IN THE SUPREME COURT OF CANADA (ON APPEAL FROM NOV A SCOTIA COURT OF APPEAL)

Transcription

1 SCC File: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM NOV A SCOTIA COURT OF APPEAL) BETWEEN: HALIFAX REGIONAL MUNICIPALITY and Appellant (Respondent) 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 KAREN BROWN Halifax Regional Municipality 3 rd Floor, Duke Tower 5251 Duke Street Halifax, NS B3J 3A5 Tel: (902) Fax: (902) kinghor@halifax.ca Solicitors for the Appellant Halifax Regional Municipality JOHN P. MERRICK, Q.c. Merrick Jamieson Sterns Washington & Mahody 5475 Spring Garden Road, Suite 503 Halifax, NS B3J 3T2 Tel: (902) Fax: (902) jmerrick@mjswm.com Solicitor for the Respondent Nova Scotia Human Rights Commission HENRY S. BROWN, QC Gowlings Lafleur Henderson LLP Elgin St. Ottawa, ON KIP 1 C3 Tel: (613) Fax: (613) henry. Agent for the Appellant Halifax Regional Municipality MARIE-FRANCE MAJOR Lang Michener LLP O'Connor Street Ottawa, ON KIP 6L2 Tel: (613) Fax: (613) mmajor@langmichener.ca Agent for the Respondent Nova Scotia Human Rights Commission

2 MICHAEL DOUCET, c.rjqc 515 Avant-Garde Dieppe, NB EIA 5Z4 Tel: (506) Fax: (506) Solicitor {or the Respondent Lucien Comeau EDWARD GORES, QC Department of Justice (NS) 4th HOOf, 5151 Terminal Road PO box 7 Halifax, NS B3J 2L6 Tel: (902) Fax: (902) goresea@goy.ns.ca MARK C. POWER Heenan Blaikie LLP 55 Metcalfe Street, Suite 300 Ottawa, ON KIP 6L5 Tel: (613) Fax: (866) mpower@heenan.ca Agent for the Respondent Lucien Comeau HENRY S. BROWN, QC Gowlings Lafleur Henderson LLP Elgin St. Ottawa, ON KIP le3 Tel: (613) Fax: (613) henry.brown@gowlings.com Agent for the Appellant Halifax Regional Municipality

3 Table of Contents DOCUMENT Page No. Memorandum of Argument.... PART I - Facts... 1 PART II - Questions in Issue... 7 PART Ill- Argument PART IV- Submissions on Costs PART V - Order Sought PART VI - Table of Authorities PART VII- Statute provisions Canadian Charter of Rights and Freedoms...46 Nova Scotia Human Rights Act Nova Scotia Human Rights 2007 amendments Nova Scotia Municipal Government Act Nova Scotia Municipal Government Act 2006 amendments Nova Scotia Education Act Governor in Council Education Act Regulations... 70

4 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

5 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 , 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 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, 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.

6 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 report [AR page 125]. It is only the Investigation Officer's characterization of those facts and his conclusions as to their legal significance has been challenged. As stated by the learned Trial Judge: [38]... The facts on which the question in this proceeding are to be decided are already before the Court and they are not contested. The facts which the Commission implied should be ascertained relate primarily to questions surrounding possible damages and not to the issues of jurisdiction, mootness, res judicata or reasonableness. [46]... This Court is not required to weigh the evidence or to speculate on the evidence. 8. The Province has made a policy decision to differentiate between school boards based on language and geographical distinctions. Pursuant to section 7 of the Education Act the administration of English language education is by a number of geographically distinct regional school boards. Section 11 of the Education Act created CSAP as a single Province wide school board which

