The Nova Scotia Court of Appeal has ordered a Human Rights Commission board of inquiry to hear a Halifax Regional Police officer’s complaint about her treatment for PTSD.
Det. Const. Deborah Carleton complained in 2017 after former Halifax Regional Police chief Jean-Michel Blais refused to approve out-of-province treatment for her post-traumatic stress disorder.
The Nova Scotia Human Rights Commission (NSHRC) agreed to hear the complaint, and struck a board of inquiry.
The process started in 2021 was supposed to continue in November 2022, before a Supreme Court of Canada ruling derailed Carleton’s complaint.
As the Halifax Examiner reported last year, the municipality argued the board of inquiry didn’t have jurisdiction to hear Carleton’s complaint. That’s because the Supreme Court ruled in a 2021 case out of Manitoba that where an employee is a member of a union, an arbitrator appointed under their collective agreement has exclusive jurisdiction over workplace complaints.
The independent board of inquiry, comprising J. Walter Thompson and Peter D. Nathanson, sided with HRM in August 2022, adopting the same viewpoint.
“This Board has substantial misgivings with respect to the wisdom of the approach taken by the Supreme Court. We cannot, however, quibble with the reliance upon existing common law and legislation,” Thompson and Nathanson wrote.
The Nova Scotia Human Rights Commission appealed the finding of its independent board, arguing there is “concurrent jurisdiction between the grievance/arbitration mechanisms found in the Trade Union Act and the dispute resolution procedure of the Human Rights Commission provided for in the Human Rights Act.”
Two of three justices side with commission
In a decision released Thursday, the Nova Scotia Court of Appeal sided with the commission, and sent the complaint back to the board of inquiry.
Justice Cindy Bourgeois, writing for the majority, ruled that the intent of the Nova Scotia Human Rights Act is for the commission to have concurrent jurisdiction over complaints like Carleton’s. That means an employee can file both a grievance under their collective agreement and a human rights complaint. Justice Elizabeth Van den Eynden concurred.
Bourgeois found there was a similar case involving accusations of racism within HRM in 2008, and the court ruled “that the Commission retains jurisdiction.”
“This Court’s determination that the Commission has concurrent jurisdiction over human rights complaints arising in the context of a unionized workplace has remained undisturbed since 2008,” Bourgeois wrote.
“Since that time, as it had prior thereto, the Commission has received, investigated, and where it deemed appropriate, appointed boards of inquiry to hear such complaints.”
In a dissenting opinion, Justice Michael Wood wrote that the Act “does not include an express statement of concurrent jurisdiction,” and he would’ve dismissed the appeal.
Intervenors on both sides
Due to its potential ramifications, the case attracted several intervenors. Carleton and HRM intervened, maintaining their previous opposing positions.
A group of unions or labour organizations added its voice, too: the Nova Scotia Government and General Employees Union; the Halifax Regional Police Association; Amalgamated Transit Union Local 508; the Canadian Union of Public Employees; the International Brotherhood of Teamsters Local 927; the Halifax Professional Firefighters Association, IAFF Local 268; and the Nova Scotia Federation of Labour.
Their position: “The intended joint intervenors have had members who have alleged workplace violations of the Human Rights Act. The intended joint intervenors submit that their members are entitled in law, under the current statutory scheme, to have access to the complaint process of the Nova Scotia Human Rights Commission in relation to discrimination in their employment, regardless of the fact that their employment is governed by a collective agreement.”
And the Canadian Association of Counsel to Employers intervened, taking a similar position to HRM.
It’s now up to the board to schedule a new round of hearings in Carleton’s case.
Update: Commission reacts
In a news release issued after this story was initially published, the Nova Scotia Human Rights Commission said the decision means “more than 70 files involving unionized employees that have been on hold can now proceed through the commission’s dispute resolution process.”
“The commission is pleased that the court saw the importance of protecting the rights of unionized workers and their access to justice under the Nova Scotia Human Rights Act,” commission director and CEO Joseph Fraser said in the release.
“Collective agreements are no substitute for human rights law, and the role of the commission is to ensure rights are protected in all workplaces, unionized or not.”