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Halifax Regional Municipality SCC File: 33651 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM NOV A SCOTIA COURT OF APPEAL) BETWEEN: HALIFAX REGIONAL MUNICIPALITY Appellant (Respondent) and NOVA SCOTIA HUMAN RIGHTS COMMISSION and LUCIEN COMEAU and LYNN CONNORS and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOV A SCOTIA Respondents (AppellantslRespondents) MEMORANDUM OF ARGUMENT Halifax Regional Municipality Applicant Supreme Court of Canada Rule 42 RANDOLPH KINGHORNE HENRY S. BROWN, QC KAREN BROWN Gowlings Lafleur Henderson LLP Halifax Regional Municipality 2600 - 160 Elgin St. 3rd Floor, Duke Tower Ottawa, ON KIP 1C3 5251 Duke Street Tel: (613) 233-1781 Halifax, NS B3J 3A5 Fax: (613) 788-3433 Tel: (902) 490-7362 Email: Fax: (902) 490-4232 henry. brown @gowlings.com Email: [email protected] Agent for the Appellant Solicitors for the Appellant Halifax Regional Municipality Halifax Regional Municipality JOHN P. MERRICK, Q.c. MARIE-FRANCE MAJOR Merrick Jamieson Sterns Washington & Mahody Lang Michener LLP 5475 Spring Garden Road, Suite 503 300 - 50 O'Connor Street Halifax, NS B3J 3T2 Ottawa, ON KIP 6L2 Tel: (902) 429-3123 Tel: (613) 232-7171 Fax: (902) 429-3522 Fax: (613) 231-3191 Email: [email protected] Email: [email protected] Solicitor for the Respondent Agent for the Respondent Nova Scotia Human Rights Commission Nova Scotia Human Rights Commission MICHAEL DOUCET, c.rJQC MARK C. POWER 515 Avant-Garde Heenan Blaikie LLP Dieppe, NB EIA 5Z4 55 Metcalfe Street, Suite 300 Tel: (506) 866-8951 Ottawa, ON KIP 6L5 Fax: (506) 858-4737 Tel: (613) 236-7908 Email: [email protected] Fax: (866) 296-8395 Solicitor {or the Respondent Email: [email protected] Lucien Comeau Agent for the Respondent Lucien Comeau EDWARD GORES, QC HENRY S. BROWN, QC Department of Justice (NS) Gowlings Lafleur Henderson LLP 4th HOOf, 5151 Terminal Road 2600 - 160 Elgin St. PO box 7 Ottawa, ON KIP le3 Halifax, NS B3J 2L6 Tel: (613) 233-1781 Tel: (902) 424-4024 Fax: (613) 788-3433 Fax: (902) 424-1730 Email: Email: [email protected] [email protected] Agent for the Appellant Halifax Regional Municipality Table of Contents DOCUMENT Page No. Memorandum of Argument ............................................................................................. PART I - Facts ................................................................................................................ 1 PART II - Questions in Issue .......................................................................................... 7 PART Ill- Argument. ............................................................................ 8 PART IV- Submissions on Costs .............................................................. .40 PART V - Order Sought. ........................................................................40 PART VI - Table of Authorities ............................................................... .41 PART VII- Statute provisions ................................................................. .45 • Canadian Charter of Rights and Freedoms ....................................................... .46 • Nova Scotia Human Rights Act ........................................................................ 48 • Nova Scotia Human Rights 2007 amendments ................................................. 54 • Nova Scotia Municipal Government Act.. ........................................................ 56 • Nova Scotia Municipal Government Act 2006 amendments ............................ 60 • Nova Scotia Education Act ............................................................................... 63 • Governor in Council Education Act Regulations .............................................. 70 1 PART I - FACTS 1. Overview: The Appellant Halifax Regional Municipality ("HRM") is appealing the decision of the Nova Scotia Court of Appeal (the "Court of Appeal") overturning the decision of Mr. Justice Boudreau (the "Trial Judge") on judicial review. The learned Trial Judge had quashed the decision of the Nova Scotia Human Rights Commission (the "Commission") to refer the human rights complaint (the "Complaint') of Lucien Comeau ("Comeau") against HRM and the Province of Nova Scotia (the "Province") to a Board of Inquiry (the "Board") for hearing, and prohibiting the Board (consisting of Chair Lynn Connors) from taking further action on the Comeau Complaint. 2. HRM brought a certiorari application before the learned Trial Judge for judicial review of the Commission's decision to refer the Complaint to the Board. The referral decision is a fmal decision of the Commission under its internal investigation processes with respect to HRM. Components of the decision are challenged as being either incorrect in law or as being unreasonable. The Court of Appeal however, mischaracterized the Commission's investigation and the Board hearing as being a single continuous proceeding. In doing so the Court of Appeal adopted a standard of review of such referral decisions which effectively placed a burden of proof on HRM to establish that it was "clear and beyond doubt" that the Commission's decision was incorrect. 