The Nova Scotia Human Rights Commission is appealing a decision from its independent board of inquiry that ruled it has no jurisdiction to hear a Halifax Regional Police officer’s complaint about her treatment for PTSD.
Det. Const. Deborah Carleton was one of three HRP officers to launch human rights complaints related to PTSD diagnoses after she was denied out-of-province treatment. Along with constables Kevin Johnson and Mark Long, Carleton argued her employer was treating her on-the-job injury differently than it would treat a physical injury.
Former CBC reporter Yvonne Colbert detailed Carleton’s complaint, and accusation of hypocrisy against former chief Jean-Michel Blais, in 2017. As Colbert told it, Carleton was diagnosed with post-traumatic stress disorder in 2015 after 20 years of detective work for Halifax police and RCMP.
After she reported suicidal thoughts in 2016, doctors recommended Carleton be sent to Ontario for in-patient treatment that’s not available in Nova Scotia. HRP eventually agreed to pay $1,000 a day, and Carleton spent about two months there.
When she returned, Carleton attempted suicide and her psychologist implored Halifax police to send her back to the facility in Ontario. HRP refused. Carleton’s union, Halifax Regional Police Association (HRPA), filed a grievance, and she filed a complaint with the Nova Scotia Human Rights Commission (NSHRC).
In 2019, Colbert reported for CBC that the NSHRC had agreed to hear the case.
Carleton’s hearing began in September 2021 and was to continue in November, but it was derailed by a decision from the Supreme Court of Canada.
Halifax lawyer Marty Ward moved to have the board of inquiry dismiss the case based on the decision, and in January 2022, the parties made oral arguments in a teleconference, and made written submissions in June.
The two-member board of inquiry, comprising J. Walter Thompson and Peter D. Nathanson, released its decision Aug. 12, 2022. It’s not posted on NSHRC’s website with other board of inquiry decisions, but was submitted with NSHRC’s appeal.
Thompson and Nathanson decided they don’t have jurisdiction to hear Carleton’s complaint due to a 2021 Nova Scotia Supreme Court decision, Northern Regional Health Authority v. Horrocks.
In that case, the complainant, Linda Horrocks, alleged her employer “failed to adequately accommodate her disability” after she was suspended for attending work under the influence of alcohol and then fired after she refused an agreement “requiring that she abstain from alcohol and engage in addiction treatment.”
Her union filed a grievance, her employment was reinstated, and then it was terminated again. Horrocks then filed a human rights complaint. Because Horrocks was in a union, her employer argued only an arbitrator appointed under a collective agreement has jurisdiction to hear her complaint, and the Manitoba Human Rights Commission did not. The Supreme Court of Canada agreed, ruling “Ms. Horrocks’ complaint alleges a violation of the collective agreement, and thus falls squarely within the arbitrator’s mandate.”
“On October 22, 2021, the Supreme Court of Canada ruled that, in general, if a collective agreement exists between the parties to a human rights complaint, then, under legislation prevailing in the Province of Manitoba, an arbitrator appointed further to the agreement, has exclusive jurisdiction over the issues,” Thompson and Nathanson wrote.
“Halifax submits that Horrocks applied to Nova Scotian legislation as well and that we, as a Board of Inquiry under the Nova Scotia Human Rights Act, have no jurisdiction.”
Thompson and Nathanson found “The facts in Horrocks are sufficiently similar to the facts in Det. Cst. Carleton’s case, as we understand those facts, to make the cases indistinguishable in terms of the legal analysis required.”
“In Det. Cst. Carleton’s case, like in Horrocks, a grievance pre-dated a human rights complaint. Both the grievance and the human rights complaints dealt with similar behaviour on the part of the employer in that both contained allegations that HRM had treated the Complainants differently than it had others who had suffered from [on] the job injuries, albeit of a physical nature.”
Carleton’s lawyers argued the decision doesn’t apply to her case because Nova Scotia’s Human Rights Act doesn’t exclude unionized workplaces, and lawyers for the NSHRC argued the decision shouldn’t be interpreted to “preclude all actions in the courts between [a unionized] employer and employee.”
Thompson and Nathanson sided with HRM, but in their conclusion, they lament their decision.