7 4 provides a French first language program. By section 13 the members are elected to the CSAP board by the parents of its students and other entitled persons. No objection has been raised to the adoption of a single province wide CSAP school board by the Province to satisfy its obligations to provide French language education, nor is there any suggestion that this approach is for an improper purpose. 9. Pursuant to Section 64 of the Education Act, each school board is responsible for the control and management of the public schools within its jurisdiction, and is accountable to the Minister of Education (the "Minister"). In particular, school boards must make provision for the education instruction of all students enrolled in its schools and programs and ensure adherence to the provincial program of studies. Each school board, in carrying out its responsibility is required to meet the education program services performance standards established by the Minister. 10. The Commission's Investigation Report dated April 8, 2005, explains CSAP funding: 12. One of the factors taken into account in determining the respective proportions to be paid by the Province and the municipalities is the ability to pay as reflected in assessment values. Accordingly, the provincial/municipal sharing will be in different proportions for different school districts. Because the CSAP is responsible for the entire Province, and because its student base is spread unevenly throughout the province, it is difficult to apply the second element of the funding formula. The Province therefore pays the total cost of the CSAP program. It is therefore true to say that no municipal taxes are applied directly to the education of the complainant's children. [AR page127 para 12] 11. The Investigating Officer's research of annual funding from the Province found that as of March, 2000, the HRSB received $3,307.00/year for each student enrolled while the CSAP received $5,717.00/year for each student. With mandatory municipal funding (but not MGA s.530 supplementary funding) the HRSB annual per student funding was $4, [AR page 132 para 40] 12. Pursuant to the Nova Scotia - Canada Agreement on Official Languages in Education, the Government of Canada also provides education funding to the Province for French instruction in amounts that vary from year to year. For example in , Federal supplementary funding to CSAP was $459, and to all the English language boards in the Province was $240, [AR

8 5 page 166]. Additionally Education Act s.72 authorizes the Minister to make grants to school boards "with respect to services provided pursuant to Section 64". 13. Despite having found that CSAP schools received more per capita funding per student than the HRSB schools, the Investigating Officer's report recommended the appointment of a board of inquiry based on his conclusion that a "prima facie case of discrimination" existed because if given access to this additional source of money (ie the supplementary funds) the CSAP schools would be able offer more services: 60. It would appear to follow that by not paying supplementary/additional funding to CSAP schools within HRM, CSAP is not able to offer services or facilities to those schools which it would be able to do if it received supplementary funding. This would appear to establish a prima facie case of discrimination. 61. In accordance with the foregoing I recommend that a Board of Inquiry be appointed. [AR page 136 paras 60-61] 14. Clearly the essence of the complaint and the Investigation Officer's fmdings is that with more funding CSAP would have the ability to offer its students more or better education services. However, this is no doubt also true of all schools. There are however no facts alleged in the complaint supporting the proposition that any CSAP students are receiving a lesser quality of education than per the standards mandated by the Province, or in comparison to that provided to students in the various regional school boards While CSAP does not receive the MGA s. 530 supplementary funding provided to some HRSB schools, neither do any of the other regional school boards, private schools, and significantly, as noted in the Investigation Report: "Supplementary Funding cannot be used for 59% of the students in the HRSB." 15. The Comeau complaint also alleges that the Respondents have violated section 15 of the Canadian Charter of Rights and Freedoms (the "Charter"). As noted in the learned Trial Judge's decision other parents of CSAP students commenced a court application to have the subject MGA s.530 school funding provisions declared unconstitutional as being contrary to the provisions of the Charter. The HRSB and CSAP boards both obtained intervener status in that proceeding [see Renaud v. Nova Scotia 2005 NSSC 226 para 1]. That court application was dismissed on consent as a

9 6 settlement was agreed upon between the Province, the two school boards and the parents which resulted in the MGA legislation being amended so CSAP's Halifax/Dartmouth schools now participate equally in the supplementary funding. 16. The record provided by the Comniission provide few details of its decision making process. There are no reasons, nor meeting minutes relating to the referral. The only evidence suggesting that a Commissioner's meeting or their decision to refer to the Board, ever took place is a document dated November 9 th, 2006 [AR page 175] from the Chief Judge of the Provincial Court nominating Lynn Connors for appointment to the Board in response to a "request received from the Nova Scotia Human Rights Commission dated the 3 rd day of November, 2006". The record contains two memorandums dated July 12,2006, one each in respect of HRM [AR page 182] and the Province [AR page 219] - each references an unattached legal opinion, attaches correspondence between the parties, and each purports to attach an "investigation report dated April 8 th, 2005". However, the investigation report on HRM actually provided in the record is undated [AR page 184], differs significantly from the April 8 th, 2005 report provided to HRM, and comes to a very different recommendation [AR page 193 para 48]. We are left to speculate that probably there was a meeting of the Commissioners at which the Investigating Report was presented - but in the absence of any evidence that the Commissions made any assessment of the report the only inference supported by the record is that the referral is de facto the Investigating Officer's decision. Applying Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817, at paragraph 44, it follows that the two versions of the investigation report must somehow be reconciled and treated as the Commissioners' reasons for the purpose of judicial review and this appeal. 17. The learned Trial Judge in quashing the referral found that the doctrines of mootness/res judicata applied as the challenged legislation had been amended. Further he found that the HRA does not have primacy over other legislation and that the French language first education was not a distinction based on ethnic origin, and that accordingly the decision to refer the complaint to the Board was unreasonable. In the granting of an order in the nature of certiorari on the above grounds the Trial Judge did not fmd it necessary to address the other supporting arguments raised by HRM.

