory authority to refuse to accept a law degree from TWU unless TWU changed it Community Covenant. It had no authority to pass the resolution or the regulation.

7. The Charter Issue 182 TWU argues that the NSBS did not properly consider the rights to freedom of religion and freedom of conscience when it made its decision. NSBS says that it did not infringe on any Charter rights and if it did, it reasonably balanced equality rights and the rights to freedom of religion and freedom of conscience.

a. Trinity Western University v. College of Teachers (British Columbia) 183 TWU argues that the Charter issue has already been decided by the Supreme Court of Canada. The case involved not only issues that are similar but the very same university and its school of education. 184 In Trinity Western University v. College of Teachers (British Colum- bia)80 (TWU v. BCCT), the Supreme Court dealt with the issue of whether the British Columbia College of Teachers (“BCCT”) could refuse to certify teachers from TWU because of the discriminatory nature of its Community Standards policy. The BCCT had, as one of its statutory objects, to establish standards for public teaching, “having regard to the public interest”. At that time, there were three academic criteria and there was no evidence that the TWU program would not meet them. The rejection of TWU was based on the discriminatory practices which the BCCT found to be contrary to the public interest and public policy. The Community Standards document in 2001 was more sharply worded than the current Community Covenant. It required students to refrain from practices that are “biblically condemned” including the “sexual sins” of

802001 SCC 31 (S.C.C.) 122 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

premarital sex, adultery, homosexual behaviour and viewing pornography. 185 The BCCT refused to recognize the TWU program and TWU sought judicial review. Its first argument was that the college did not have jurisdiction to even consider its discriminatory practices. That argument did not really get out of the gate. The reason for that is important. The Court held that because teachers were a medium for the transmission of values it was important for teachers to understand issues of diversity. It was entirely appropriate for the college to consider all features of the education program and not limit itself to a determination of skills and knowledge. The college after all had a public interest aspect to consider and even though it was not applying the Charter or human rights legislation directly, it was entitled to consider those issues: It is obvious that the pluralistic nature of society and the extent of diversity in Canada are important elements that must be understood by future teachers because they are the fabric of the society within which teachers operate and the reason why there is a need to respect and promote minority rights. The suitability for entrance into the profession of teaching must therefore take into account all features of the education program...Schools are meant to develop civic virtue and responsible citizenship, to educate in an environment free of bias, prejudice and intolerance. It would not be correct, in this context, to limit the scope of s. 4 to a determination of skills and knowledge.81 186 The Court noted that the college was required to consider equality concerns and the protection against discrimination based on sexual orientation. It was also required to consider issues of religious freedom. The issue as described by the Court was how to “reconcile the religious freedoms of individuals wishing to attend TWU with the equality concerns of students in B.C.’s public school system.”82 187 The Court said that the potential conflict should be resolved through the proper delineation of the rights and values involved. Neither freedom of religion nor the guarantee against discrimination is absolute. One right is not privileged at the expense of another. There is no hierarchy of rights.

81Ibid. para. 82Ibid. para. 28 TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 123

188 The Court concluded that the decision of the college placed a burden on the members of the religious group who wished to associate with each other. If the university refused to abandon its standards, students would not have the opportunity to affirm their beliefs by attending TWU and hope to be certified as teachers. The Community Standards, the predeces- sor to the Community Covenant, was found to prescribe conduct of members while at TWU, but was not sufficient to support the conclusion that the college should anticipate intolerant behaviour by TWU trained teachers in public schools. If that document would be enough to justify denying accreditation, the same then could be said of membership in a particular church. In other words, attendance at TWU and adherence to its standards was not sufficient evidence to base a concern that the person will be intolerant or will not be able to teach tolerance. 189 Maintaining the conscientious belief that homosexual behaviour is a sin does not necessarily lead to intolerant behaviour. In this case, the NSBS is not saying that it would. The BCCT claimed that TWU graduates would be intolerant toward LGBT people, in effect tainting them with their association with the university. The NSBS does not make that claim. 190 The Court went on to state that the consideration of human rights values encompasses consideration of the place of private institutions and reconciling competing rights and values. There was nothing in the Com- munity Standards document to indicate that graduates of TWU would not treat homosexuals fairly and respectfully. Freedom of religion was not accommodated if the consequence of its exercise was the inability to obtain a teaching certificate. Clearly, the restriction on freedom of religion must be justified by evidence that the exercise of this freedom of religion will, in the circumstances of this case, have a detrimental impact on the school system. Instead, the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them.83 191 The Court went on to say that the college did not impose a test on applicants from other universities to screen out those who held sexist, racist or homophobic beliefs. People are entitled to those beliefs. They just are not entitled to act on them. There was no specific evidence to

83Ibid. para. 35, 36. 124 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

support a concern about teachers educated at TWU. Concerns should go to risk not general perceptions.84 192 It has been argued that the Trinity Western University v. College of Teachers (British Columbia) case is not binding authority. The law relating to freedom of religion and sexual orientation has evolved considerably since 2001. The social facts before the court are different in this case. Decisions of the Supreme Court of Canada are binding authority. If they aren’t, the whole concept of stare decisis would have been rendered pretty much meaningless. The Court itself however has acknowledged that precedents do not have an indefinite shelf life. Decisions can be re- visited, though the threshold is not easily reached. There has to be a new legal issue raised, or a significant change in the circumstances or evidence.85 193 On its face, the Trinity Western University v. College of Teachers (British Columbia) decision is very much on point. That is not merely because the case involves the same university. Both in this case and in the Trinity Western University v. College of Teachers (British Columbia) case the bodies that were required to make a decision about accreditation or approval had a mandate to act in the public interest. In both cases a form of document, whether it be a covenant or community standard, required students to abstain from behaviour that amounted to imposing restrictions on LGBT students. In both cases, there was no specific evidence to allow the reasonable inference to be made that a graduate of TWU would act in a way that was intolerant or discriminatory. 194 While the Trinity Western University v. College of Teachers (British Columbia) case was concerned about the direct impact on public school- ing in the province, the NSBS position is somewhat more subtle. It is not saying that TWU lawyers will be bigots or that they will not uphold ethical standards respect, equality and non-discrimination. The NSBS is asserting that while TWU law graduates will be no more likely to act in ways that are discriminatory, accepting a law degree from the institution would amount to condoning discrimination. In that sense the approach and the issues are different from that of the Trinity Western University v. College of Teachers (British Columbia) case. The earlier case was dealing with a misplaced concern regarding the ability of TWU trained teach-

84Ibid. para. 38. 85Bedford v. Canada (Attorney General), 2013 SCC 72 (S.C.C.), para. 44. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 125

ers to respect equality and diversity. In this case, that concern has specifically removed from consideration. It is about the public perception of accepting an otherwise acceptable law degree from TWU. 195 It cannot be denied that considerable progress has been made in the last 14 years on issues of gay and lesbian rights, particularly in terms of widespread public acceptance. At the same time however, the decision in Trinity Western University v. College of Teachers (British Columbia) is not out of step with current legal thought or social values. It does not reflect a less respectful view of the position of LGBT people in society than would be the case today. It acknowledges the fundamental importance of equality values as they relate to the LGBT community. It is not just about those values though. It is about how those values and the values of freedom of conscience and freedom of religion relate. 196 The conversation between equality and freedom of conscience has not become old fashioned or irrelevant over the last 14 years, and the Su- preme Court’s treatment of it can hardly now be seen as archaic or anachronistic. Equality rights have not jumped the queue to now trump religious freedom. That delineation of rights is still a relevant concept. Religious freedom has not been relegated to a judicial nod to the toleration of cultural eccentricities that don’t offend the dominant social consensus. 197 In Syndicat Northcrest c. Amselem86 the Supreme Court of Canada said that freedom of religion was to be interpreted to be “broad and expansive” and should not be prematurely narrowly construed.87 In 2006 the court in Multani c. Marguerite-Bourgeoys (Commission scolaire)88 confirmed that in the BCCT case there had been “no conflict of fundamental rights” and thus no need to “prefer” one over the other.89 That case involved the religious right of a Sikh student to wear a ceremonial dagger to school. 198 In L. (S.) c. Des Chˆenes (Commission scolaire)90 parents sought to have their children excluded from the Ethics and Religious Culture program which had been set up by the Quebec government to replace the

862004 SCC 47 (S.C.C.) 87Ibid. para. 62. 882006 SCC 6 (S.C.C.). 89Ibid. para. 28. 902012 SCC 7 (S.C.C.). 126 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Roman Catholic and Protestant programs of religious and moral instruction. The parents said that it would infringe on their ability to provide religious instruction to their children by exposing them to what the parents considered to be religious relativism. The Supreme Court of Canada concluded that the course was not a form of indoctrination but simply exposed children to various religions. Justice Deschamps noted that the place of religion in civil society had been a source of public debate “since the dawn of civilization”. Governments remain neutral on religion and while the concept of state neutrality of religion has developed it has done so alongside a “growing sensitivity to the multicultural makeup of Canada and the protection of minorities.”91 Trying to have religious neutrality in the public sphere is a major challenge for the state. Justice Des- champs cites Richard Moon, in “Government Support for Religious Prac- tice” in Law and Religious Pluralism in Canada:92 Ironically then, as the exclusion of religion from public life, in the name of religious freedom and equality, has become more complete, the secular has begun to appear less neutral and more partisan. With the growth of agnosticism and atheism, religious neutrality in the public sphere may have become impossible. What for some is neutral ground on which freedom of religion and conscience depends is for others a partisan and anti-spiritual perspective.93 199 Justice Deschamps suggests that we might have to accept that from a philosophical standpoint absolute neutrality does not really exist, but ab- solutes hardly have any place in law in any event. A realistic and non- absolutist approach to assure state neutrality in religion involves the state neither favouring nor hindering a particular belief. It must show respect for all postures toward religion, including no religion, while taking into account the competing constitutional rights. That is not inconsistent with the approach taken in Trinity Western University v. College of Teachers (British Columbia). 200 In R. v. S. (N.).94 the court dealt with the issue of whether a witness should be permitted to wear a niqab that covered her face while testifying in court. The issue of trial fairness is of course of fundamental impor-

91Ibid. para. 21 92Vancouver: UBC Press (2008) 217. 93Moon, p. 231, cited in L. (S.) c. Des Chˆenes (Commission scolaire), at para 30. 942012 SCC 72 (S.C.C.). TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 127

tance but the “need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law.” Re- ligious rights should not be limited in situations where there is no good reason for the limitation.95 Religious rights have not been marginalized or in any way required to give way to a presumption that equality rights will always prevail. 201 More recently, in Whatcott v. Saskatchewan Human Rights Tribu- nal,96 the court again rejected the hierarchical approach to rights. The case involved the balancing of freedom of conscience, religion and expression with equality rights. Whatcott distributed flyers that were al- leged to constitute hate speech on the basis of sexual orientation. There is an important distinction between “the expression of repugnant ideas and expression which exposes groups to hatred.”97 Hate speech legislation does not prohibit the expression of repugnant or offensive ideas or even that which advocates the reduction of the rights of vulnerable members of society. It does not target the ideas but the mode of their expression in public. 202 Justice Rothstien confirmed that courts are required to balance the fundamental values underlying freedom of expression (and later freedom of religion) in the context in which they are invoked, with competing Charter rights and other values essential to a free and democratic society, in this case, a commitment to equality and respect for group identity and the inherent dignity owed to all human beings.98 203 The position of the court is again not substantially different in Whatcott from Trinity Western University v. College of Teachers (British Columbia). The same kind of balancing has to take place and equality rights are not privileged over freedom of conscience or freedom of religious expression. Expression criticizing or creating humour at the expense of others can be derogatory to the extent of being repugnant. Representations belittling a minority group or attacking its dignity through jokes, ridicule or insults may be hurtful and offensive. However for the reasons discussed above, offensive ideas are not sufficient to ground a justifi-

95Ibid. para. 56. 962013 SCC 11 (S.C.C.). 97Ibid. para. 52. 98Ibid. para. 66. 128 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

cation for infringing on freedom of expression. While such expression may inspire feelings of distain or superiority, it does not expose the targeted group to hatred.99 204 People are not protected from being offended or suffering minority stress by the exercise of another person’s freedoms, even if that expression is objectively offensive. Justice Rothstein went on the say with regard to religious freedom that “the protection provided under s. 2(a) should extend broadly.”100 Two of Whatcott’s flyers were photocopies of classified advertisements from a publication called Perceptions. Printed in hand at the top, were the words, “Saskatchewan’s largest gay magazine allows ads for men seeking boys”. He added a biblical reference, “’If you cause one of these little ones stumble it would be better that a millstone was tied around your neck and you were cast into the sea,’ Jesus Christ”. Whatcott also added, “[t]he ads with men advertising as bottoms are men who want to get sodomized. This shouldn’t be legal in Saskatchewan.” 205 The court held that while the expressions were offensive, that is not enough. There is no legal protection from offense. With respect to the excerpt from the Bible the court agreed with comments of Richards J.A. in Hellquist v. Owens101 urging care in dealing with whether the founda- tional documents of a religion violate human rights legislation.102 Even if Mr. Whatcott’s words were interpreted as urging that homosexuality should be made illegal, the flyers were “potentially offensive but lawful contributions to the public debate on the morality of homosexuality.”103 206 With respect, some might wonder at the use of the word, “potentially.” They might also ask, “Public debate? What public debate?” Many people consider that any debate about the morality of homosexuality is over. The only people talking about it are seen by many as being out of touch with modern mainstream society and those who have not realized that the issue just is not relevant to most people anymore. But Justice Rothstein’s point is that there are large sections of society that have different views. Those views for some are based on interpretations of sacred

99Ibid. para. 90. 100Ibid. para. 154. 1012002 SKQB 506 (Sask. Q.B.), rev’d 2006 SKCA 41 (Sask. C.A.). 102Ibid. para. 78. 103Whatcott, para. 200. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 129

texts and religious traditions. The freedom to hold those views is protected. How those views are expressed and made part of public debate and how those views are put into practice must be considered as part of the delineation and balancing process. But a person has a constitutional right to express religiously based views that ridicule, belittle, or affront the dignity of other people, including sexual or other minorities. 207 That all appears to be quite a far cry from the kind of development by which secular concerns and equality rights have expanded so that there is little or no room for religious freedom and freedom of religious expression that offends those values. The decision in Trinity Western University v. College of Teachers (British Columbia) has not been overtaken by other developments and is not an expression of outdated concepts involving the intersection of rights. 208 The facts of the case are not identical and the arguments are different. It is not determinative of this case but the principles still apply.