“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,” the board wrote.
Thompson and Nathanson continue:
In losing access to the wisdom, insight, experience and resources that the Human Rights Commission has there is, in our opinion, a very real possibility that unionized employees will receive a different, and possibly lesser or less nuanced, justice than employees in other settings. While neither member of this Board would presume any particular wisdom or insight that experience alone cannot provide, the same cannot be said for the Human Rights Commission. The perspective of the Human Rights Commission, together with its resources, cannot readily be duplicated within the context of labour arbitrations. Labour arbitrators will have to adjust their thinking and their approaches if they are to give full effect to the substance and sprit of the Human Rights Act. We presume that labour arbitrators will do so. Unfortunately, they will do so without all of the benefits that the Human Rights Commission brings. Individual complainants will also be subject to the uncertainties of the grievance processes in a manner in which they were not subject in the human rights complaint context. Unions, too, will be challenged to find way to protect the vulnerable within the unionized context of employment especially when both the aggrieved and the accused are union members. We are hopeful that matters that might otherwise have been brought to the attention of the Human Rights Commission and which may have been pursued by the Human Rights Commission will not otherwise be lost in the “to and fro” that is the dynamic that is the unionized workplace.
Notwithstanding the foregoing, this Board has no choice but to dismiss the complaint of Det. Cst Carleton on the basis this Board has no jurisdiction to hear it.
NSHRC lawyers Kymberly Franklin and Kendrick Douglas disagree. The lawyers filed an appeal with the Nova Scotia Court of Appeals on Sept. 8, the grounds of which are:
- The Two-Member Board of Inquiry erred in law in finding that it didn’t have jurisdiction to hear the Complaint of Det. Cst. Carleton.
- The Two-Member Board of Inquiry erred in law in finding there was no 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.
- The Two-Member Board of Inquiry erred in law in finding the legislative intent of the Human Rights Act does not provide concurrent jurisdiction where allegations of human rights violations may also be addressed by a labor arbitrator.
- The Two-Member Board of Inquiry erred in law by applying a strict interpretation to the Human Rights Act.
- Such further grounds as counsel may advise and this Honourable Court may permit.
The Appellant says that the court should allow the appeal, set aside the decision appealed from, make its own finding and refer the matter back to the Two-Member Board of Inquiry.
The court will now set a date for the appeal, with all parties, including HRM, HRPA, the board members, and Carleton, having an option to participate.
If the board’s interpretation is upheld, along with its concerns about justice for workers, the effect would also be less public accountability for big unionized employers in Nova Scotia, especially HRM. It would mean cases involving unionized employees, like Halifax Transit mechanic Y.Z. or firefighter Kathy Symington. would no longer make it to the human rights commission.
J Walter Thompson is the one-person Board of Inquiry in the Emerald Hall case who earned a long list of “The Board did, however, err in law………..” from the court of appeal. He claims that the Human Rights Commission has “wisdom, insight, experience and resources”. I’d say he is the poster boy for legal error.
His mistakes cost taxpayers a bundle, and now he seems to have done it again.
This time the normally sleepy and disengaged lawyers at the Human Rights Commission have interrupted their naps to be outraged at the possibility of part of their sinecure disappearing.
J Walter flunked the test and should never be rehired. Whose idea was that, anyway? Fire them too!
I propose a course of Restorative Justice for the legal eagles at the HRC. Sauce for the goose…………. Unions will eat them alive.
The trusting public and honourable employees have no idea how the legal community set themselves up to ensure avenues for redemption for individual human rights are blocked. Breach of contract is a human rights issue the Unions ignore. Unions are part of the legal system of complicity; they tip toe around the employer’s legal team – they have no power or will to protect the discriminated employee. Those who rely on a Union to help are sorely misguided and uninformed of the treachery the legal system has created to sustain Union passitivity. Errors in law are manufactured by the legal community and designed to confuse, dismantle, and demoralize any complainant. Arbitrators are legal appointees – part of the legal community to maintain the status quo, by protecting the wrongdoer / employer. There is little hope for anyone if you are challenging status quo system of laws, which are grounded in misogyny, patriarchy, arrogance, power and money.