10 7 These issues were also set out in HRM's Notice of Contention before the Court of Appeal and are now raised before this Honourable Court on appeal. 18. The Court of Appeal in overturning the Trial Judge, concluding that he should have accorded the Commission deference, and in particular the Commission's lack of jurisdiction was not "clear and beyond doubt" given the scope of potential remedies under the HRA. By its decision the Court of Appeal deferred to the Commission's interpretations of law, including the Commission standard of "prima facie case of discrimination" and on its jurisdiction to investigate Charter violations. PART II - QUESTIONS IN ISSUE 19. The issue before this Court is the correctness of the Court of Appeal's decision to overturn the learned Trial Judge's quashing of the Commission's decision to refer the Comeau Complaint to the Board as being an error of law. The issue poses the following related questions: What is the standard of review of a decision of the Human Rights Commission to refer a complaint to a board of inquiry? Has the authoritativeness of Bell v. Ontario Human Rights Commission for Courts to intervene in respect of a "short and perfectly simple question of law" been "totally destroyed"? What are the duties and functions of the Human Rights Commission? Does the Human Rights Commission have jurisdiction to investigate a complaint of a violation of s.15 of the Charter of Rights and Freedoms as its own ground of complaint? Does the Human Rights Act have primacy over other legislation in Nova Scotia? Is HRM a proper respondent to the complaint challenging the validity of legislation? Is the funding issue now moot/res judicata as a result the amendments to the MGA? Does language of education equate to ethnic origin ie. Do the students of a French language first school constitute an "ethnic" group? Is Nova Scotia's comprehensive scheme for providing French language education excluded from application of the HRA's prohibition against ethnic origin discrimination, as being a

11 8 reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society? Is HRM's funding of the Halifax Regional School Board exempt from application of the HRA discrimination prohibitions as being for the benefit of youth? PART III. ARGUMENT 20. Standard of Review: It is respectfully submitted that the trial judge applied the correct standard in respect of judicially reviewing the decision of the Commission to refer the Complaint to the Board. In paragraphs of his decision he reviewed the guidelines set out in Dunsmuir v. New Brunswick [2008J 1 S.c.R. 190 and interpreted them as follows: [50] Therefore the standard with reference to discretionary decisions is simply "reasonableness". [51] With reference to questions of law, the standard of judicial review remains that of "correctness". 21. This Court in Dr. Q v. The College of Physicians and Surgeons of British Columbia, 2003 SCC 19 defined the Court of Appeal's role in judicial review appeals: The role of the Court of Appeal was to determine whether the reviewing judge had chosen and applied the correct standard of review, and in the event she had not, to assess the administrative body's decision in light of the correct standard of review, reasonableness. At this stage in the analysis, the Court of Appeal is dealing with appellate review of a subordinate court, not judicial review of an administrative decision. As such, the normal rules of appellate review of lower courts as articulated in Housen, supra, apply. The question of the right standard to select and apply is one of law and, therefore, must be answered correctly by a reviewing judge In Schwartz v. Canada [1996] 1 S.c.R. 254 this Court at paragraph 37 noted that: "The first appellate court is not in a more advantageous or privileged position than the second court of appeal in assessing evidence." As the present case was decided on unchallenged documentary evidence, the opinion of Cromwell, J.A. commenting on Schwartz, in Barrett v. Reynold (1998), 170 N.S.R. (2d) 201 at paragraph 136 may also be an appropriate consideration:... This deferential approach applies to all factual findings, but is applied less strictly when the fmdings do not depend on the trial judge's assessment of credibility..