b. Carving Out a Space 209 The application of those principles to the issue of the proposed school of law is not simply a matter of noting the similarities. The issue for decision in this matter includes considerations beyond those involved in the Trinity Western University v. College of Teachers (British Columbia) case. The NSBS has made its decision based not at all upon the concern about an influx of potentially intolerant law students from TWU. It is more with the concern that as a province and a profession that has a history of systemic racism and inequality that it has over the last number of years made great efforts to overcome, there is a public interest in not countenancing discrimination in any form. The approval of a law school which openly discriminates against LGBT students could be seen as a significant step back. It is not about anyone being discriminated against in Nova Scotia but about the profound sense of hurt that people feel when witnessing discrimination elsewhere and the compounding of that hurt by the NSBS being seen as approving of it. 210 The issue is how that response to a troubled history of racism and inequality intersects with the values that underlie freedom of conscience. 130 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

211 In a 2004 article entitled “Freedom of Religion and the Rule of Law: A Canadian Perspective,”104 Chief Justice McLachlin commented on what she referred to as the “seemingly paradoxical task” faced by the law in asserting its own authority while at the same time “carving out a space within itself” in which communities can manifest alternate and often competing sets of ultimate commitments.105 Both law and religion make comprehensive claims. For society to function it has to be able to depend on a general consensus with respect to certain norms. On the other hand, in society there is a value placed on multiculturalism and diversity, which includes a commitment to freedom of religion. The beliefs and actions manifested when that freedom is granted can collide with con- ventional legal norms: What is good true and just in religion will not always comport with the law’s view of the matter, nor will society at large always properly respect conscientious adherence to authorities and divergent normative or ethical commitments. Where this is so, two comprehensive world views collide.106 212 The issue of how to honour the comprehensive nature of religion’s claim on a person’s life while recognizing the rule of law involves a tension that the Chief Justice calls the “dialectic of normative commitments”.107 The dialectic has to be resolved by reaching synthesis. The role of the courts is to reconcile competing cultural values to “carve out” a space within the rule of law within which those religious claims to authority can operate, “manifest and flourish”.108 The language of carving out may to some carry the negative connotation of the state granting permission for a reserve within which religion may function, but the point is that religious claims are seen as legitimate expressions. That dialectic does not suggest that those who hold religious views should be educated by the state in more appropriate secular values to create a moral melting pot.

104McLachlin, Rt Hon Beverley, in Recognizing Religion in a Secular Society: Essays in Pluralism, Religion and Public Policy (Quebec City: McGill-Queen’s University Press, 2004) 105Ibid. page 16. 106Ibid. page 21. 107Ibid. page 21. 108Ibid. page 29. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 131

213 From Trinity Western University v. College of Teachers (British Co- lumbia) to Whatcott the Supreme Court has dealt with those competing normative commitments. Equality rights are of fundamental importance. The court has made clear that freedom of conscience and expressions of religious freedom are also fundamental. The synthesis between them involves delineating the rights themselves. In the case of equality rights they do not extend to the protection of vulnerable groups from hurtful statements or from statements that do not respect dignity and equality. Freedom of religion does not extend to hate speech nor does it provide a cover for other intolerable behaviour.

c. Decision or Regulation? 214 In these cases the process, or perhaps the way the dialectic is expressed, seems to depend on whether what is being considered is an administrative decision or a regulation. Another way to define the two types of analysis is to describe one as applying to cases where there are Charter rights or considerations involved on both sides and the other applying to cases in which there are statutory or public interests that inter- sect with Charter rights. In each case Charter considerations are involved but the analysis is driven by the context. 215 Here, the NSBS passed a resolution by which it refused to “approve” the proposed law school at TWU. That on its face is an administrative action. That action was followed by the passing of a regulation which gave effect to the resolution by stating that Federation-approved law degrees would be accepted unless the NSBS Council “determines that the university granting the degree unlawfully discriminates in its law student admission or enrollment policies on grounds prohibited by either or both the Charter of Rights and Freedoms and the Nova Scotia Human Rights Act.” That of course is a regulation which would be reviewed having regard to a somewhat different test to determine whether Charter rights were properly considered. 216 The two kinds of analysis are certainly not inconsistent and both are aimed at achieving a reconciliation that is both principled and at the same time, contextual. There is little value in considering each matter separ- ately. The regulation was passed to implement the resolution and the same considerations applied. 132 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

217 When dealing with the balancing and delineation of rights the analysis is as set by the Supreme Court of Canada in R. v. S. (N.)109. In that case the Court applied an approach based on Dagenais v. Canadian Broadcasting Corp..110 and R. v. Mentuck111. In R. v. S. (N.) the Court was dealing with how freedom of religion as manifested in the right to wear a niqab intersected with the right to a fair trial of a person accused of a crime by a person who wished to wear a niqab in court. The first question is whether there has been an infringement of a right and if so, whether it was more than trivial and insubstantial. The second question is whether there is also a competing Charter right on the other side of the case. If there are competing rights the issue is whether there are alternative measures by which both rights can be accommodated. Finally, the court has to consider the salutary effects of the administrative action on one right or set of rights and the deleterious effect on the other. That involves a consideration of whether one right has been disproportionately affected or the other disproportionately privileged. 218 When considering whether an administrative actor properly considered the Charter implication of a regulation the process is somewhat different but the effect is essentially the same. It is the same kind of analysis applied to any legislation that is the subject of a Charter challenge. The Supreme Court of Canada decision in Hutterian Brethren of Wilson Colony v. Alberta112 is an example of that. In that case the Wilson Col- ony challenged the requirements imposed by Alberta legislation that a driver’s licence must have on it a picture of the licence holder. The Hut- terites of the colony practised a religion that forbade their having their photographs taken. The province agreed to lessen the impact by issuing licences without the photographs but still required that the pictures be taken and kept in a data bank. The universal photo requirement was held to constitute a limit on freedom of religion and thus an infringement of the colony members’ s. 2(a) Charter rights. An infringement is made out when the claimant sincerely maintains a belief or practice that has a nexus with religion, and the impugned measure interferes with the claimant’s ability to act in accordance with those beliefs in a way that is more

1092012 SCC 72 (S.C.C.). 110[1994] 3 S.C.R. 835 (S.C.C.). 111[2001] 3 S.C.R. 442 (S.C.C.). 1122009 SCC 37 (S.C.C.). TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 133

than trivial or insubstantial.113 Trivial or insubstantial interference is interference that does not threaten the belief or conduct. 219 If an infringement has been found, the issue is whether the regulation can be justified under s. 1 of the Charter as a reasonable limit in a free and democratic society. That involves the application of the test in R. v. Oakes114 which is essentially a proportionality test. The first step is to determine whether the limit is one that has been prescribed by law. It does not matter whether the impugned measure was passed into law by statute or regulation. The next question is whether the purpose for which the limit is imposed is pressing and substantial. In other words, rights should not be infringed at all for purposes that just are not that important. If the goal of the regulation is pressing and substantial it must be asked whether this regulation is rationally connected to that goal. The government, or in this case, the NSBS, must “show a causal connection between the infringement and the benefit sought on the basis of reason or logic.”115 So, here, there has to be a causal link between the regulation and what was being sought to be achieved by it. The next issue is whether the limit imposed by the regulation was a minimal impairment of the right. In other words, the question is whether the limit on the right was reasonably tailored to the pressing and substantial goal put forward so as to justify the limitation of the right. Was there a less harmful means of achieving the legislative goal? The legislature is accorded considerable deference dealing with complex social issues where the it is better positioned to choose among a range of alternatives. 220 Finally the court has to assess the proportionality of the effects of the legislative action. At this stage the question is whether the overall effects of the regulation are disproportionate to the objective. Is the limit on the right proportionate in effect to the public benefit conferred by the limit? The more severe the deleterious effects of the measure the more important the objective has to be to be reasonable and demonstrably justified. 221 The reason for setting out two well-known tests is to draw attention to similarities but also to the differences. While both involve considerations of proportionality, one focuses on a balancing of rights while the other

113Syndicat Northcrest c. Amselem, 2004 SCC 47 (S.C.C.). 114[1986] 1 S.C.R. 103 (S.C.C.). 115RJR-Macdonald Inc. c. Canada (Procureur g´en´eral), [1995] 3 S.C.R. 199 (S.C.C.). 134 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

focuses on the balancing of rights and the public objectives of legislation. With respect to the NSBS action, neither the resolution nor the regulation are expressions of the rights of LGBT people. It is an expression of public policy by a state actor, the NSBS. The NSBS asserts that the action is in furtherance of those rights. 222 The NSBS says that its actions here were mandated by the Charter. The Charter does not apply to TWU as a private institution.116 But the NSBS argues that in deciding to accept a law degree from TWU the NSBS, as a state actor must comply with the Charter and that indirectly implicates TWU in Charter compliance considerations. That would have potentially very significant implications. Most directly it would apply the Charter to private religious institutions that sought any government recognition of their actions. It would transform it into a tool in the hands of the state to enforce moral conformity with approved values.

i. Was there an infringement? 223 The first issue in any event is whether there has been an infringement of a right. NSBS has argued first that its decision does not infringe any Charter right. Freedom of religion protects a person’s right to “hold and to manifest whatever beliefs and opinions his or her conscience dictates” free from any coercion or restraint.”117 It is about “freely and deeply held personal convictions or beliefs connected to a person’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfill- ment.”118 It includes practices that allow a person to foster a connection with the subject of that faith. The purpose of that freedom was set out by Justice Dickson in R. v. Big M Drug Mart Ltd. Every individual is free to hold and manifest whatever beliefs his or her conscience dictates provided that those beliefs do not injure his neighbours or their rights.119 224 What are protected are profoundly held beliefs and the freedom to express them and act in accordance with them. The activity must be re-

116“It is important to note that this is a private institution that is exempted in part from the British Columbia Human Rights legislation and to which the Char- ter does not apply.” Trinity Western University v. College of Teachers (British Columbia) para. 25 117R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (S.C.C.), at pp. 336-337. 118Syndicat Northcrest c. Amselem, 2004 SCC 47 (S.C.C.), para. 39. 119R. v. Big M Drug Mart Ltd., p. 346. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 135

ligious, and must be grounded in such a sincerely held belief. The infringement has to be non-trivial. 225 The NSBS argues that when those principles are applied to this case, there is no infringement. The refusal to approve a law school degree without the removal of the mandatory aspect of the covenant for law students does not affect a religious activity or the sincerely held religious beliefs of Evangelical Christians. A law school is not a church. 226 The NSBS argues that there is no evidence to suggest that it is a tenet of belief that the study of law must be done in the company only of those who will comply with a code of conduct. Evangelical Christians must be willing to “share the air” with others. Removing the requirement that all law students sign the covenant would at most be a trivial and non-substantial infringement of the right. Evangelical Christian students could sign whatever covenant their religious convictions might require. Their religious rights are not infringed simply by having others with different beliefs in their midst. 227 In the Trinity Western University v. College of Teachers (British Co- lumbia) decision the court found that a school of education at TWU was an exercise of religious expression. There is no denying that the decision of the BCCT places a burden on members of a particular religious group and in effect, is preventing them from expressing freely their religious beliefs and associat- ing to put them in practice.120 228 However, in that case, there was no option given to students to opt into signing a voluntary covenant, which is what the NSBS is suggesting here. The NSBS says that it really should not matter to Evangelical Christians whether another person in their class has signed the covenant as long as they do so themselves. 229 Of course, in the experience of most people, the study of law is a purely secular activity. In that view a religious person can attend a law school and govern himself or herself by whatever religiously informed code of conduct he or she decides to adopt. What others do is up to them. Some will follow those rules and some will not. From the point of view of those who are not Evangelical Christians that just makes sense.

120Trinity Western University v. College of Teachers (British Columbia) para. 32. 136 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

230 To Evangelical Christians it does not. Their religious faith governs every aspect of their lives. When they study law, whether at a Christian law school or elsewhere, they are studying law first as Christians. Part of their religious faith involves being in the company of other Christians, not only for the purpose of worship. They gain spiritual strength from communing in that way. They seek out opportunities to do that. Being part of institutions that are defined as Christian in character is not an insignificant part of who they are. Being Christian in character does not mean excluding those of other faiths but does require that everyone adhere to the code that the religion mandates. Going to such an institution is an expression of their religious faith. That is a sincerely held believe and it is not for the court or for the NSBS to tell them that it just isn’t that important. 231 The affidavit of Dr. Robert Wood, the Provost of TWU, states that the Community Covenant is a code of conduct that embodies TWU’s evangelical religious values. He states that “people reach their fullest potential in a community mutually committed to the observation of Biblical ethics and morality.”121 232 Dr. Wood goes on to state that the Community Covenant is a significant means of ensuring that TWU “maintains its religious character, achieves its mission and continues to attract students, faculty and staff that share its evangelical religious beliefs”.122 The mandatory covenant is part of what makes TWU a distinctly Evangelical Christian institution. It is easy for outsiders to point out aspects of a faith and practises of that that do not seem that important. We don’t get to make that call. 233 TWU of course is not a church. It defines itself as an arm of the church. It is directly run by Evangelical Christian churches on principles that those churches see as a reflection of their faith. 234 There is no real doubt here about the sincerity of the belief of those involved with TWU. It is a sincerely held belief not only that homosexual “behaviour” is sinful but that being at an institution with others who share their beliefs or who are committed a shared Christian life style, is important to their spiritual development. Courts do not engage in the process of determining what or is not a part of a religion’s core beliefs. The

121Wood affidavit, para. 88. 122Wood affidavit, para. 95. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 137

state is in no position to be the arbiter of religious dogma and should avoid judicially interpreting and thus determining, either explicitly or im- plicitly, the content of a subjective understanding of religious requirement, “obligation”, “precept”, “commandment”, custom or ritual. Secular judicial determinations of theological or religious disputes or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion... That said, while the court is not qualified to rule on the validity or veracity of any given religious practices or belief, or to choose among various interpretations of belief, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerity is in fact an issue.123 235 There is no doubt that the beliefs held by Evangelical Christians are sincere. They include the belief in the sanctity of the traditional marriage between a man and a woman. They include the belief in the importance of being in an institution with others who either share that belief or are prepared to honour it in their conduct. They have a right to hold those beliefs and the right to act upon them. The state through the NSBS does not have the authority to try to coerce them into changing those beliefs so that they conform to those of mainstream society. If the state seeks to coerce them to change their actions that give effect to those beliefs it had better have a compelling reason. 236 The court does not inquire into the details of sincerely held religious beliefs but does make the inquiry as to whether the infringement is trivial or insubstantial. If it is a sincerely held religious belief that learning in an environment where religiously motivated codes of conduct are uniformly enforced, making the code optional, essentially renders it no longer a code of conduct. That is not trivial or insubstantial. 237 Requiring that TWU amend the Community Covenant in order to have its degrees accepted in Nova Scotia is an infringement of religious freedom and not a trivial matter.

