By Kathleen Starke and Annie Gray

Human rights landscape

Human rights legislation prohibits discrimination in specific contexts, including employment and the provision of services. In all Atlantic Provinces, Human Rights Commissions are responsible for enforcing such legislation, including through the investigation and resolution of complaints. Unfortunately, there is currently a significant backlog of complaints.^[1]

While many employers understand that discrimination is prohibited by provincial human rights legislation, not all employers are prepared to prevent and respond to complaints of discrimination.

This article will detail the human rights landscape in Atlantic Canada, including recommendations for responding to complaints.

Who’s covered?

Federal vs. provincial employers

Human rights legislation exists both federally and provincially for protection against discrimination. Employees that work for federal employers (e.g. those engaged in banking, telecommunications, aeronautics, and interprovincial shipping) must pursue their human rights concerns by way of the Canadian Human Rights Act, which is enforced by the Canadian Human Rights Commission. In contrast, non-federally regulated employees and employers are subject to provincial human rights legislation.

This article specifically addresses provincial human rights complaint processes, particularly with respect to discrimination in employment.

Union vs. non-union environments

In 2021, the Supreme Court of Canada issued a decision, Northern Regional Health Authority v Horrocks,^[2] which confirmed that arbitrators have presumptive exclusive jurisdiction over the human rights complaints of unionized employees in Manitoba. This means that, in Manitoba, unionized employees must pursue human rights complaints through the grievance and arbitration process, rather than through the provincial human rights commission.

Given the broad similarity between the human rights legislation in Manitoba and the Atlantic Provinces, it appeared that Horrocks would ease the backlog experienced by provincial human rights commissions as employees would need to pursue discrimination complaints through the grievance process. However, courts in New Brunswick (“NB”) and Nova Scotia (“NS”) have found otherwise.

In Robson v University of New Brunswick,^[3] the NB Labour and Employment Board found that the NB Human Rights Act implicitly recognized concurrent jurisdiction between the Board and labour arbitrators. The Board found that s. 19(2)(d) of the Human Rights Act, which permits the Commission to dismiss a complaint “if the Commission in its discretion determines… the complaint has already been dealt with in another proceeding” as implicitly recognizing a concurrent jurisdiction with arbitrators where a human rights issue is also subject to a grievance.

In the alternative, the Board found that the “essential character of the dispute” was whether the employer and the union had negotiated a collective agreement provision which violates the Human Rights Act, with the result that the dispute fell outside the scope of the collective agreement and thus outside a labour arbitrator’s exclusive jurisdiction.

Although the Board ultimately sided with the employer on the merits of the complaint, the employer sought judicial review of the Board’s preliminary decision with respect to the applicability of Horrocks in NB. This judicial review has yet to be heard.

Similarly, in Carleton v Halifax Regional Municipality,^[4] a NS Board of Inquiry found that it was without jurisdiction to hear the human rights complaint of a unionized police officer. However, the NSCA disagreed and found that there was a clear legislative intent for the NS Human Rights Commission and boards of inquiry to exercise concurrent jurisdiction over discrimination complaints from unionized employees. The NSCA relied on a similar provision as in Robson, namely s. 29(4)(d) of the NS Human Rights Act, which permits the Commission to dismiss a complaint if the Commission determines “the substance of the complaint has been appropriately dealt with pursuant to another Act or proceeding”, as implying an intention for concurrent jurisdiction with arbitrators.

In both Robson and Carleton, the decision makers failed to address the distinction made by the SCC in Horrocks between “deferral” provisions, which imply concurrent jurisdiction, and dismissal provisions, such as the provisions considered in both cases, which imply exclusive jurisdiction. In both NS and NB, the relevant human rights legislation contains a dismissal provision, not a deferral provision.

While the law is not settled on this issue in NB, the decision in Carleton limits NS employers’ ability to make a preliminary objection to a human rights complaint of a unionized worker. This issue has yet to be determined in Prince Edward Island (“PEI”) and Newfoundland & Labrador (“NL”) so it remains to be seen whether employers in those provinces will be able to successfully object to a complaint on the basis of Horrocks.

What’s covered?