12 9 23. The Court of Appeal in the present case set out its interpretation of the standard of review: [13] I begin with this basic proposition. Superior courts have the jurisdiction to prohibit the work of administrative boards of inquiry in appropriate circumstances. The decision to do so therefore involves an exercise of discretion to which the judge is entitled to deference where the decision is made the subject of appellate review. In other words, we will intervene only if there exists an error in law, a palpable and overriding error of fact, or if the decision results in an injus~ice... [14] At the same time, it must be noted that Boudreau, J. was himself reviewing a discretionary decision, namely the Commission!s decision to advance its investigation to a Board of Inquiry~ the type of decision that falls squarely within the Commission's mandate. As such, the judge owed deference to the Commission. In tum, his duty to pay the Commission deference comes to us as a matter of law, attracting no deference. In other words, it would be an error in law for the judge to deny the Commission appropriate deference Reconciling Bell with Dunsmuir: Has the authoritativeness of Bell v. Ontario (Human Rights Commission) [1971 J S.C.J. No. 66 for Courts to intervene in respect of a "short and perfectly simple question of law" been "totally destroyed" or does it continue to have a role post Dunsmuir? 25. It is respectfully submitted that this Court decision in Dunsmuir, para 28, stands for the general proposition that administrative and quasi-judicial decisions of governmental bodies are subject to review by the Courts. The level of review depending on the wording of the enabling statute is either on a standard of correctness or reasonableness. By making the Board referral, the Commission came to a [mal decision in respect of its internal investigation process. Based on Dunsmuir, HRM should be entitled to judicial review of the Commission's decision to refer the Complaint to the Board. 26. It is respectfully submitted that this Court's decision in Bell, supra, has two aspects: the approach a human rights tribunal should take in its preliminary analysis of the complaint, and secondly the procedure for judicial review to intervene in respect of a "short and perfectly simple question of law". Bell recognizes that Human Rights Commissions only have jurisdiction to investigate matters within the scope provided for in the enabling legislation, and directs for the benefit of the respondent, that this "jurisdictional" determination occur as soon as reasonably possible in the process. There is no doubt that with the passage of time jurisprudence has read down the Bell

13 10 scope of "jurisdictional" issues. This Court had opportunity to comment on Bell in CanlUW. (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.c.R. 339: [45]... The legislator would have been aware of the great importance attached by some judicial decisions to so-called "jurisdictional fact fmding"; see, e.g., Bell v. Ontario Human Rights Commission... Viewed in this light, s (4)(d) was intended to confirm by legislation what Dickson J. had said in New Brunswick liquor Corp., namely that judges should "not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so" (p. 233). 27. In the present case the learned Trial Judge identified that generally issues related to the decision making process reviewable under Dunsmuir. He in particular identified and isolated Bell related jurisdictional issues. The Trial Judge described the applicable standards of review: 53 The Commission's determination that the complaint fell under the HRA and therefore under its jurisdiction is subject to review on a correctness standard. This proceeding also potentially raises issues of res judicata and mootness, matters of general law that are "of central importance to the legal system as a whole" and are outside the Commission's specialized area of expertise. These matters are likewise subject to review on a standard of correctness. 28. The Trial Judge's decision required of the Commission that it apply a correct interpretation of the law and to otherwise be reasonable. Historically the failure of either has resulted in the decision making body losing "jurisdiction" to deal with the matter before it. The Court of Appeal's decision skims over the Trial Judge's application of Dunsmuir, to focus on its dismissing of the authoritativeness of Bell. The Court of Appeal adopted a deferential standard of review that effectively required HRM establish that it was "clear and beyond doubt" that the Commission's decision was incorrect. In advocating for what effectively amounts to complete and blind deference to the Commission on both questions of law and the scope and procedure of the investigation, the Court of Appeal refuses to see even the investigation of a Charter challenge, as the subject matter of a human rights complaint, as being a classic jurisdictional matter: Martin v. Nova Scotia (Workers / Compensation Board) 2003 SCC 54 at para 39. The result is a deference so broad that even on issues of jurisdiction, the Court of Appeal has essentially rendered the Commission a law unto itself with its processes not subject to judicial review.