ii. Was there a Pressing and Substantial Purpose? 238 The second part of the analysis gets more complicated. Are the equality rights of LGBT people implicated at all? On one analysis the task is to delineate the rights on the other side of the equation. When legislative objectives are involved on the other side it is a matter of determining

123Amselem, para. 50, 51. 138 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

whether they are pressing and substantial. In any event, it requires a determination of what there is that is supposed to justify infringement of the right asserted. 239 The NSBS actions were taken in support of the rights of LGBT people but at the same time, this is not a situation in which there even are conflicting rights. The passing of the resolution and the regulation by the NSBS were not in themselves the exercise of equality rights. They were aimed at supporting equality rights but not in and of themselves manifes- tations of the exercise of those rights. The analysis then shifts, somewhat, to a consideration of the purpose of the NSBS actions. 240 What then was the purpose? Why did the NSBS do what it did? It is described as having been because the TWU Community Covenant was discriminatory, so that failing to act as it did would be endorsing discrimination. The existence of the covenant would add to the stress felt by LGBT members of the bar if the NSBS accepted TWU law degrees, it would be an attempt to bring about a change in TWU’s policies, and the action was to promote diversity and prevent barriers to entry to the legal profession. 241 There is absolutely no doubt that dealing effectively with diversity in the legal profession is a pressing and substantial purpose. Actions have to be taken to insure that the history of discrimination is met head on with effective measures to make sure that groups that reflect the diversity of the province’s population are properly represented within the legal profession. 242 To the extent that the purpose can be said to be dealing with discrimination, that is a pressing and substantial objective in a general sense for the purpose of this analysis.

iii. Was the Means by Which the Goal Is Furthered Proportionate? 243 At this point the issue becomes proportionality in one form or another. Has one right or the legislative objective been disproportionately privileged over the other right involved? The issue of proportionality is assessed first by considering whether the NSBS action was even rationally connected to the objectives of dealing with discrimination, directly or indirectly.

a. Rational Connection 244 There has to be a connection between the infringement and the benefit sought on the basis of reason or logic. If the resolution and the regula- TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 139

tion do not address the pressing and substantial objectives, or do not implicate other rights, the NSBS cannot rely on those pressing and substantial objectives to justify an infringement of rights. What the NSBS has done does not rationally relate to the important objective of dealing with discrimination. 245 TWU operates in British Columbia. It has produced graduates for almost 50 years, with various forms of the Community Covenant. It has never been found to be in breach of British Columbia’s human rights legislation and has had the Supreme Court of Canada consider the issue. It would be the height of provincial arrogance, in both senses of the word “provincial”, to suggest that British Columbia has a less genuine respect for human rights values than Nova Scotia. It is a private university. The Charter does not apply to TWU. TWU is not engaging in unlawful discrimination. The fact that the NSBS and the Nova Scotia Human Rights Commission do not like it does not make it unlawful. 246 Another concern is that that the approval would result in the perpetuation of the under-representation of LGBT people at the Nova Scotia Bar. It amounts to reserving 60 “scarce” law school positions in British Co- lumbia for heterosexual people. LGBT people, according to the NSBS evidence, are already underrepresented in the profession of law. TWU and its still not operating law school had nothing to do with that state of affairs. But if 60 new spaces are opened up, there will be spaces for 60 people that are much more likely to be filled by heterosexuals. Of those 60 students, some may want to practice in Nova Scotia. That could increase the proportion of heterosexual lawyers. 247 TWU’s law school would add 60 students to a total class of about 2500 in Canadian common-law law schools. That is an increase of about 2.4%. Of that 2.4% some percentage may make their way to Nova Sco- tia. It is a stretch to speculate that requiring that group or individual to make special application for admission on as yet unknown criteria will help to improve the proportion of LGBT lawyers. Even if it did, placing a barrier before Evangelical Christians or those willing to associate with them, so that the proportion of LGBT lawyers is increased would be so inappropriate and wrongheaded that it could not possibly be what was intended. It amounts to a quota system by which TWU graduates who are more likely to be Evangelical Christians are discouraged from applying so that the proportion of LGBT lawyers is raised. A more direct approach would be to directly limit the number of heterosexual articled clerks to 140 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

reduce the disparity. That is every bit as strange as it sounds. That is not how social progress is achieved in a liberal democracy. 248 Another concern, summarized very briefly, is that members of the LGBT community suffer stress whenever they become aware of discrimination against other LGBT people. The NSBS is concerned that by condoning discrimination through accepting TWU law degrees it is causing more stress in the lives of LGBT people. 249 Dr. Mary Bryson has expressed an opinion with respect to the effects of TWU’s Community Covenant on the wider community. Within the university, there is no doubt that LGBT staff and students would experience stigma and minority stress. They feel pressure to conceal sexual orientation. What is relevant at this stage of the inquiry is the effect that the Community Covenant might have on people who have never been to TWU or perhaps have never even been to British Columbia and have no intention to go there. She notes that research on the health impacts of living in states in the United States where the state has enacted laws that ban same-sex marriage provides “compelling evidence” to support the view that institutionalization by a regulatory authority, such as the NSBS, of discrimination has deleterious effects on the larger LGB community. Where states do not recognize same-sex marriage there are higher rates of psychiatric disorders among LGB people.124 250 Similarly, in professions where there remain forms of institutionalized discrimination against LGBT people significant deleterious effects have been found. Where a profession fails to implement an anti-discrimination policy, for example, there are negative effects that range from mental health issues to professional development.125 Where professions sanction or lack a policy against discrimination that has serious detrimental consequences for LGBT people. Dr. Bryson goes on to state: Therefore, it is reasonable to conclude that the effects of the “freedom to discriminate” that has been provided to Trinity Western Uni- versity - a freedom sanctioned by the state by means of its sanction of the TWU Community Covenant by recognizing its law education [sic] and degrees - these harmful effects stretch far beyond the

124Bryson affidavit, para. 20. 125Bryson affidavit, para. 21. TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 141

bounds of any individual education setting and thus impact the larger lesbian, gay and bisexual community.126 251 I accept the evidence that TWU’s Community Covenant does indeed treat LGBT people in a way that would have profoundly negative effects of their lives. For many or most LGBT people the experience of attending such a place would be traumatic and potentially damaging. 252 It is very clear that there are systemic and widespread effects of regulatory authorities’ permitting or approving discrimination in institutional settings. Where discrimination is allowed to take place there are of course damaging effects. It is also not surprising that LGBT people suffer when they live in states where they are made to feel unvalued by the formal refusal to recognize equality rights through same-sex marriage. 253 None of that has application here. The NSBS has taken active efforts to deal with discrimination against the LGBT community. It is simply not allowed within the legal profession in Nova Scotia. This is not in the least analogous to a profession that has failed to take steps to have appropriate policies or a state that has failed to recognize equality rights. Per- mitting TWU graduates to article in Nova Scotia will not open the door to discrimination in Nova Scotia. 254 There is an important difference between the failure to regulate against discrimination in the profession and the failure to sanction someone else, somewhere else, for legally exercising a religious freedom. In other words, there is no evidence to support the claim that LGBT people or anyone else in Nova Scotia will suffer psychologically or otherwise if they are aware that TWU students, subject to the same ethical requirements as others, can be admitted to the practice of law in Nova Scotia. That is particularly the case of LGBT people who are reasonably well informed about the relevance of the requirement to respect religious views and practices. There is no evidence beyond speculation that LBGT people in Nova Scotia are harmed in any way, however slight, by living in the knowledge that an institution in Langley British Columbia, which like any number of religious institutions in Nova Scotia, does not recognize same sex marriage but which properly educates lawyers who can practice law in Nova Scotia, where discrimination within the profession is strictly forbidden.

126Bryson affidavit, para. 23. 142 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

255 More fundamentally the decision of the NSBS is about public confidence. Put more starkly perhaps, it is motivated by the question, “What will people think?” If the NSBS allows students from a law school that discriminates against LGB people it will appear hypocritical in light of its strong advocacy for equality rights. That will have the indirect impact, perhaps, of making LGBT people less likely to want to practice in Nova Scotia. They would in effect be saying, that despite all of the positive work that the NSBS has done the profession in Nova Scotia is no place for LBGT people because it accepts as a law degree a law degree from an institution that discriminates. 256 This is about a point of principle. It has been made in the context of a history of systemic inequality in the Nova Scotia justice system. Inequal- ity will no longer be tolerated by the bar in Nova Scotia. Human dignity matters. Some would say that it is a matter about which there should be no nuance. 257 But what doesn’t the statement say? It doesn’t say that the Nova Sco- tia bar will not accept people who act in ways that fail to respect the equality rights of the LBGT community. It doesn’t need to. The Code of Professional Conduct says that. Lawyers from any law school have to comply. Not accepting a TWU degree will not prevent any more bigoted lawyers from practising here than refusing the accept law degrees from other universities. It is not about what actually happens in Nova Scotia. 258 It doesn’t keep out lawyers who hold views that are exactly the same as those expressed by the TWU Community Covenant. There is no test for “aberrant” attitudes or “correct thinking”. Lawyers are entitled to believe what they want. They are entitled to form associations of like- minded lawyers. There is no requirement to disaffirm religious or other beliefs that are out of step with equality values. There is no requirement to leave those beliefs at the door of the church, synagogue, temple, mosque or meeting hall, even if those beliefs result in discrimination being systemically practised by the institution of which the lawyer is a member. But if the issue is about perception, what would the public think of a profession that permits lawyers to practice who sincerely believe that same sex marriage is morally wrong, who join organizations that advocate that belief and who form organizations of like-minded lawyers? 259 The refusal to recognize the TWU law degree doesn’t say that people associated with other organizations that may have a fundamental call on their consciences, such as churches, that teach that same-sex sexual intimacy is a sin and do not endorse same sex marriage, will not be permit- TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 143

ted to practice law here because their association or membership might send the wrong message. Roman Catholics, to note but one example, belong to a worldwide communion of faith that does not permit women or married men to be members of the clergy. It teaches that homosexuality is a sin. It does not recognize same-sex marriage. Many or at least some members of that faith who are lawyers presumably believe those things. There is no question whatsoever that they are able to practise as lawyers who respect the equality and dignity of LGBT people. More significantly though, it is inconceivable that Roman Catholics would be banned from practice because of their association with a church that actively teaches those beliefs and what having them in the profession says about the value of equality rights. And it could be said that being an active member of a religious denomination connotes more of an acceptance of the tenets of that faith than attending a university that imposes religious based behavioural restrictions on students. But again, what would people think of a profession that allows such people to practise law? 260 The same presumably holds true for those who hold positions of responsibility for the governance of the profession. What does it say about equality within the profession if the President of the NSBS were a Ro- man Catholic, or Mormon or Evangelical Christian or Muslim who pub- lically endorsed the belief system of that religious faith? What would it say to the LGBT community about the profession’s commitment to equality? It is difficult to see that as being less significant than an articling student who may have chosen to attend a law school that may or may not reflect his or her beliefs. If the test becomes, “What does it say about equality if....?”, then a hierarchy of rights has been established, with religious liberty relegated to vastly diminished status. 261 The NSBS policy and regulation do not say that those who attend international universities where discrimination is practised and who have been admitted to the bar elsewhere will not be permitted to practise here. They do not say that someone who got another degree at TWU and who fervently and vocally agrees with its practises but who gets a law degree elsewhere cannot practise here. 262 They don’t even say that a person who obtains a law degree from TWU and practises in another province cannot transfer to Nova Scotia. They are prevented from doing that. A TWU law degree is a law degree then if the person who has it passes through another province first. In fact, the NSBS has maintained that an individual TWU law graduate may apply and may be admitted in Nova Scotia without being admitted else- 144 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

where based on individual consideration of his or her TWU law degree. In other words, a TWU law degree is not a law degree, unless the student asks, in which case it might be a law degree for some and perhaps not for others on criteria that have not yet been established. 263 The NSBS has made serious and meaningful efforts to deal with discrimination and particularly discrimination against LGBT people. This just isn’t one of them. 264 The NSBS is making a statement about equality and its refusal to allow the cloven hoof of discrimination in the door once again, but as a statement it does nothing to protect the equality interests of LGBT people. It is not rationally connected to the objective or purpose that is pressing and substantial which is redressing systemic discrimination in the profession. If it addresses only the need to make a statement of principle so as to not appear to be hypocritical, that is hardly a pressing and substantial purpose justifying the infringement of a Charter right. If however making such a statement is indeed important, the statement made is hardly clear and unequivocal.

b. Minimal Impairment 265 The issue of whether there has been minimal impairment is close to the issue of whether there can be some kind of accommodation of the rights. Was there another way that the objective could have been achieved that impaired the right less drastically? Could there have been an accommodation? 266 The issue is then whether the NSBS could have made such a statement without infringing to the extent it did on the right to religious freedom. The NSBS action was not designed to minimally impair the freedom of religion and freedom of conscience. It made a passing nod to minimal impairment by applying its requirements only to law students. It did not require the removal of the Community Covenant, only its amendment so that discriminatory effects did not apply to law students. 267 Rather than minimally impairing the right, that effort only points to the illogic of the position. Even if the NSBS concern is with avoiding hypocrisy it would only forbid discrimination against law students but would have no issue with their being taught by professors, surrounded by other students, and subject to administrators, who would be subject to what it considers to be unlawfully discriminatory treatment. The problem with responding to the exercise of religious rights by making a point of principal is that an attempt at minimal impairment itself can lead to the TWU v. Nova Scotia Barristers’ Society Jamie S. Campbell J. 145

perception of hypocrisy. If the concern is with how it looks, there isn’t much choice but to go all the way.

c. Proportionate Effects 268 On one side is a statement of principle. On the other a right to religious expression that is directly impaired. 269 The action by the NSBS does nothing to prevent a single person in Nova Scotia from being the subject of any discriminatory action in relation to the legal profession. No lawyer will be less likely to discriminate and no person will be less likely to be discriminated against because of it. There is no evidence to support the contention that reasonably informed LGBT people will be more or less likely to find the profession a welcoming one as a result of this particular action. It will not prevent the NSBS from being perceived as hypocritical. It will do nothing whatsoever to improve the status of LGBT people in this province. 270 The impact on the religious expression would be to require it to be undertaken in a way that significantly diminishes its value. TWU’s character as an Evangelical Christian University where behavioural standards are required to be observed by everyone would be changed. Replacing a mandatory code with a voluntary one would mean that students who wanted to be assured that they could study in a strictly Evangelical Chris- tian environment would have to look elsewhere if they want to practice in Nova Scotia. That impact is direct. The NSBS resolution and regulation infringe on the freedom of religion of TWU and its students in a way that cannot be justified. The rights, Charter values and regulatory objectives not were reasonably balanced within a margin of appreciation.