Human rights legislation applies to all aspects of the employment relationship, beginning with the recruitment process. In addition to protections against differential treatment or harassing behaviour connected to protected grounds, legislation in each province also prohibits the use of job advertisements or application forms which indicate or imply a preference for one group over another (subject to specific exceptions, including for programs directed at improving the position of disadvantaged groups). Moreover, employers are responsible for the acts of their employees toward each other and any customers, if such acts are committed in the course of employment.

Human rights laws supersede any contract or collective agreements that may attempt to avoid liability. It is not possible to avoid human rights legislation, unless the human rights legislation itself, expressly states otherwise.

Protected grounds of discrimination are broadly similar across the Atlantic Provinces, and generally include the following:

Unique protections among the Atlantic Provinces include the following:

NB: the Human Rights Act,^[5] (the “NB Act”) prohibits discrimination on the basis of “social condition”, which is further defined under the NB Act in respect of an individual, as meaning “the condition of inclusion of the individual in a socially identifiable group that suffers from social or economic disadvantage on the basis of his or her source of income, occupation or level of education”.

NS: the Human Rights Act^[6] (the “NS Act”) specifically protects against discrimination on the basis of “Aboriginal origin,” as well as “an irrational fear of contracting an illness or disease”. The latter ground was enacted in response to the AIDS epidemic and, while rarely invoked, has been used to protect an employee who was unjustly denied the opportunity to return to the workplace.^[7]

NL: the Human Rights Act, 2010^[8] (the “NL Act”) protects against discrimination on the basis of “social origin”, which has been interpreted as protecting a class of people “defined by their origin with a prescribed geographical origin”.^[9] The NL Act also prohibits discrimination in employment on the basis of a conviction for an offence that is unrelated to the person’s employment.

PEI: the Human Rights Act^[10] (the “PEI Act”) prohibits refusing to employ or to continue to employ an individual because the individual has been convicted of a criminal or summary conviction offence that is unrelated to the employment.

You’ve received a complaint – now what?

Consider timeliness

In each of the Atlantic Provinces, complaints must generally be filed within one year of allegedly discriminatory conduct. However, where a complaint alleges continuing discriminatory behaviour, employers may be required to address conduct spanning several years, so long as the most recent allegation is within the one-year limitation period.

In addition, both the NB and NS Commissions are empowered to extend the applicable time limit where circumstances warrant.^[11] While the NS Commission is required to consider prejudice to a respondent when granting an extension, in practice the Commission has been known to grant extensions before respondents have even been notified that a complaint has been filed.

In both NS and NL, it is common for employers not to be served with a complaint until a year or more after it has been filed, which has to potential to create real prejudice in terms of witness memories and access to relevant evidence, and minimizes the practical impact of the statutory limitation period.

In NS, this delay is attributable in part to the active role the Commission plays in drafting official complaints based on information provided by complainants. By way of example, in its annual report for 2021-2022, the NS Commission notes that the average time from initial contact with a complainant to the signing of an official complaint was 249 days. Barring early resolution, there will generally be a further lengthy period of delay before such complaints are assigned to an investigator.

Early resolution

Upon receipt of a complaint, respondents will generally be afforded the opportunity to settle with a complainant. At this initial stage, potential resolution options are more informal than a traditional mediation, with the Commission relaying offers between the parties. In NS, the Commission offers an early resolution conference, which is guided by a restorative approach.

Even if resolution is initially unsuccessful, mediation remains an option until a complaint is finally disposed of in each of the Atlantic Provinces.

Investigation process

If the parties do not wish to participate in the mediation, or if mediation efforts are unsuccessful, the Commission will provide the respondent with an opportunity to provide a written response to the complaint.

In crafting this response, it is beneficial to include as much supporting information as possible, including relevant documentation. This not only creates the strongest case in favour of dismissal by the Commission without the need for a hearing, but also serves to document and preserve relevant evidence, which is vital in a context where it will likely take multiple years for any such hearing to occur.

In NL, the Commission specifically requests signed witness statements as part of the response process, and explicitly encourages submission of relevant documents. The NL Commission mandates the use of an online reply form to facilitate this process.