14 HRA s.29 obligates the Commission to investigate a human rights complaint. The legislation contemplates that during this investigative process the Commission is to have an objective neutral role: Syndicat des employes de production du Quebec et de L'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.c.R. 879 at page 899, and Bell v. CanadaiCooperv. Canada, (1996) 3 SCR 854 at para If the Commission decides to appoint a board of inquiry, the board is created to.be an independent adjudicator, and the Commission, with the resources of the crown behind it, becomes a separate party to the proceeding in essentially a prosecutorial capacity attempting to establish that the respondent has acted in violation of the HRA. It was noted by the Court of Appeal in Johnson v. Halifax Police Service 2005 NSCA 30 at paragraph 43: "that commission counsel is appointed for all board hearings with the mandate to see that "the case is appropriately and fully presented. '''' It is respectfully submitted in the present case that the Court of Appeal at paragraph 36 woefully underdescribes the significance of the Commissioner's referral decision as "it did no more than continue the inquiry by appointing a board." 31. There is no statutory appeal of the Commission's decision to refer the Complaint to the Board. The Court of Appeal considers the Board's appointment an interim decision, merely a continuation of the Commission's investigation, and thereby allowing the Court of Appeal to avoid dealing with the Dunsmuir issues. Instead the Court of Appeal has adopted of level deference that supports its advocating of putting all "jurisdictional" issues as a preliminary matters before the Board. This ignores the fact that the Board cannot provide the level of review granted by Dunsmuir in respect of whether the Commission fairly treated the respondent, or otherwise applied appropriate considerations in the referral decision. Further the Court of Appeal is not inclined to hear appeals of a preliminary board of inquiry decisions involving classic jurisdictional issues, ego when a Board of Inquiry ignored the express HRA wording as to who are the statutory mandated parties to the proceeding: Halifax Regional Municipality v. Nova Scotia Human Rights Commission and Hamish, 2008 NSCA 108 at para 6. Systematically, the Court of Appeal has been effectively eliminating Dunsmuir reviews of human rights processes. Once a complaint is filed the respondent cannot exit

15 12 regardless of any incompetence or misbehavior of the Commission. This result in lengthy inquiries which could be resolved quickly with proper and timely judicial intervention. An obligation for the Courts to so intervene was however recognized by Madam Justice L'Heureux-Dube, dissenting, in Tele-Communication Workers Union v. British Columbia Telephone Company, [1988] 2 S.c.R. 564 at page 585 and at page 593: The deferential approach is not a licence to refuse review. It is merely a caution to courts to recognize the proper role and function of administrative bodies. When such bodies fail to act within jurisdiction, the Court does not have the discretion to intervene, it has a duty to intervene at the behest of one or another of the parties. 32. The value of the Bell approach was recognized by the learned Trial Judge in his effort to avoid subjecting the parties, and also CSAP and HRSB as non-parties, to a lengthy and expensive process if it were unnecessary. He noted that the facts were essentially uncontested and were sufficient to address the issues before him. Whether the Commission processes could be invoked to challenge legislation as being contrary to the HRA or the Charter were clear simple questions of law. The Court of Appeal on the other hand expressed a preference to leave these clear legal jurisdictional issues, along with other Dunsmuir issues, to be decided by the Board. this "deferential" approach of the Court of Appeal has effectively overturned Bell, rendering it no longer authoritative and eliminating public access to legal process to challenge improper referral decisions. 33. In reaching its decision, the Court of Appeal relied on its earlier decisions in Psychologist ''}'' n v. Nova Scotia Board of Examiners in Psychology, 2005 NSCA 116, and Potter v. Nova Scotia (Securities Commission) 2006 NSCA 45, both of which were considered and distinguished by the learned Trial Judge. 34. It is respectfully submitted that the Trial Judge correctly distinguished Potter in fmding there should be no impediment, in circumstances where there are no facts in dispute, for a party to refer to a Court of competent jurisdiction for consideration of a question of law related to Commission referral to a Board, before the Board begins examining the totality of a complaint, in circumstances where the Commission has not felt that it was necessary to frame a preliminary legal question in