8. Conclusion 271 For many people in a secular society religious freedom is worse than inconsequential. It actually gets in the way. It’s the dead hand of the su- perstitious past reaching out to restrain more important secular values like equality from becoming real equality. A more progressive society, on that view, would not permit any incursions by religion into public life or would at least limit those incursions to those by religions that have belief systems and practices that are more consonant with mainstream morality. The discomforting truth is that religions with views that many Canadians find incomprehensible or offensive abound in a liberal and 146 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

multicultural society. The law protects them and must carve out a place not only where they can exist but flourish. 272 The NSBS position speaks on one level about equality as a value. It is a reflection of a moral matrix that privileges that value. It speaks in the language of that value. And it makes it entirely possible to say, “A law school that discriminates is just wrong. There is nothing to debate here.” 273 The other moral matrix speaks in the language of sanctity and privileges that value. It makes it entirely possible to say, “Homosexual acts are a sin. That is the word of God. There is nothing to debate here.” 274 Both are moral judgments. It has been said that morality binds groups together. It also blinds.127 The values of the other are easily seen as merely prejudices. 275 Tolerance, the ambiguous and paradoxical concept that it is, acts not so much as a boundary as the synthesis of the dialectic of competing values referenced by Chief Justice McLachlin. Unless tolerance engages the incomprehensible, the contemptible or the detestable, it is nothing much more than indifference. It isn’t a line. It’s a process. And it’s one that invites and almost requires a level of discomfort. 276 If the parties are unable to agree on costs I will hear them on that matter. Application dismissed.

127Haidt, Jonathan, The Righteous Mind; Why Good People are Divided by Politics and Religion (Pantheon Books: New York, 2012). H´ebert c. Sainte-Marie-Saint-Raphael (Municipalit´e) 147

[Indexed as: Hébert c. Sainte-Marie-Saint-Raphael (Municipalité)] Rémi Hébert, Applicant v. Sainte-Marie-Saint-Raphael, a duly incorporated municipality, Respondent New Brunswick Court of Queen’s Bench Docket: BM/39/2014 2015 NBBR 111, 2015 NBQB 111 J.A. Réginald Léger J. Heard: December 9, 2014 Judgment: March 20, 2015 Municipal law –––– Municipal officers and employees — Termination of service — Judicial review — Duty of fairness –––– Applicant employee had been employed as chief administrative officer and clerk-treasurer of respondent municipality until he was dismissed at special meeting of municipal council — After complaints had been read at meeting, employee was asked if he had anything to say, and in response, employee declined and said he would sue municipality — Employee brought application for judicial review of decision and for order quashing decision on ground that municipality breached its duty of procedural fairness toward him and acted in violation of principles of natural justice — Application dismissed — There was no breach of duty of procedural fairness — Employee was public office holder under s. 74(1) and (2) of Municipalities Act and was entitled to procedural fairness under circumstances surrounding his dismissal — Minimal, reasonable and efficient features of procedural fairness to which employee was entitled were observed — Employee was made reasonably aware of cause for his termination, as list of complaints had already been known to him for some time — Employee was given sufficient opportunity to make representations about council’s complaints against him on number of occasions — Employee did not take advantage of opportunity or even ask for time to explain himself. Cases considered by J.A. Réginald Léger J.: Baker v. Canada (Minister of Citizenship & Immigration) (1999), [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 1999 CarswellNat 1124, 1999 CarswellNat 1125, 243 N.R. 22, 1 Imm. L.R. (3d) 1, 14 Admin. L.R. (3d) 173, [1999] 2 S.C.R. 817 (S.C.C.) — followed New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 1, 148 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

(sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, [2008] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — followed Ouellette c. Saint-André (communauté rurale) (2013), 2013 NBCA 21, 2013 CarswellNB 124, 2013 CarswellNB 125, 9 M.P.L.R. (5th) 3, [2013] A.N.B. No. 80, [2013] N.B.J. No. 80, 7 C.C.E.L. (4th) 171, (sub nom. Ouellette v. Saint-André (Rural Community)) 1044 A.P.R. 228, (sub nom. Ouellette v. Saint-André (Rural Community)) 402 N.B.R. (2d) 228 (N.B. C.A.) — followed Statutes considered: Municipalities Act, R.S.N.B. 1973, c. M-22 Generally — referred to s. 74(1) — considered s. 74(2) — considered s. 74(5) — considered

APPLICATION by municipal employee for judicial review of decision of municipal council to terminate his employment.

Mario J. Lanteigne, for Applicant Basile Chiasson, Q.C., for Respondent

J.A. R´eginald L´eger J.:

1 The applicant had been employed as chief administrative officer and clerk-treasurer of the municipality of Sainte-Marie-Saint-Raphaël since June 2012. On June 23, 2014, he was dismissed at a special meeting of the municipal council. On September 22, 2014, he filed an application seeking an order quashing the decision of the municipal council of Sainte-Marie-Saint-Raphaël on the ground that the respondent breached its duty of procedural fairness toward him and acted in violation of the principles of natural justice. The applicant relies on the following grounds in his application [TRANSLATION]: a. The respondent violated the rules of natural justice. b. The respondent violated the audi alteram partem rule. c. The respondent did not treat the applicant fairly and impartially. d. The applicant did not receive adequate written reasons for his dismissal. Hébert c. Sainte-Marie-Saint-Raphael (Municipalité) J.A. Réginald Léger J. 149

e. The respondent never revealed the source or substance of the allegations. f. The respondent did not give the applicant an opportunity, either before or during the meeting on June 23, 2014, to make representations to the municipal council on the reasons for dismissal set out in the letter dated June 25, 2014. g. The respondent did not give the applicant a full and fair opportunity to make representations on the details of the allegations and on the evidence considered by the municipal council before the final decision was made. h. Such other grounds as this Court may consider just and equitable. 2 The respondent denies the applicant’s allegations and contends that it acted at all times in accordance with its duty of procedural fairness toward the applicant.

Background 3 On June 25, 2012, the respondent hired the applicant as chief administrative officer and clerk-treasurer pursuant to subsections 74(1) and 74(2) of the Municipalities Act, which provide for the existence of municipal public offices. Section 74(5) provides protection for municipal employees such as the applicant to whom the Act applies. It is common ground that the application relates only to the procedural aspect of the decision to which it refers and not to the issue of whether or not there was cause to dismiss the applicant. 4 The applicant worked for the respondent until June 23, 2014, the date of his dismissal. As chief administrative officer, he reported to the municipal council. 5 Henri-Paul Duguay was the mayor in office when the applicant was hired in June 2012. When Mr. Duguay resigned in the spring of 2013, deputy mayor Louis-Paul Savoie replaced him. Mr. Savoie, in turn, resigned in August 2013 and was then replaced by Edith´ Duguay as deputy mayor for the municipality until Conrad Godin was sworn in on Novem- ber 7, 2013. Conrad Godin was elected on October 28, 2013. 6 In his affidavit, the applicant states that, despite the municipality’s precarious financial situation, his working relationship with the municipal council was normal and respectful until Mayor Godin was sworn in. It is fair to say that things changed once Conrad Godin was at the helm of the municipality. The applicant contends that Mayor Godin began crit- 150 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

icizing the municipal administration during the election campaign. Ac- cording to the applicant, Mayor Godin sometimes made humiliating comments about him and generally questioned his work as the municipality’s chief administrative officer. The applicant also states that the mayor would not give him an opportunity to respond to the criticisms, at least not reasonably. This dynamic continued until his departure in June 2014. 7 According to the applicant, this relationship extended even to the municipal council. The applicant states that the situation deteriorated in March 2014. The municipal council would often ask him to leave the meeting, either before or during the meeting, so that it could discuss certain items on the agenda that pertained to his duties as chief administrative officer. In short, the applicant states that he never had the opportunity to respond appropriately to the various criticisms and issues raised by the municipal council. 8 On June 23, 2014, the council held a special meeting at which the only item on the agenda was the chief administrative officer. Shortly before the special meeting scheduled for 7:00 p.m., the council held a closed-door meeting of the finance committee, which the applicant attended. The applicant was at the committee meeting for about 20 minutes before the council asked him to leave the meeting room. After about 30 minutes, the council asked him to come back. Upon his return, the mayor, on behalf of the council, listed 11 or 12 items pertaining to the applicant. The applicant took notes as best he could while the mayor was listing these items because, according to the applicant, the mayor went through them fairly quickly. 9 The applicant states that he was not given any opportunity to respond after the mayor listed what seemed to be the reasons for his dismissal. The council asked him to tender his resignation then and there in exchange for one month’s salary. The applicant declined. By way of explanation for his refusal, he stated that he knew he had statutory protection as the municipality’s chief administrative officer and that he had done nothing wrong to justify a resignation. The applicant was thinking, inter alia, of section 74(5) of the Municipalities Act, which provides that he is entitled to hold office until retirement, death, resignation, or dismissal for cause. 10 The council then advised him that it would be calling for a vote on his dismissal at the special meeting scheduled for 7:00 p.m. Following the finance committee meeting, Councillor Linda Haché informed the appli- Hébert c. Sainte-Marie-Saint-Raphael (Municipalité) J.A. Réginald Léger J. 151

cant that she would be voting in favour of his dismissal due to the earlier complaint the applicant had filed with the Human Rights Commission. It is not in dispute that in June 2014 the applicant filed a complaint with the Commission against the municipality on political belief grounds. Ac- cording to the evidence, the applicant read the complaint to the council at a closed-door meeting on June 16, 2014. 11 Turning back to the meetings held on June 23, 2014, the evidence shows that the council members held a special meeting as scheduled following the finance committee meeting. At this meeting, the municipal council voted unanimously to dismiss the applicant. The applicant states that he was not given an opportunity to make representations at the special meeting that resulted in his dismissal. He contends that he never had the opportunity prior to his dismissal to make representations before the municipal council on the reasons for that dismissal, at least not with the benefit of adequate preparation. He states that he never received written reasons explaining his dismissal. He does acknowledge, however, that the issues raised by the council at the meeting on June 23, 2014, were discussed at various meetings with the council between the months of November 2013 and June 2014. 12 The applicant’s position is that the municipality’s conduct during the period from November 2013 to June 2014 was nothing more or less than a violation of the principles of natural justice and a breach of the duty of procedural fairness the respondent owed him. He states that the respondent prevented him from knowing the case against him, in addition to precluding him from making representations within the framework of a just and equitable hearing. 13 Mayor Conrad Godin and all of the councillors filed affidavits in op- position to the application. Mayor Godin filed a very detailed affidavit explaining each of the allegations the council raised against the applicant prior to dismissing him in June 2014. 14 In addition to Conrad Godin’s affidavit, the affidavits of Councillors Linda R. Hach´e, Luc L´evesque, Paul Ferron and Cindy Chiasson, and the affidavit of municipal secretary Susie Godin, are in evidence. It should be noted that Councillor Corinne Savoie also filed an affidavit, but one in support of the applicant. I should also mention that she voted in favour of dismissing the applicant at the special meeting. Ms. Savoie explains that she felt pressured and overwhelmed, but admits that she raised her hand like the others in favour of dismissing the applicant. 152 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

15 The affidavits filed by Mayor Conrad Godin and the councillors reveal that at the closed-door meeting, the mayor listed for the applicant the cause on which the council intended to rely in making its decision at the special meeting regarding the applicant and his position as chief administrative officer. These are the complaints listed by the council at the closed-door meeting [TRANSLATION]: a) The management of the municipality’s finances; b) The accountant’s opinions; c) The assessments of the two finance committee chairs before and after November 2013; d) The irregular cheque for sums charged to the municipality as payment for sick days; e) The bill for the chief administrative officer’s lawyer; f) The issue of the DVDs; g) The executive secretary’s complaint of harassment and unfair treatment; h) Insubordination; i) The alteration or falsification of minutes; j) The wasting of council time due to ignorance of municipal policies or by-laws; k) The chief administrative officer’s failure to launch any projects for the Village; l) The council’s loss of confidence in the chief administrative officer’s performance of his financial and administrative duties; m) The chief administrative officer’s schedule. 16 I find it useful to set out the relevant parts of the affidavits of Mayor Conrad Godin and Councillors Linda Haché, Luc Lévesque and Paul Ferron regarding the discussions between the council and the applicant on the subject of the council’s various criticisms of the applicant [TRANSLATION]: Conrad Godin During the closed-door part, I went through and explained to the applicant the list of the municipal council’s grounds against him. All of these issues had already been the subject of discussion between him and the council for several months. Hébert c. Sainte-Marie-Saint-Raphael (Municipalité) J.A. Réginald Léger J. 153

Linda Hach´e This is the list of the municipal council’s complaints against the applicant, which Mayor Conrad Godin read to him at the closed-door meeting on June 23, 2014: a) The management of the municipality’s finances; b) The accountant’s opinions; c) The assessments of the two finance committee chairs before and after November 2013; d) The irregular cheque for sums charged to the municipality as payment for sick days; e) The bill for the chief administrative officer’s lawyer; f) The issue of the DVDs; g) The executive secretary’s complaint of harassment and unfair treatment; h) Insubordination; i) The alteration or falsification of minutes; j) The wasting of council time due to ignorance of municipal policies or by-laws; k) The chief administrative officer’s failure to launch any projects for the Village; l) The council’s loss of confidence in the chief administrative officer’s performance of his financial and administrative duties; m) The chief administrative officer’s schedule. All these issues had been the subject of constant discussions and ex- changes between the applicant and the members of the municipal council at all the meetings I attended between the months of Decem- ber 2013 and June 2014. Councillors Luc L´evesque and Paul Ferron make exactly the same comments in their respective affidavits. 17 The affidavits of Mayor Godin and the councillors further reveal that once the complaints had been read at the closed-door meeting, the mayor asked the applicant if he had anything to say. According to the affidavits filed by the mayor and councillors, the applicant did not want to give any explanations and simply stated that he did not have much to say. The applicant also added that he was going to sue the municipality and that “it would cost them dearly.” 154 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

18 It should be noted that the councillors’ affidavits also mention that when asked to leave the closed-door meeting, the applicant indicated that he preferred to stay and explain himself before the council. The mayor then apparently indicated that he would have the opportunity to make representations when he was asked to come back before the council. At the risk of repeating myself, when the applicant came back before the council and heard the council’s complaints against him, he opted not to explain himself or make any comments, except to add that he was going to sue the municipality and that “it would cost them dearly.” 19 In their affidavits, Mayor Conrad Godin and the councillors stated that the issues raised, for which the applicant was being criticized, had all already been under discussion with the chief administrative officer at one time or another for several months. There is no need to go over each of the issues raised with the applicant. Remember that the mayor and councillors described how each of the criticisms of the applicant had been discussed with him in the months preceding his dismissal in June 2014. The applicant does not deny having spoken with the council in the months leading up to his dismissal, except that he indicates that he never had the opportunity to explain himself fully to the council. The respondent municipality, however, submits that it did not act in breach of its duty of procedural fairness or the principles of natural justice. 20 The applicant, convinced that the municipality violated his right to procedural fairness, is asking the Court to quash the municipal council’s decision because of a lack of procedural fairness in his regard.