Despite often lengthy delays in processing complaints, Commissions generally require that respondents submit their formal responses within a few weeks, though there can be some flexibility depending on the Commission, the specific investigator involved and the nature of the complaint.

Once a response is filed, the next step is generally for the Commission to determine whether a recommendation can be made to dismiss the complaint for lack of merit, or whether further investigation is required. If, after completing an investigation, the Commission is satisfied that there is an arguable claim of discrimination, it will refer the matter to hearing.

In NL, respondents can request early dismissal from the Executive Director on particular grounds through a distinct process including specific online forms. If these grounds do not apply or such application is not successful, the Commission proceeds to determine the question of referral to a hearing.

While some complaints move along more quickly, it is common for Commissions to take more than a year to determine the next step after a response has been filed.

Once a complaint is referred to a hearing, parties will generally be afforded another opportunity to engage in mediation and resolve matters on their own terms. If no such resolution occurs, a public hearing will be held where the parties to the complaint are given the full opportunity to present evidence and make presentations, in person or by counsel or agent, in support of their position.

Potential hearing outcomes

Following a hearing, the complaint will be dismissed if the panel is satisfied that no violation has occurred. However, if discrimination is found, decision-makers have broad remedial power, including reinstatement of terminated employees (which can create significant liability in the context of lengthy delays), as well as damages in respect of lost wages and injury to dignity. The significant and broad powers of the panels heightens the importance of being well prepared for hearings.

Tips for a proactive approach

Employers are encouraged to develop policies which foster a workplace where human rights are respected and protected, including Respectful Workplace^[12] and Accommodation policies. Perhaps more importantly, employees and supervisors should be trained and frequently refreshed on these policies, with the aim of fostering a truly respectful and inclusive environment.

All complaints of harassing or other potentially discriminatory behaviour should be investigated and documented. This way, in the event of a complaint, it will be possible both to demonstrate a commitment to human rights obligations and to marshal necessary evidence, even in the face of considerable delays.

Employers who are faced with either an internal human rights complaint or a formal complaint with the relevant commission are encouraged to reach out to us as early in the process as possible. We are always available to answer any questions on what steps  an employers can take in a specific case, and help you decide on the right strategic approach to to respond to the issues raised.

Upcoming webinar:

Stewart McKelvey will be hosting a webinar on April 16, 2024 titled “Protecting your Workplace: OH&S Legal Updates and Insights“. Topics to be discussed include:

• The responsibilities of different workplace parties under OHS
• Responding to critical injury in the workplace
• Sentencing for health and safety violations
• Significant legislative and case law updates
• The importance of “due diligence”

Please contact Alicia Gordon, Events Coordinator, at acgordon@stewartmckelvey.com for more information.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour & Employment Group.

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[1] For example, in New Brunswick the 2022-2023 reporting year ended with 292 active complaints and a significant complaints backlog (see: Annual Report, 2022-2023); in Nova Scotia, the average days from Initial contact with a complainant to conclusion was 744 (see: Annual Report, 2021-2022); and in Prince Edward Island 123 complaints were carried over to the 2023-2024 fiscal year (see: Annual Report, 2022-2023). Newfoundland & Labrador does not provide statistics on this issued (see: Annual Report, 2022-2023).
[2] 2021 SCC 42 (“Horrocks”).
[3] 2022 CanLII 40804 (NB LEB) (“Robson”).
[4] unreported, August 12, 2022, NS BOI, overturned 2023 NSCA 66.
[5] RSNB 2011, c 171.
[6] RSNS 1989, c 214.
[7] LaFosse v. Kinsmen Daycare Centre Society, 1995 CarswellNS 627 (NS BOI).
[8] SNL 2010, c H-13.1.
[9] Halleran v. House of Haynes (Restaurant) Ltd., 1994 CanLII 18452 (NL HRC) at para. 31.
[10] RSPEI 1988, c H-12.
[11] Pursuant to s.18(2) of the NB Act and s.29(3) of the NS Act, which limits extensions to an additional 12 months, and requires “exceptional” circumstances.
[12] We note that, in all provinces but NS, policies addressing protections against workplace harassment are mandatory pursuant to occupational health and safety legislation as well.