16 13 dispute. There is no interference with either the Commission or the Board as a ftrst instance decisionmaker because there are no facts in dispute. HRM was relying upon the Commission's fact ftndings. 35. In Psychologist '1' "Cromwell J.A. at para 21 approves of Sarah Blake's text, Administrative Law in Canada: "It must be clear and beyond doubt, she writes, that the tribunal lacks authority to proceed", and he notes that"... Prohibition is not a substitute for an appeal". HRM points out however that the HRA provides no procedure to appeal or review the Commission's referral decision. 36. Cromwell J.A., in Psychologist '1' ': also notes at para 21 that "Prohibition is a drastic remedy. It is to be used only when a tribunal has no authority to undertake (or to continue with) the matter before it." It is submitted however, that once the learned Trial Judge, applying Dunsmuir, quashed the Commission's referral, then prohibition was not only clearly applicable, but appropriate. 37. The Commission's Functions and Duties: It is submitted that the trial judge correctly determined the Commission's decision making process in making referrals to be the exercise of an administrative function which is subject to judicial review in nature of certiorari: [32] The Commission may appoint a Board of Inquiry to "inquire into" a complaint after the complaint is filed, "if the Commission is satisfied that, having regard to all circumstances of the complaint, an inquiry thereinto is warranted." 38. The Human Rights Act provides: 29 The Commission shall instruct the Director or some other officer to inquire into and endeavour to effect a settlement of any complaint of an alleged violation of this Act where (a) the person aggrieved makes a complaint in writing on a form prescribed by the Director; or (b) the Commission has reasonable grounds for believing that a complaint exists. 32A (1) The Commission may, at any stage after the ftling of a complaint, appoint a board of inquiry to inquire into the complaint. 39. The HRA gives the Commission extensive investigation powers including entering premises and compelling respondents to provide any information or records requested - with no conftdentiality requirements on the Commission's use or distribution of same. Given the potential harm that the

17 14 Commission could impose upon respondents, it is respectfully submitted that the HRA contemplates the Commission performing its tasks competently and in good faith. 40. The HRA does not expressly state a standard upon which the Commission is to refer a complaint to a board of inquiry. The Commission through the Investigating Officer's report adopts the standard of a "prima facie case of discrimination" as the basis for a referral. HRM submits that this is incorrect. The HRA does not authorize this standard. It is submitted this standard actually conflicts with the HRA s. 29(b) express wording for directing an investigation - it is unreasonable to infer a lower standard for a referral. Use of a "prima facie case" appears to have been based on a misapplication of this Court's decisions in Ontario Human Rights Commission v. Etobicoke [1982] 1 S.c.R. 202 and in Ontario Human Rights Commission v. Simpsons Sears Ltd. [1985] 2 S.c.R. 536 at page 558:...1 agree then with the Board of Inquiry that each case will come down to a question of proof, and therefore there must be a clearly-recognized and clearly-assigned burden of proof in these cases as in all civil proceedings. To whom should it be assigned? Following the well-settled rule in civil cases, the plaintiff bears the burden. He who alleges must prove. Therefore, under the Etobicoke rule as to burden of proof, the showing of a prima facie case of discrimination, I see no reason why it should not apply in cases of adverse effect discrimination. The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondentemployer. 41. In those cases however, the Court was merely saying that the normal civil burden of proof on the prosecuting party applies in human rights hearings. Furthermore, once a prima facie case was made out the evidential burden then shifts to the respondent to rebut. It is respectfully submitted that a prima facie case is not an appropriate standard for referral to a board of inquiry because when the respondent puts forward conclusive evidence of a valid defence to a complaint, under the prima facie standard, such would be irrelevant to the referral determination.

18 The approach for review existing in Nova Scotia prior to the present Court of Appeal decision was as referenced by the learned Trial Judge at paragraph 31 of his decision: 31 Section 29 was discussed in Nova Scotia Confederation of University Faculty Assns. v. Nova Scotia (Human Rights Commission) (1995), 143 N.S.R. (2d) 86 (N.S.S.C.), at paras : the Commission nevertheless has the duty to determine whether or not a complaint exists or that the information advanced and obtained gives rise to reasonable grounds for believing that a complaint exists. 43. Jurisprudence from this Court also supports a higher level of review than a prima facie case. In Syndicat des employes de production du Quebec et de L 'Acadie, supra, Sopinka J. commented at page 899: The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s. 36(3)(a) is met. [emphasis added] 44. In Bell v. Canada/Cooper v. Canada, (1996) 3 SCR 854, La Forest J. reasoned: 53 The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act. When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry. It is not the job of the Commission to determine if the complaint is made out. Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts. The central component of the Commission's role, then, is that of assessing the sufficiency of the evidence before it It is respectfully submitted that the Commission's adoption of a "prima facie case of discrimination" threshold for referral to a board of inquiry, when combined with the unprecedented level of deference afforded to that decision by the Court of Appeal, effectively results in there being no enforceable obligation owed by the Commission to HRA respondents to do a proper investigation.