The Issue 21 The only issue raised by this application is whether the decision of the municipal council of Sainte-Marie-Saint-Rapha¨el to dismiss the applicant should be quashed due to a breach of the duty of procedural fairness to the applicant, or to the violation of the principles of natural justice.

Standard of Review and Principles of Procedural Fairness 22 The applicable standard of judicial review when only the procedural aspect is being considered, as it is here, is correctness. 23 In this case, both parties to the proceedings acknowledge that the applicant was entitled to procedural fairness on termination. Counsel for both parties refers to the same judgments on the subject, namely the Court of Appeal’s decision in Ouellette v. Saint-André, an incorporated Hébert c. Sainte-Marie-Saint-Raphael (Municipalité) J.A. Réginald Léger J. 155

rural community, [2013] NBCA 21, and the Supreme Court’s decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] SCC 9. 24 The applicant was a public office holder under subsections 74(1) and (2) of the Municipalities Act. It is common ground that the Court of Ap- peal found in Ouellette v. Saint-Andr´e that office holders such as the applicant were entitled to procedural fairness under the circumstances surrounding their dismissal. 25 In coming to this conclusion, Bell J. of the Court of Appeal discusses the principles set out in Dunsmuir. In Dunsmuir, Bastarache and LeBel JJ. set out two exceptions to the rule that employment disputes are governed by private law or, in other words, contract law. At paragraphs 115 and 116, the Supreme Court describes the two factual situations in which procedural fairness still applies on the dismissal of an office holder such as the applicant: [115] The dismissal of a public employee should therefore generally be viewed as a typical employment law dispute. However, there may be occasions where a public law duty of fairness will still apply. We can envision two such situations at present. The first occurs where a public employee is not, in fact, protected by a contract of employment. This will be the case with judges, ministers of the Crown and others who “fulfill constitutionally defined state roles” (Wells, at para. 31). It may also be that the terms of appointment of some public office holders expressly provide for summary dismissal or, at the very least, are silent on the matter, in which case the office holders may be deemed to hold office “at pleasure” (see e.g. New Brunswick Interpretation Act, s. 20; Interpretation Act, R.S.C. 1985, c. I-21, s. 23(1)). Because an employee in this situation is truly subject to the will of the Crown, procedural fairness is required to ensure that public power is not exercised capriciously. [116] A second situation occurs when a duty of fairness flows by necessary implication from a statutory power governing the employment relationship. In Malloch, the applicable statute provided that dismissal of a teacher could only take place if the teacher was given three weeks’ notice of the motion to dismiss. The House of Lords found that this necessarily implied a right for the teacher to make representations at the meeting where the dismissal motion was being considered. Otherwise, there would have been little reason for Parlia- ment to have provided for the notice procedure in the first place (p. 1282). Whether and what type of procedural requirements result from a particular statutory power will of course depend on the specific wording at issue and will vary with the context (Knight, at p. 682). 156 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

26 In Ouellette, supra, Bell J. discusses the exceptions identified in Dun- smuir. At paragraphs 15 to 19, he writes: [15] Like the Court in Cronkhite, I conclude the provisions of the Act, by necessary implication, infuse a duty of fairness into the contractual relationship between Ms. Ouellette and Saint-André. In her book Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008), Ruth Sullivan explains that an intention is “necessarily implied if (1) it can be established using ordinary interpretation techniques and (2) the implication is essential to make sense of the legislation or to implement its scheme” (p. 183). I conclude a duty of fairness arises by implication for the following reasons. [16] First, in Dunsmuir, the contractual relationship was governed by s. 20 of the Civil Service Act, S.N.B. 1984, c. C-5.1 which provides: 20 Subject to the provisions of this Act or any other Act, termination of the employment of a deputy head or an employee shall be governed by the ordinary rules of contract. 20 Sous réserve de la présente loi ou de toute autre loi, la cessation d’emploi d’un administrateur général ou d’un employé est régie par les règles contractuelles ordinaires. No such provision is found in the Municipalities’ Act, nor is there any provision which incorporates the Civil Service Act into the procedures for the hiring and firing of municipal employees. In Dun- smuir, the employer preserved unto itself the right to fire with or without cause. A termination without cause could therefore be made at any time, provided adequate notice was given. As the Supreme Court explained in Canada (Attorney General) v. Mavi, 2011 SCC 30 (CanLII), [2011] 2 S.C.R. 504: “Dunsmuir dealt with an employment relationship that was found by the Court to be governed by contract. The fact the contracting employee was a senior public servant did not turn a private claim for breach of contract into a public law adjudication” (para. 48). In contrast, Saint-André could not have terminated Ms. Ouellette without cause under any circumstances. Had the legislature wished to ensure the relationship between Chief Administra- tive Officers and their employers was to be governed uniquely by contract, it could very easily have incorporated the wording of s. 20 of the Civil Service Act into the Municipalities’ Act. I would note that s. 190.077(7) came into force on April 14, 2005, long after the decisions in Knight v. Indian Head School Division No.19, Hughes v. Moncton (City), and Gerrard v. Sackville (Town). Had the legislator wished to avoid the consequences of those decisions, it could have acted accordingly. Hébert c. Sainte-Marie-Saint-Raphael (Municipalité) J.A. Réginald Léger J. 157

[17] Second, Mr. Dunsmuir benefited from the provisions of the Pub- lic Service Labour Relations Act, R.S.N.B. 1973, c. P-25, particularly ss. 92(1), 97(2.1) and 100.1. The combined effect of these provisions would have provided Mr. Dunsmuir the opportunity to challenge a for cause dismissal. Had the employer terminated him for cause, he would have had the opportunity, without commencing court action, to have an independent third party determine whether cause existed. Such a hearing mechanism, absent the institution of court proceedings, is unavailable to Ms. Ouellette. There are strong policy reasons for ensuring that governmental decisions (municipal, provincial or otherwise), with respect to termination of public office holders, are not arbitrary and are made in good faith. Those policy reasons include, but are not limited to: (1) ensuring public office holders feel confident to advise elected officials, based upon their own opinion, rather than what they think the elected officials wish to hear; and (2) ensuring public office holders administer and enforce applicable legislation, objectively and fairly, without fear of reprisals from elected officials. This observation is not meant in any way to question the sound judgment and good faith of elected officials in carrying out their responsibilities. It is meant to highlight the importance of an impartial public service in the management of affairs of the state. I am of the view the nature of Ms. Ouellette’s employment, absent an objective non-curial adjudicative process for determining whether cause exists, as was the case in Dunsmuir, militates in favour of a finding that she is entitled to procedural fairness on termination. Just as Dunsmuir is distinguishable because of the application of the Civil Service Act, it can also be distinguished because of the presence of the procedure set out in the Public Service Labour Rela- tions Act. Mr. Dunsmuir had access to a non-curial review process. Ms. Ouellette does not. [18] Third, the Act provides Ms. Ouellette with significant job security. She can only be terminated with cause, and then by a minimum vote of 2/3 of the whole Council. The trial judge considered these two factors militated in favour of a finding that Ms. Ouellette was not entitled to procedural fairness on termination. I would respectfully disagree. To the contrary, joint requirements of cause and a 2/3 majority would lead one to conclude that Ms. Ouellette was entitled to an opportunity to address Council. In my view, it would not be reasonable for the Legislature to impose such stringent conditions on termination, particularly the percentage vote by Council, without in- tending to provide the public officer an opportunity to respond and present her position to Council. I consider the circumstances in this case are akin to those in Malloch v. Aberdeen Corp., [1971] 2 All 158 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

E.R. 1278, where the statute provided that a teacher could only be dismissed by the education committee on three weeks’ notice of the motion to dismiss. The Court concluded the requirement for notice implied a right of the teacher to attend and make representations. In the same manner that the requirement of “notice” implied the right to procedural fairness in Malloch, the combination of just cause and a vote of Council imply the right to procedural fairness in this case. [19] Fourth, given the clear language of s. 190.077(7), the financial cost of error by the Council with respect to the issue of “just cause” could be high. Presume that a Chief Administrative Officer is dismissed and has no opportunity to explain his or her position. Presume also that that explanation would clarify the matter and obviate any cause upon which Council thought it could rely. Presume also that the Chief Administrative Officer commences court action and seeks reinstatement. Following protracted and expensive litigation, including the issuance of pleadings, discovery and trial, the rural community could find itself with a reinstated administrator entitled to significant back pay. Surely, the Legislature did not intend that the only opportunity a Clerk, Treasurer or Chief Administrative Officer would have to respond to allegations of cause would be in Court, when a very simple process before Council might resolve the issues and prevent significant wasting of costs. 27 Applying the principles reflected in the Court of Appeal’s decision in Ouellette, I find that the applicant was entitled to procedural fairness on dismissal. 28 However, as counsel for the respondent points out in his submission, paragraph 24 of Bell J.’s decision in Ouellette is instructive in this case. At paragraph 24, Bell J. writes: [24] I am not satisfied the procedural fairness to which Ms. Ouellette was entitled compares to that afforded most employees governed by collective agreements, where the features of procedural fairness are prescribed by contract; nor can her right to procedural fairness be compared to those persons subject to a professional governing body where there exists a statutorily mandated code of procedural fairness. Here, the features of procedural fairness must not unduly hamper the effectiveness of Council’s responsibilities toward its citizens in this and other matters. It must not have the potential to become a procedural gridlock, which might function as a means unto itself, with ever expanding claims to “fairness”. The procedural fairness required in this case must, in my view, be minimal, yet reasonable and efficient. Those minimal features consist of an opportunity to know the concerns about one’s performance that could lead to termination, and an Hébert c. Sainte-Marie-Saint-Raphael (Municipalité) J.A. Réginald Léger J. 159

opportunity to explain them or demonstrate why they have no merit. Obviously, an appropriate opportunity should be afforded to the office holder to make the necessary enquiries and prepare a response. Whether that response is in writing or in person, would no doubt be a matter to be determined by the Council. 29 As we can see, the level of procedural fairness to be applied by a municipality on dismissal is, therefore, minimal, reasonable and efficient. The required features of procedural fairness must not unduly hamper the effectiveness of a municipal council in the fulfilment of its responsibilities toward its citizens. It is likewise important to remember that the required features of procedural fairness must also not become a procedural gridlock. 30 Finally, it is important to note what the Supreme Court of Canada has to say on the concept of procedural fairness in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] 699 SCC: (...) “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. 31 I must now apply these well-established principles of procedural fairness to determine whether the respondent met its duty of procedural fairness toward the applicant on his dismissal in June 2014.

Position of the Parties 32 The applicant contends that under the circumstances of this case, the municipality breached its duty of procedural fairness toward him when it dismissed him. According to the applicant, the timing of the circumstances surrounding the dismissal is of paramount importance in this case. In his view, the circumstances that should be considered are those closer to the date of the decision to dismiss him and not the entire period under Mayor Godin’s leadership from November 2013 to June 2014. In this case, the applicant claims he was not granted a meeting for the sole purpose of allowing him to explain himself before the council, especially with the benefit of adequate preparation and full knowledge of the council’s complaints against him. The applicant also claims he was not given the opportunity to make the necessary enquiries and submit responses either in writing or in person as described by Bell J. in Ouellette. The applicant further claims that from the time the mayor was elected, the dynamics on the council were such that he was never able to access the minimal, reasonable and efficient conditions required to explain himself and make representations reasonably and fairly. 160 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

33 He underpins his argument with several examples where he was not given a fair opportunity to explain himself before the council. On some of these occasions, the council even asked him to leave the meeting although he asked to stay and explain himself. According to the applicant, everything was in place to prevent him from accessing minimal, efficient and reasonable conditions in relation to the various issues the council might have with his administration. By way of example of the dynamic between him and the council, the applicant refers the Court to the affidavit of Councillor Corinne Savoie, in which she states at paragraph 22 [TRANSLATION]: The mayor constantly interrupted the applicant while he was trying to offer this explanation to the council, not giving the applicant any opportunity to be heard by the council. 34 In short, the applicant submits that the council did not give him a fair hearing at the time of his dismissal. The applicant further submits that the evidence on which the council relied to invoke the nonspecific ground of his “administrative incompetence” was never disclosed to him. 35 In conclusion, the applicant submits that in light of the more recent circumstances of the dismissal, especially around the time the decision was made at the special and closed-door meetings, his right to procedural fairness was violated and, as a result, the reviewing court should quash the decision. 36 The respondent submits the contrary, i.e., that it acted at all times in accordance with the principle of procedural fairness to which the applicant was entitled as an employee. According to the respondent, a contextual inquiry into the events that culminated in the applicant’s dismissal inevitably leads to the conclusion that the duty of procedural fairness owed to the applicant was met and, as a result, there is no reason to quash the council’s decision to dismiss him. 37 The respondent, through its counsel, cautions the court seized of the review application against accepting the applicant’s argument, which could, in the respondent’s view, become the procedural gridlock that Bell J. warns of in Ouellette. In support of its claim that it met its duty of procedural fairness toward the applicant, the respondent submits that the applicant had several opportunities to make representations about the complaints raised by the council between the months of November 2013 and June 2014. 38 The respondent makes a point of stressing the opportunity the applicant was given to make representations at the closed-door meeting, of Hébert c. Sainte-Marie-Saint-Raphael (Municipalité) J.A. Réginald Léger J. 161

which he did not take advantage. According to the respondent, he preferred to tell the council that “it would cost them dearly.” In order to demonstrate even more convincingly that the applicant had a reasonable opportunity to make representations, the respondent drew on the evidence in stressing that its duty of procedural fairness was met not only in a broad sense, but also more specifically in relation to each of the criticisms on which the municipality based its decision to dismiss the applicant. 39 The respondent addressed many, if not all, of its criticisms of the applicant in order to demonstrate that the applicant was heard and treated reasonably. I note, for example, the bill from the applicant’s lawyer for writing a letter asking Mayor Godin to apologize to him at the next public meeting. The bill was for approximately $480, and the applicant wanted the municipality to pay it. The council and applicant discussed the matter, and the council refused. According to the respondent, the applicant had plenty of time to respond to this complaint, which was one of the 11 criticisms that Mayor Godin listed at the meeting that preceded the meeting at which council voted unanimously to dismiss him. 40 Another example of a serious dispute raised by the council at the same meeting was that the applicant had paid himself for unused sick days. The cheque was in the amount of $4,838.58 before deductions. The council was concerned that its chief administrative officer had paid himself for sick days without the council’s approval. In order to show that the applicant was well aware of the matter and that he did indeed have an opportunity to explain himself, the respondent brought to the Court’s attention the fact that the applicant had entered into a repayment agreement on June 16, 2014. The evidence of this is the agreement signed by the applicant. In the municipality’s view, the applicant clearly cannot reasonably claim he did not have an opportunity to explain himself on this issue in particular. 41 The respondent contends that the same is true of all its complaints against the applicant and that the council also gave him one final chance to explain himself again, which he declined as he preferred to tell them that he was going to sue and that “it would cost them dearly.” On this specific point, the respondent submits that it is hard to imagine what the applicant could have added had he opted to explain himself further when Mayor Godin, on behalf of the municipal council, offered him the opportunity to explain himself or to respond to the criticisms the mayor had listed. In light of the circumstances surrounding the council’s decision to 162 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

dismiss the applicant, the respondent submits that it met its duty of procedural fairness toward the applicant.