3. Facts: HRM was formed in 1996 by the amalgamation of the four separate municipalities operating in Halifax County. Prior to the amalgamation, the two former cities of Halifax and Dartmouth had historically provided supplementary funding to their local school boards. The former Town of Bedford and the Municipality of Halifax County did not provided such funding. The Halifax Regional Municipality Act amalgamating the four municipalities required HRM to continue providing the supplementary funding for the HalifaxlDartmouth located schools. This funding is payable to the contemporaneously created Halifax Regional School Board ("HRSB"), and has been carried forward by section 530 of the Municipal Government Act ("MGA"). The legislation recognizes the schools' reliance on this source of funding limits reductions by permitting HRM to only gradually phase it out. The supplementary funding is raised by a separate area rates in Halifax 2 and Dartmouth, which are based on the assessed value of taxable property and business occupancy assessments. [Appellant's Record page 121 paragraph 6] 4. There are two separate but very similar complaints filed by Comeau under the Nova Scotia Human Rights Act ("HRA"). The fIrst is against HRM and is dated June 26, 2003 [AR page 118], and the subsequent complaint is against the Province and is dated July 30, 2004 [AR page 120]. In 2003- 2004, the children of Mr. Comeau attended schools in former city of Dartmouth administered by the Conseil Scolaire Acadien Provincial (UCSAP"), a province wide school board providing French fIrst language education. The Complaint objects to the fact that CSAP did not participate in the MGA mandated supplementary funding: 6. Pursuant to Section 530 of the Municipal Government Act, HRM pays the amount of taxes raised for supplementary funding to HRSB. HRM does not, and has not, paid anything by way of supplementary funding to CSAP. Accordingly, the schools administered by CSAP are disadvantaged financially when compared to the schools administered by the HRSB. 8. I refer to the following paragraphs and allege that the Respondent has treated, and continued to treat, me and my children differently on account of our ethnic origin (Acadian) by levying the supplementary tax on me and by not providing any of the funds generated by the supplementary tax to the CSAP. This differential treatment has negatively impacted myself and my children. [AR page 118-9 paras 6&8] 5. The Complainant Comeau does not seek to have the discriminatory supplementary funding practice stopped, ie. have MGA s.530 declared void, but rather wishes to have the funding be extended to CSAP schools. This occurred in November, 2006 as the MGA was amended to extend participation in the supplemental funding to the CSAP schools on an equal basis to the HRSB schools retroactive to April 1, 2006. By continuing his Complaint, Comeau seeks to use the provisions of the HRA to effectively further extend the retroactive application of the statutory supplementary funding of CSAP schools to the date of his complaint. 3 6. HRM fmds itself the focus of the Human Rights investigation based on its following the statutory direction of then MGA s.530 to collect and provide supplementary funding for the HRSB's HalifaxIDartmouth schools. During this time period there was no statutory direction to provide supplementary funding for the CSAP schools. By letter to HRM dated November 24,2006 (the day after the MGA amendments extending funding to CSAP came into effect), the Commission provided notice of appointment of Lynn Connors as a Board of Inquiry to conduct a consolidated hearing of these two complaints [AR page 117]. The hearing was scheduled for up to ten days commencing January 21, 2007 [AR page 264]. 7. HRM sought judicial review in the nature of certiorari to quash the Commission's decision to refer the Complaint to the Board, with supporting relief in the nature of prohibition to halt the Board proceeding [AR page 99J. HRM simply requested the Court to require that the Commission's decision be based on a correct interpretation of the law and to otherwise be reasonable. Essentially there are no material facts in dispute in this case. For the purpose of it judicial review and ensuing appeals HRM has relied without challenge on the basic facts alleged in the complaint and the additional facts subsequently found by Human Rights Officer Michael Lambert (the Investigating Officer") as contained in his
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