Analysis and Decision 42 The case law reviewed above instructs us that the features of procedural fairness required in the context of a dismissal by a municipality must be minimal, reasonable and efficient. The required features must not become a procedural gridlock that could unduly hamper the effectiveness of a council in the fulfilment of its responsibilities toward its fellow citizens. Remember that “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.” 43 Context is therefore important to the determination of the main issue in this case. Both parties to the proceedings are asking the Court to consider the decision to dismiss the applicant in its context. In the applicant’s view, the material period the Court should consider is primarily the one most contemporaneous with the date of dismissal. 44 The respondent, on the other hand, is of the opinion that in this case the context should include the entire period surrounding the events that led to the applicant’s dismissal. Under the specific circumstances of this case, it is my view that all of the circumstances that led to the applicant’s dismissal should be taken into consideration. This, moreover, is exactly what LaVigne J. did in Ouellette v. Saint-André, [2013] N.B.J. No. 80, and the Court of Appeal approved of her approach. 45 I, therefore, intend to consider the whole of the context going back to November 2013 in determining whether the respondent respected the applicant’s right to procedural fairness in this case. 46 Where an office holder such as the applicant has been dismissed, it is important to ensure that minimal, reasonable and efficient features of procedural fairness were applied, while also making sure to strike a balance so that those required features do not become a procedural gridlock. This is always the challenge before a judge who has to determine issues of procedural fairness where an office holder has been dismissed. 47 It is settled law that the applicant, to whom the respondent owed a duty of procedural fairness, was entitled to know the council’s complaints against him as the municipality’s chief administrative officer. Af- ter carefully reviewing the circumstances surrounding the applicant’s dismissal, I find that he was made reasonably aware of the cause for his termination. In my view, the list of complaints the mayor read to the Hébert c. Sainte-Marie-Saint-Raphael (Municipalité) J.A. Réginald Léger J. 163

applicant at the closed-door meeting had already been known to the applicant for some time. The applicant surely had a general idea of the council’s complaints. Some of them had been discussed and others had even been resolved to the satisfaction of the parties. 48 The applicant was not entitled to be informed of every detail of the complaints against him. However, he cannot claim not to have had a general idea of all the complaints listed to him on June 23, 2014. He had enough details of the complaints to respond to them. In short, I am not satisfied on the evidence that the applicant was not sufficiently aware of the council’s complaints against him. 49 Based on the evidence, it seems clear to me that the applicant and the mayor had been at loggerheads since at least November 2013. I must say, however, that the applicant did not help his situation by paying himself for unused sick leave without council’s approval and by attempting to obtain payment for his legal fees, once again without the council’s prior approval. This is compounded by the criticisms of his own council on the radio and a complaint against the municipality filed with the Human Rights Commission. When I consider the evidence on the latter point, I find that there is no connection between the complaint to the Commis- sion and the applicant’s dismissal, contrary to what the applicant suggests in his affidavit. 50 In addition to the right to know the council’s complaints against him, the applicant was entitled to make representations or, in other words, to explain himself to the council before it made the decision to dismiss him from his position as chief administrative officer. I am satisfied on the totality of the evidence that the applicant was given sufficient opportunity to make representations about the council’s complaints against him. There were a number of occasions when he could have explained his position on the various shortcomings in his work as the municipality’s chief administrative officer of which the council and Mayor Godin com- plained. He was entitled to make representations on the relevant issues on which his dismissal was based. The applicant had the opportunity to respond appropriately as and when certain failings were brought to his attention. The right to procedural fairness does not entitle the applicant to respond in detail to every shortcoming attributed to him, but simply to respond appropriately to the municipality’s complaints against him. 51 Considering the circumstances of the case, I am of the view that the applicant had the opportunity to present his point of view and to influence the decision makers who would be determining his fate. Even more 164 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

importantly, when he was informed at the closed-door meeting of the cause on which council was relying, the applicant chose to tell them that he would see them in court and that it would cost them dearly. He had the opportunity to make representations and did not take advantage of it. He did not even ask the council for some time to explain himself further with or without a lawyer present. 52 The council had lost confidence in its chief administrative officer for the reasons listed for the applicant. The relationship between Mayor Godin and the applicant, which had started off strained and difficult, did not really improve. It even deteriorated, with the known result. 53 Considering the context as a whole, I am of the opinion that the minimal, reasonable and efficient features of procedural fairness to which the applicant was entitled were observed under the circumstances. I find that the applicant’s right to procedural fairness was respected and therefore that there was no breach of the duty of procedural fairness owed to the applicant. For these reasons, I dismiss the application for review and order the applicant to pay the respondent costs in the amount of $1,500, including disbursements. Application dismissed. Raczynska v. Alberta (Human Rights Commission) 165

[Indexed as: Raczynska v. Alberta (Human Rights Commission)] Krystyna Raczynska, Plaintiff and Alberta Human Rights Commission, Defendant Alberta Court of Queen’s Bench Docket: Edmonton 1403-06000 2015 ABQB 494 Robert A. Graesser J. Heard: May 19, 2015 Judgment: July 31, 2015 Human rights –––– Practice and procedure — Commissions, tribunals and boards of inquiry — Parties — Adding or striking parties –––– Applicant, R, unsuccessfully applied for position with P Corp. — P Corp. employee later called R to inquire if she might be interested in job and asked R how old she was — When R stated that question could not be asked, employee hung up — R filed complaint with human rights commission — Investigator recommended that P Corp. pay R damages of $2,500 — After initial rejection of offer, R verbally accepted in discussions with investigator and P Corp. agreed to pay $2,500 — On July 25, 2013, commission sent R settlement agreement, which had already been signed by P Corp. — When there was no reply, follow-up attempts were made by commission to contact R — On August 22, 2013, director wrote R by registered mail offering his opinion that $2,500 offer was “fair and reasonable” and that if she did not accept settlement within 21 days, he would send notice of discontinuance of her claim under s. 22(1)(b) of Alberta Human Rights Act — Letter was returned to commission marked “moved” — On Sep- tember 26, 2013, director wrote R discontinuing complaint and advising that she had 30 days from date of receipt of notice of discontinuance within which to appeal director’s decision — On November 1, 2013, R replied that she wished to have review of discontinuance of her complaint — R agreed with settlement and explained that she was in hospital and had, therefore, been unable to receive correspondence in person — On February 26, 2014, chief commissioner upheld director’s decision to discontinue R’s complaint — R brought application for judicial review of commissioner’s decision — Application dismissed — Applica- tion described respondent as “Office of the Chief of the Commission and Tribu- nals” — P Corp. was listed as respondent in human rights complaint, but not on application for judicial review — Proper respondent to judicial review is respondent in human rights complainant — Chief commissioner unsuccessfully applied to add P Corp. as respondent pursuant to R. 3.75 and 3.76 of Alberta Rules of 166 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Court — R was aware of commission’s position that P Corp. had to be served with required documents, and that it was R’s responsibility to do so — P Corp. was not party to these proceedings as commission’s application to add it was rejected — R took no steps to add P Corp. as party, therefore application had become moot — Jurisprudence makes clear requirement to include respondent to human rights complaint as party to any judicial review of commission’s decision — Jurisprudence also clear that time for serving respondent is firm deadline that cannot be extended. Human rights –––– Practice and procedure — Judicial review — Standard of review –––– Issues in present case did not involve matters outside core of mandate and expertise of human rights commission and human rights commissioner, nor did they involve issues of general importance to legal system so as to fall within exceptions to reasonableness standard of review — Application dismissed. Cases considered by Robert A. Graesser J.: A.T.A. v. Alberta (Information & Privacy Commissioner) (2011), 2011 SCC 61, 2011 CarswellAlta 2068, 2011 CarswellAlta 2069, 339 D.L.R. (4th) 428, 28 Admin. L.R. (5th) 177, 52 Alta. L.R. (5th) 1, [2012] 2 W.W.R. 434, (sub nom. Alberta Teachers’ Association v. Information & Privacy Commissioner (Alta.)) 424 N.R. 70, (sub nom. Alberta (Information & Privacy Commissioner) v. Alberta Teachers’ Association) [2011] 3 S.C.R. 654, [2011] S.C.J. No. 61, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 519 A.R. 1, (sub nom. Alberta Teachers’ Association v. Information and Privacy Commissioner) 539 W.A.C. 1 (S.C.C.) — followed British Columbia (Securities Commission) v. McLean (2013), 2013 SCC 67, 2013 CarswellBC 3618, 2013 CarswellBC 3619, 366 D.L.R. (4th) 30, [2014] 2 W.W.R. 415, (sub nom. McLean v. British Columbia Securities Commis- sion) 452 N.R. 340, 53 B.C.L.R. (5th) 1, (sub nom. McLean v. British Columbia (Securities Commission)) [2013] 3 S.C.R. 895, [2013] S.C.J. No. 67, (sub nom. McLean v. British Columbia Securities Commission) 347 B.C.A.C. 1, (sub nom. McLean v. British Columbia Securities Commission) 593 W.A.C. 1, 64 Admin. L.R. (5th) 237 (S.C.C.) — followed Canada (Attorney General) v. Mowat (2011), 2011 SCC 53, 2011 CarswellNat 4190, 2011 CarswellNat 4191, 93 C.C.E.L. (3d) 1, 337 D.L.R. (4th) 385, 26 Admin. L.R. (5th) 1, D.T.E. 2011T-708, 422 N.R. 248, [2011] S.C.J. No. 53, [2011] A.C.S. No. 53, (sub nom. C.H.R.C. v. Canada (A.G.)) 2011 C.L.L.C. 230-043, (sub nom. Canada (Canadian Human Rights Commission) v. Canada (Attorney General)) [2011] 3 S.C.R. 471, (sub nom. Canada (Human Rights Comm.) v. Canada (Attorney General)) 73 C.H.R.R. D/30 (S.C.C.) — followed Raczynska v. Alberta (Human Rights Commission) 167

Canada (Director of Investigation & Research) v. Southam Inc. (1997), 144 D.L.R. (4th) 1, 71 C.P.R. (3d) 417, [1997] 1 S.C.R. 748, 209 N.R. 20, [1996] S.C.J. No. 116, 50 Admin. L.R. (2d) 199, 1997 CarswellNat 368, 1997 Car- swellNat 369 (S.C.C.) — followed F. Prins Potatoes Ltd. v. Agriculture Financial Services Corp. (2015), 2015 ABQB 335, 2015 CarswellAlta 931 (Alta. Q.B.) — followed Greater St. Albert Roman Catholic Separate School District No. 734 v. Buterman (2014), 2014 ABQB 14, 2014 CarswellAlta 72, 570 A.R. 39, 78 C.H.R.R. D/227 (Alta. Q.B.) — considered Heikkila v. Alberta (Workers’ Compensation Board Appeals Commission) (2003), 2003 ABQB 544, 2003 CarswellAlta 1299, 21 Alta. L.R. (4th) 293, [2003] A.J. No. 1132, 10 Admin. L.R. (4th) 115, 347 A.R. 174 (Alta. Q.B.) — followed Leon’s Furniture Ltd. v. Alberta (Information & Privacy Commissioner) (2011), 2011 ABCA 94, 2011 CarswellAlta 453, 22 Admin. L.R. (5th) 11, 45 Alta. L.R. (5th) 1, [2011] 9 W.W.R. 668, 502 A.R. 110, 517 W.A.C. 110, [2011] A.J. No. 338 (Alta. C.A.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 SCC 62, 2011 CarswellNfld 414, 2011 CarswellNfld 415, D.T.E. 2012T-7, 340 D.L.R. (4th) 17, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 213 L.A.C. (4th) 95, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, 97 C.C.E.L. (3d) 199, 38 Admin. L.R. (5th) 255 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 2008 SCC 9, 2008 CarswellNB 124, 2008 CarswellNB 125, D.T.E. 2008T-223, [2008] S.C.J. No. 9, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, 64 C.C.E.L. (3d) 1, 69 Imm. L.R. (3d) 1, 69 Admin. L.R. (4th) 1, 372 N.R. 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, [2008] A.C.S. No. 9, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, 2008 CSC 9 (S.C.C.) — followed Ryan v. Law Society (New Brunswick) (2003), 2003 SCC 20, 2003 CarswellNB 145, 2003 CarswellNB 146, [2003] S.C.J. No. 17, 223 D.L.R. (4th) 577, 48 Admin. L.R. (3d) 33, 302 N.R. 1, 31 C.P.C. (5th) 1, 257 N.B.R. (2d) 207, 168 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

674 A.P.R. 207, (sub nom. Law Society of New Brunswick v. Ryan) [2003] 1 S.C.R. 247, REJB 2003-39404, 2003 CSC 20 (S.C.C.) — followed Silverman v. Alberta (Human Rights Commission) (2012), 2012 ABQB 152, 2012 CarswellAlta 429, 66 Alta. L.R. (5th) 408, [2012] A.J. No. 275 (Alta. Q.B.) — considered Walsh v. Mobil Oil Canada (2013), 2013 ABCA 238, 2013 CarswellAlta 1109, [2013] 9 W.W.R. 56, 82 Alta. L.R. (5th) 146, 2013 C.L.L.C. 230-032, 553 A.R. 360, 583 W.A.C. 360, 364 D.L.R. (4th) 508, [2013] A.J. No. 695, 77 C.H.R.R. D/361 (Alta. C.A.) — followed Statutes considered by Robert A. Graesser J.: Alberta Human Rights Act, R.S.A. 2000, c. A-25.5 Generally — referred to s. 22(1)(b) — considered s. 26(1) — considered Limitations Act, R.S.A. 2000, c. L-12 Generally — referred to Rules considered by Robert A. Graesser J.: Alberta Rules of Court, Alta. Reg. 124/2010 Generally — referred to R. 3.15(2) — considered R. 3.75 — considered R. 3.76 — considered R. 13.5 — considered Alberta Rules of Court, Alta. Reg. 390/68 Generally — referred to

APPLICATION for judicial review of chief commissioner to uphold director’s decision to discontinue human rights complaint.

Krystyna Raczynska, Plaintiff, for herself Janice R. Ashcroft, Q.C., for Defendant Dr. Yousif Chaaban, for himself, for Yousif Chaaban Professional Corporation

Robert A. Graesser J.: Introduction 1 Krystyna Raczynska seeks judicial review of the decision of the Chief Commissioner of the Commission and Tribunals dated February 26, 2014. 2 In that decision, The Chief Commissioner upheld the decision of the Director who discontinued Ms. Raczynska’s complaint. Raczynska v. Alberta (Human Rights Commission) Robert A. Graesser J. 169

3 The application was initially set to be heard on January 22, 2015. At that time, a procedural issue arose as to whether the Respondent, Yousif Chaaban Professional Corporation, should be added as a respondent. The Commission and not Ms. Raczynska sought to have the Professional Corporation added as a party. 4 In its brief filed January 9, 2015, the Commission stated: The proper respondent to this judicial review is the respondent in the human rights complainant, citing Leon’s Furniture Limited v Al- berta (Information and Privacy Commissioner), 2011 ABCA 94). The Chief Commissioner seeks to add the Respondent at the hearing of this matter on January 22, 29015 pursuant to rules 3.75 and 3.76. [Leon’s Furniture Ltd. v. Alberta (Information & Privacy Commis- sioner), 2011 ABCA 94 (Alta. C.A.)] 5 The Alberta Human Rights Commission noted that Ms. Raczynska had not served the Professional Corporation within the time prescribed in the Rules of Court. 6 At the hearing on January 22, 2014, Dr. Chaaban appeared for the Professional Corporation and objected to the application. He had previously filed limited submissions on the jurisdiction issue after having been contacted by the Commission. 7 I adjourned the application to May 19 so Ms. Raczynska could respond to the issues raised by the Professional Corporation and so the application itself could be argued.

Background 8 Ms. Raczynska is a registered dental assistant. Her name was on an “on call” list for temporary dental assistants through the Edmonton Den- tal Assistants’ Association. She had applied for a dental assistant position with the Professional Corporation sometime before June, 2014 but had been unsuccessful. 9 On June 14, 2011 she received a telephone message from an employee of the Professional Corporation (later identified as “SG”) inquir- ing if Ms. Raczynska might be interested in applying for a possible job there. When she returned the call, she was asked “how old are you?” 10 When Ms. Raczynska said something to the effect “you can’t ask that”, SG hung up. 11 Ms. Raczynska then filed a complaint to the Alberta Human Rights Commission. 170 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

12 The Professional Corporation responded to the complaint explaining that Ms. Raczynska had been interviewed previously and a decision was made not to hire her based on the interview. SG had not recognized Ms. Raczynska’s name, but recognized Ms. Raczynska’s voice when Ms. Raczynska returned the call, and asking her age, or if she was “an older woman”, was her clumsy way of trying to determine if the caller was the same person who had been interviewed previously. 13 The Commission investigated, and concluded in a report dated May 2, 2013 that: ...there is a reasonable basis to proceed to the next step in the complaint process. The parties are requested to address the remedy recommended below: Yousif Chaaban Professional Corporation provides Raczynska with damages to dignity and injury to self-respect for being asked her age and for the lost opportunity to interview for a job. 14 Following that report, the investigator recommended the amount of $2,500. 15 Ms. Raczynska wrote the Commission on May 13, 2013 saying “she would like to dispute and change (M’s) recommendations regarding my complaint. I am satisfied with the conclusions of her investigations, but the remedy Ms. (M) is suggesting I perceive as completely improper and inadequate to the situation.” 16 She concluded, “I refuse to settle now, based on M’s recommendation. I request removing her from my case, I would like another opinion, appeal the verdict and take my complaint to the next level”. 17 The Notice of Discontinuance dated September 26, 2013 (discussed below) provides some of the chronology not detailed in written communications. After the May 2 report, the investigator recommended the amount of $2,500 to the Northern Director for the Commission. The Northern Director confirmed her support for that amount. Ms. Raczynska had been seeking $10,000, but on June 3, 2013, she verbally agreed to accept that amount in discussions with the investigator. On July 4, the Professional Corporation agreed to pay $2,500 to settle the matter in a discussion with the investigator. 18 On July 25, 2013, the Commission sent Ms. Raczynska a settlement agreement, which had already been signed by the Professional Corporation. Raczynska v. Alberta (Human Rights Commission) Robert A. Graesser J. 171

19 According to the Notice of Discontinuance, follow-up attempts were made by the Commission to contact Ms. Raczynska on July 29, August 1, 13, 14, 17, 18 and 19. These were by way of letter, telephone calls and personal visits to the contact information provided by Ms. Raczynska. 20 On August 22, 2013, the Director wrote Ms. Raczynska by registered mail offering his opinion that the $2,500 offer was “fair and reasonable”. He stated: As I believe that the settlement offered by the Respondent is fair and reasonable, I can determine no basis on which I could forward this complaint for a human rights tribunal hearing. Therefore, I am prepared to discontinue this complaint if you do not accept the settlement. 21 He advised that if she accepted the settlement, he would send a memorandum and release for her signature. If she did not accept within 21 days, he would send a notice of discontinuance of her claim under s 22(1)(b) of the Act (the Alberta Human Rights Act, RSA 2000, c A 25.5). 22 He noted that if he discontinued the complaint, she would have a right of appeal under s 26(1) of the Act. 23 Commission records show that this letter was not received at the address given by Ms. Raczynska in her letter of May 13, 2013. 24 Another registered letter was sent to Ms. Raczynska on August 29, 2013 at the same address. This letter resent the August 22, 2013 letter and gave her 21 days from August 29, 2013 to respond. 25 That letter was returned to the Commission marked “moved”. 26 On September 26, the Director wrote Ms. Raczynska discontinuing the complaint and advising that she had 30 days from the first of the date of receipt of the Notice of Discontinuance, or November 4, 2013 within which to appeal the Director’s decision. 27 The September 26 letter was sent registered mail to the same address, and was returned to the Commission. 28 The September 26 package was resent to Ms. Raczynska on October 2, at the same address. 29 On November 1, Ms. Raczynska wrote the Commission stating: I would like to have review my complaint that has been discontinued. The reason I did not receive the mail is that I went to hospital and still remain in hospital, so I was not able to receive your correspondence in person. Please be informed that I perceive your judgement as fair and I agree with a settlement. 172 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

30 On November 18, 2013, the Commission notified the Professional Corporation of Ms. Raczynska’s request for review and invited his reply. Dr. Chaaban responded objecting to the review, and provided his reasons. 31 On February 26, 2014, the Chief Commissioner issued a Record of Decision. His decision upheld the Director’s decision to discontinue the complaint. 32 The Chief Commissioner agreed with the Investigation Report and noted that “Ms. Raczynska’s age should not have been asked in the phone call between Ms. G and Ms. Raczynska.” He stated that “there was a reasonable basis to proceed with the complaint”. 33 The Chief Commissioner stated at pages 4 and 5 of his decision: The information is that the parties were prepared to settle this Com- plaint for damages in the amount of $2,500. A settlement agreement to that effect was mailed to the Respondent on July 4, 2013 and was signed by the Respondent on July 10, 2013. The settlement agreement was then sent to Ms. Raczynska on July 25, 2013 by mail and the Commission made several attempts, including letters, telephone calls and personal visits to the contact information provided by Ms. Raczynska. The information is that every possible effort was made by the Commission to attempt to finalize the settlement between the parties from June 3, 2013, when Ms. Raczynska verbally agreed to the amount of damages until September 26, 2013 when the Director discontinued the Complaint. The information is that Ms. Raczynska was prepared to accept the amount of the settlement. It appears she only takes issue with the discontinuance by the Director because she was in the hospital. In my view, the amount of the settlement was fair and reasonable. From the information, the Respondent was prepared to settle for $2,500 and signed the settlement agreement in good faith. When Ms. Raczynska did not sign the settlement agreement, the Commission went to significant lengths to locate her and gave Ms. Raczynska every reasonable opportunity to attempt to finalize the matter. I acknowledge, and it is unfortunate, that Ms. Raczynska appears to have been in the hospital for some of that time frame. However, other than the letter-head used for the November 1, 2013 Request for Review, there is no information provided by Ms. Raczynska confirming her illness, length of her hospitalization, or whether she had made alternate arrangements for her mail to be redirected or collected. In my view, it was Ms. Raczynska’s responsibility, especially over a span of almost four months, to keep the Commission advised of her Raczynska v. Alberta (Human Rights Commission) Robert A. Graesser J. 173

whereabouts, have her mail redirected or collected, and take reasonable steps to finalize the settlement, if it was her intention to conclude this matter. 34 He concluded: The information strongly supports that the proposed settlement was fair and reasonable and that the Director took reasonable steps to finalize the matter before discontinuing the Complaint. I therefore uphold the decision of the Director to discontinue the Complaint. (page 5) 35 On April 24, 2014, Ms. Raczynska filed this application seeking judicial review of the Chief Commissioner’s decision. The Application was filed describing the Defendant as “Office of the Chief of the Commission and Tribunals”. Yousif Chaaban Professional Corporation appeared as a Respondent in Ms. Raczynska’s Brief filed December 17, 2014 for the application set for January 22, 2015. No amendment to the style of cause had been sought by Ms. Raczynska and she had not then applied to add the Professional Corporation as a party. 36 Ms. Raczynska’s affidavit in support of the application states that she “remained in hospital from June 29, 2013 until December 6, 2013, and that she did not have a forward(ing) address during that period and was unable to receive any correspondence”. 37 Attached to her affidavit are letters from a doctor advising that Ms. Raczynska was in hospital under his care for that period. He also stated: During this time she was unable to attend to matters regarding her financial/human rights claim due to significant depression requiring hospitalization.” 38 Dr. Chaaban responded to the Commission’s brief seeking to add him as a Respondent, stating: 1. I never received anything in regards to me being filed as a respondent; 2. I believe the Commissioner was reasonable in his decision; and 3. As a sign of good faith and sympathy for her hospitalization, on January 8, 2015, I presented an offer of $2,500.00 to Ms. Raczyn- ska through legal counsel for the Commissioner’s office; Janice Ashcroft. Ms. Raczynska rejected the offer, and as such I with- drew my offer when she was insistent on coming to court. 174 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Preliminary Issue 39 Ms. Raczynska has objected to Ms. Ashcroft’s conduct in providing copies of decisions from the Court of Queen’s Bench on the filing time issue and supporting the Professional Corporation’s argument that nothing had been provided to the Professional Corporation or Dr. Chaaban by Ms. Raczynska within the period specified for brining judicial review applications. She considers that Ms. Ashcroft overstepped her neutral position. 40 Ms. Ashcroft, as an officer of the Court involved in a proceeding in which her client is a party, has an obligation to ensure that the Court is aware of relevant case law. This is important, as the Courts rely on the parties to put the relevant case law before them. 41 Ms. Ashcroft performed this task in accordance with her role as counsel and acted entirely appropriately. Any criticism of her is unfounded. 42 The position taken by Ms. Ashcroft that the Professional Corporation was an essential party to the proceedings was an appropriate position on the part of the Commission. The Commission has a legitimate interest in procedural matters affecting the Commission and applications from Commission decisions. Procedural and jurisdictional positions and arguments are within the scope of involvement for bodies against whom judicial review is sought, following the Court of Appeal decision. 43 Ms. Ashcroft took no position with respect to the merits of the application for judicial review itself. The Commission’s brief focused on the standard of review to be applied to the Chief Commissioner’s decision. The merits of the application itself (applying the standard of review to the decision) generally requires neutrality or non-intervention on the part of the decision-maker whose decision is being reviewed. 44 Indeed, it was the Commission, and not Ms. Raczynska who sought to have the Professional Corporation added as a party, which reinforces Ms. Ashcroft’s responsibility to ensure that the Court had the necessary information and relevant authorities to properly consider the matter. 45 Any complaints by Ms. Raczynska concerning Ms. Ashcroft’s conduct over the course of the appeal are unfounded and totally without merit.

Issues 1. Should the Professional Corporation be added as a respondent to this application? Raczynska v. Alberta (Human Rights Commission) Robert A. Graesser J. 175

2. If the Professional Corporation is not added as a party, is there any basis for the application to continue against the Chief Commissioner? 3. What is the appropriate standard of review from the decision of the Chief Commissioner? 4. Does the Chief Commissioner’s decision meet that standard of review?

1. Should the Professional Corporation be added as a respondent to this application? 46 The Professional Corporation maintains that it received nothing from Ms. Raczynska until shortly before the application was to be heard in January, 2015. Ms. Raczynska is unable to provide any real evidence that anything was provided by her to the Professional Corporation or Dr. Chaaban within the 6 months required for the bringing of judicial review applications under Rule 3.15. 47 At the hearing on May 19, 2015, she maintained that she had delivered papers to the Professional Corporation’s office at some time within the six months from the Chief Commissioner’s decision. 48 Ms. Ashcroft, for the Commission, provided a series of emails between herself and Ms. Raczynska concerning the inclusion of the Profes- sional Corporation as a respondent. A review of those emails satisfies me that there was nothing provided by Ms. Raczynska to the Professional Corporation or Dr. Chaaban before the 6 month period expired at the end of August, 2014 concerning any intention on her part to seek judicial review or otherwise appeal the Chief Commissioner’s decision. Nor did she provide the Professional Corporation or Dr. Chaaban with copies of her May 8, 2014 Notice of Application or Affidavit in support. 49 While Ms. Raczynska maintained at the hearing before me that she had served the Professional Corporation with something during the currency of the appeal period, she was unclear as to what she had served or when she had served it. No real evidence was submitted to support her claim. 50 Her communication to me dated May 25, 2015 following the May 19 hearing essentially confirmed that. 51 Having regard to the email communications that passed between her and Ms. Ashcroft concerning service of process on the Professional Cor- poration, Ms. Raczynska has failed to satisfy me that anything was sent 176 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

by her or served on the Professional Corporation in relation to her appeal until the Commission sent its brief to the Professional Corporation and Dr. Chaaban in January, 2015. 52 Rule 3.15 provides: Originating application for judicial review 3.15(1) An originating application must be filed in the form of an originating application for judicial review if the originating applicant seeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject to judicial review: (a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus; (b) a declaration or injunction. (2) Subject to rule 3.16, an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5 does not apply to this time period. (3) An originating application for judicial review must be served on (a) the person or body in respect of whose act or omission a remedy is sought, (b) the Minister of Justice and Solicitor General or the Attorney General for Canada, or both, as the circumstances require, and (c) every person or body directly affected by the application. (4) The Court may require an originating application for judicial review to be served on any person or body not otherwise required to be served. (5) An affidavit or other evidence to be used to support the originating application for judicial review, other than an originating application for an order in the nature of habeas corpus, must be filed and served on every other party one month or more before the date scheduled for hearing the application. 53 The issue raised by the Professional Corporation has been dealt with in two decisions cited to me: Heikkila v. Alberta (Workers’ Compensation Board Appeals Commission), 2003 ABQB 544 (Alta. Q.B.) and Miller v Chief of the Commission and Tribunals, Alberta Human Rights Commission and The Workers’ Compensation Board (un- reported) January 27, 2015, Action 1401 045218. I note that Mahoney J Raczynska v. Alberta (Human Rights Commission) Robert A. Graesser J. 177

recently came to a similar conclusion in F. Prins Potatoes Ltd. v. Agriculture Financial Services Corp., 2015 ABQB 335 (Alta. Q.B.). 54 In Heikkila, Hawco J concluded that the Court “could not and ought not” extend the time for service. He stated at para 46: In my respectful view, the legislature (through the Rules) has made it clear that the time for filing and service is not to be extended in cases of judicial review. I adopt the reasoning of Justice Veit in Johannessen v. Alberta (Workers’ Compensation Board, Appeals Commission), 1995 CanLII 9160 (AB QB), [1995] A.J. No. 791, wherein she stated: The rules establish a six month limit within which a motion for judicial review must be brought. This limitation reflects a policy decision to the effect that, when a properly constituted tribunal makes a decision, that decision is binding; any challenge of that decision must be made promptly because the rights and responsibilities of many persons may be affected by the decision. All of those people who are directly and indirectly affected by such a decision cannot be left in limbo indefinitely. There must be closure, finality, so that everyone can move on. It is therefore important to set aside or challenge a position within six month of the day when the decision is issued. 55 Hawco J was dealing with applications for judicial review under the old Rules of Court (pre-2010). 56 In Miller v Chief of the Commission and Tribunals, Millar J referenced and approved Heikkila in the context of the new Rules of Court, holding: In the present case, the applicant contravened rule 3.15(3) when she failed to serve the WCB with her originating application within six months of the Commission Chief’s decision. Given that Rule 3.15(2) expressly states that this six month limitation period cannot be extended by the court, the originating application must be struck and the applicant’s judicial review dismissed. 57 Rule 13.5, reference in Rule 3.15(2) is the general extension power: 13.5(1) Unless the Court otherwise orders or a rule otherwise provides, the parties may agree to extend any time period specified in these rules. (2) The Court may, unless a rule otherwise provides, stay, extend or shorten a time period that is (a) specified in these rules, 178 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

(b) specified in an order or judgment, or (c) agreed on by the parties. (3) The order to extend or shorten a time period may be made whether or not the period has expired. 58 Ms. Raczynska did not comply with the service requirement on the Professional Corporation. As noted above, she has not provided any con- vincing evidence that she provided anything at all to the Professional Corporation or Dr. Chaaban about an application or appeal during the relevant time period. 59 Her communications with Ms. Ashcroft indicate that she thought that the Commission would notify the Professional Corporation. There is nothing before me to suggest that there is any reasonable basis for that belief. In any event, that has nothing to do with the Professional Corpora- tion. Its rights cannot be affected by a misunderstanding between the complainant and the Commission. 60 There is nothing in the materials to support Ms. Raczynska’s submissions that she was misled as to proper process by Ms. Ashcroft. Nothing could be clearer from Ms. Ashcroft’s communications: get legal advice somewhere, serve the Professional Corporation and serve it within the necessary time. 61 There is no evidence before me suggesting that the Commission had any communications with the Professional Corporation about any application or appeal by Ms. Raczynska before the 6 month period had expired or at all before January, 2015. 62 Ms. Raczynksa suggests in email correspondence sent to me long after the application was heard in May, 2015 that Ms. Ashcroft told her she had notified Dr. Chaaban about moving her appeal “from Court of Queen’s Bench to Special Chambers” (referring to some time before the original return date of May 16, 2014 in Ms. Raczynska’s Originating Application). 63 Even if that were the case, the act of a respondent notifying a person who has not been included in an application of a hearing date does not satisfy the applicant’s obligation to follow legislated procedure and properly include all the necessary parties to her application. 64 Ms. Raczynska also argued that as a self-represented litigant she was unfamiliar with the Rules of Court and filing and service requirements. She maintains that the Commission should have made her aware of these procedures. Raczynska v. Alberta (Human Rights Commission) Robert A. Graesser J. 179

65 In answer to these submissions, being self-represented does not provide any lesser standard of compliance with the Rules of Court. There is only one set of rules and they apply equally to represented litigants and self-represented litigants. Time limits cannot be extended merely because of a lack of familiarity with those requirements. Health issues may be a factor where time limits are capable of being extended, but Rule 3.15 provides a deadline which is essentially “absolute”, just like the time requirements for issuing a statement of claim under the Limitations Act. 66 As a result, Ms. Raczynska’s application to add the Professional Cor- poration as a party to the application is denied. 67 Ms. Raczynska’s submission that “the fact that I did not deliver proper form at the time should not matter at all” fails. Adherence to legislated process matters a great deal.

2. If the Professional Corporation is not added as a party, is there any basis for the application to continue against the Chief Commissioner? 68 Counsel for the Commission provided the Court with copies of Miller and Heikkila, which was entirely appropriate. Making the Court aware of relevant authorities (especially when other people involved in the matter are self-represented) is essential to the proper administration of justice, and is viewed as an obligation of counsel. Where there is authority on a point in issue, it is essential that the Court be made aware of it, even by a party or counsel for a party whose position may be weakened by the authority. 69 Parties and their counsel may argue against application of an authority, but that does not include suppressing the case from the Court. 70 Counsel for the Commission did indicate that she essentially supported Dr. Chaaban’s position, but that was not a position on the merits of the case but rather on the proper procedure to follow and the consequences of failure to follow proper procedure. 71 Counsel for the Commission appropriately provided the court with copies of correspondence between her and Ms. Raczynska relating to service of the Notice of Application and supporting materials on the Profes- sional Corporation. 72 For completeness of the record of the proceedings before me, I will place the email communications between Ms. Raczynska and Ms. Ash- croft on the court file. 180 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

73 It is clear from this exchange of communications that Ms. Raczynska was aware of the Commission’s position that the Professional Corpora- tion had to be served with these documents, and that it was Ms. Raczyn- ska’s responsibility to do so and that the Commission would not do so. 74 My conclusion is that since the Professional Corporation is not a party to these proceedings as I have rejected the Commission’s application to add it, and since Ms. Raczynska took no steps to add the Profes- sional Corporation as a party, the application has become moot. 75 There is no longer any remedy available against the Professional Cor- poration. Even if I were to quash the Commissioner’s decision, nothing would come of that because there is no longer any jurisdiction against the Professional Corporation, against whom the complaint was made. 76 Heikkila and Miller are clear on the requirement to include the respondent to the human rights complaint as a party to any judicial review of a decision of the Commission. Those cases are also clear that the time for serving the respondent is a firm deadline that cannot be extended. These Court of Queen’s Bench decisions make the service requirement like the limitation period for commencing proceedings under the Limita- tions Act, RSA 2000, c L-12. That may be viewed as a harsh position, but I see no reason to depart from the logic in those cases. 77 As a result, Ms. Raczynska’s application must be dismissed. No remedy is possible against the Professional Corporation, and any decision relating to the Chief Commissioner’s decision is moot.

3. What is the appropriate standard of review from the decision of the Chief Commissioner? 78 In the event I am wrong in the above analysis, I will continue the process of considering the merits of the application. It is clear that decisions such as the one made by the Chief Commissioner are reviewed on a reasonableness standard. 79 The Commission cited a large number of cases, all of which hold that the standard of review from a decision of the Commission (or the Chief Commissioner) post Dunsmuir (New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190 (S.C.C.)) is reasonableness. See Brewer v Fraser Milner Casgrain LLP, 2008 ABCA 425. See in particular Greater St. Albert Roman Catholic Separate School District No. 734 v. Buterman, 2014 ABQB 14 (Alta. Q.B.) in relation to Greckol J’s analysis of the standard of review from the Chief Commissioner’s decisions. Raczynska v. Alberta (Human Rights Commission) Robert A. Graesser J. 181

Other recent cases involving the standard of review include Silverman v. Alberta (Human Rights Commission), 2012 ABQB 152 (Alta. Q.B.). 80 The myriad of cases that analyze the expertise of the Commission and the standard of review applicable to it demonstrate that I need not conduct a further analysis to determine the level of deference to be afforded to the Commission and the Chief Commissioner. 81 In this case, the Chief Commissioner was interpreting procedural issues under the Commission’s home statute, the Alberta Human Rights Act. 82 The issues in this case do not involve matters outside the core of the Commission’s and the Commissioner’s mandate and expertise, nor do they involve issues of general importance to the legal system as a whole so as to fall within the exceptions to the reasonableness standard of review following Canada (Attorney General) v. Mowat, 2011 SCC 53 (S.C.C.) A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 (S.C.C.), British Columbia (Securities Commission) v. McLean, 2013 SCC 67 (S.C.C.) and cases interpreting those decisions such as Walsh v. Mobil Oil Canada, 2013 ABCA 238 (Alta. C.A.). 83 I therefore conclude that the Chief Commissioner’s decision is to be reviewed on the standard of reasonableness.

4. Does the Chief Commissioner’s decision meet that standard of review? 84 Reasonableness as a standard of review has its modern origins in Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 (S.C.C.). Ryan v. Law Society (New Brunswick), 2003 SCC 20 (S.C.C.), amplified the test for reasonableness at paras 55 and 56: 55 A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79). 182 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

56 This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision re- membering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. 85 Dunsmuir refined that definition to some degree at para 47: 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 86 Most recently, N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) interpreted Dunsmuir at para 13: 13 This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for “justification, transparency and intelligibility”. To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist. That was the basis for this Court’s new direction in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, where Dickson J. urged restraint in assessing the decisions of specialized administrative tribunals. This decision oriented the Court towards granting greater deference to tribunals, shown in Dunsmuir’s conclusion that tribunals should “have a margin of appreciation within the range of acceptable and rational solutions” (para. 47). Raczynska v. Alberta (Human Rights Commission) Robert A. Graesser J. 183

87 From my review of the facts before the Chief Commissioner and the issues he had to consider, it is obvious that he had discretion as to what to do on the appeal. There is clearly not only one possible reasonable answer. 88 There are valid arguments supporting the decision the Chief Commis- sioner made. Procedural fairness involves fairness to all parties, not just the applicant or complainant. The Chief Commissioner had to balance the circumstances of the complainant and her complaint with the circumstances of the respondent and the need for finality and certainty. Proce- dural certainty is an important institutional feature so the limited resources of a government agency will be wisely deployed. 89 The Chief Commissioner was entitled to consider the history of the matter, the initial displeasure of the complainant with the suggested result and her request to have the investigator removed because of allegations of bias, the oral acceptance of the investigator’s suggested result sometime later and then the lengthy inability of the investigator and the Commission to contact the complainant. Consideration of those factors support the conclusion that time should not be extended and the Direc- tor’s decision to dismiss should not be overturned. 90 The Chief Commissioner was also entitled to consider the sympa- thetic circumstances of the complainant resulting from health issues which limited her ability to participate in the complaint resolution process. Consideration of those factors supports the conclusion that the appeal might be allowed. 91 This is not a case where I can substitute my discretion for that of the Chief Commissioner. His decision meets the reasonableness standard articulated above. He gave reasons for his decision. His reasons follow a clear line of analysis that leads from the evidence to his conclusion. His reasons are sufficient to support his conclusion. They also withstand a probing examination. No mistake is apparent from the Chief Commis- sioner’s reasons. 92 The Chief Commissioner is entitled to deference with respect to this decision. It cannot be said to be unreasonable in the context of judicial review on the standard of reasonableness. 93 Thus, even if I had allowed the Professional Corporation to be added as a party, and considered that the appeal was not moot, I would still be required to dismiss the appeal. 184 ADMINISTRATIVE LAW REPORTS 91 Admin. L.R. (5th)

Conclusion 94 It is sometimes unfortunate that matters are ultimately determined on the basis of procedural matters and not on the underlying merits of the case. But procedural issues are fundamental to the legal system and to ensuring fairness to all parties. While Ms. Raczynska believes she will be unfairly treated if she loses her appeal on procedural grounds, it would be unfair to Dr. Chaaban to apply a different set of rules to him because Ms. Raczynska is unrepresented by counsel and unfamiliar with procedural requirements. 95 From my review of the materials that have been put in front of me, the record and additional correspondence including the email communications between Ms. Ashcroft and Ms. Raczynska, Ms. Ashcroft went a long way in providing information to Ms. Raczynska as to process. Ms. Raczynska failed to heed that advice. As noted above, any criticism of Ms. Ashcroft by Ms. Raczynska is unfounded. 96 Ms. Raczynska’s appeal is dismissed. No costs are awarded. The Commission did not seek costs; the Professional Corporation was self- represented on the appeal and I award no costs in its favour. Application dismissed.