19 16 There is no provision in the HRA providing for an appeal of a referral decision. Conversely the HRA does not have a privative clause in respect of referral decisions. The only practical remedy where a respondent believes the Commission has reached a decision improperly is to seek judicial review in the nature of certiorari. Yet, certiorari is meaningless unless this Court imposes a less onerous level of deference than adopted by the Court of Appeal. 46. In the forty years since Bell, there have been substantial developments inhuman rights law. It is respectfully submitted that it is now an opportune time for this Court to reconsider the standard for referral to a board of inquiry. This Court's decisions have actively campaigned for the spread of human rights recourse to almost all types of legal proceedings: Parry Sound Social Services v. Ontario Public Service Employees Union 2003 SCC 42 at para 52. The result is that victims of alleged human rights violations have more control over selecting a remedial process - they are no longer confmed to the Commission's processes. Labour arbitrations are now possibly the primary source for hearing human rights related matters. It is also now possible to tie in human rights violations a part of a tort or contract damage claim in the civil courts. Decisions to proceed in these forums are most likely based on the assessment of the chance of success at the litigation. It is unlikely a complaint would proceed in these situations where the prosecuting party does not hold a belief that a finding of discrimination was the probable outcome of the proceeding. It is hard to justify the Commission using a different standard. It is submitted that a victim should not get different standards of treatment of human rights violations based on where the complaint is commenced. Besides being improper, it encourages forum shopping. It is further submitted that as the Commission no longer holds a monopoly in respect of human rights enforcement, it is no longer necessary in referral decisions for the Commission to err on the side of caution in favour of the complainant. In fact, making a referral when the Commission does believe in its chances of success merely provides a complainant with false hope. 47. Further relevant developments in law include this Court decision in on Hill v. Hamilton Wentworth Regional Police 2007 SCC 41. It is respectfully submitted, based on Hill, para 32-44, that the Commission now has a duty of care towards the respondent of a human rights complaint. Given the proximity of the relationship between the Commission and HRA respondents, it is clearly

20 17 foreseeable that significant harm may result from a negligent performance by the Commission of its obligations. The harm of being wrongly subjected to a board of inquiry was one of the considerations underpinning the decision in Bell. Similarly under the HRA there is no appeal of a board of inquiry's wrong fmding of fact. In the present case the matter was scheduled for 10 days of hearing with no prospect of HRM ever receiving compensation for its costs if vindicated: Johnson v. Halifax Police Service, supra, at paras 33 and 39. Many individuals or small business respondents have neither the sophistication or fmancial resources to effectively defend this level of "investigation". 48. This Court in Bell v. Canada/Cooper v. Canada, supra, compared the referral role of Commission to that of Court in preliminary inquiry. Given that a duty of care is owed to respondents, perhaps a better comparison would be to role of criminal prosecutors who are expected to act in good faith, and where accordingly, this Court has imposed the standard that the prosecuting party have a reasonable belief that the adjudicative proceeding outcome will probably result in a finding that the respondent has acted in breach of the statute: Miazga v. Kvello Estate 2009 SCC 51 at para 63. HRA amendments enacted after the present referral provide additional enumerated grounds for allowing the Commission to not make a referral, showing a legislative intention for the Commission to not proceed to a board of inquiry where doubt of the outcome exits. In particular the amended s.29( 4) now provides: "The Commission or the Director may dismiss a complaint at any time if..(f) there is no reasonable likelihood that an investigation will reveal evidence of a contravention of this Act". 49. Based on the foregoing, it is submitted that the Commission should, before making a referral: Determine jurisdiction - whether the facts alleged and correct law put the complaint within the ambit of the BRA, and if so, Determine whether it is likely that an adjudicated fmding that a breach of the of the Act is a probable outcome of the proceeding. 50. Further, if the referral decision is based on an incorrect interpretation of law material to the decision then the decision is unreasonable. Reasonableness is explained in Dunsmuir at para 47 and references both to the process of articulating the reasons and to outcomes: ie. the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law.

21 For the reasons discussed herein, it is respectfully submitted that applying a correct interpretation of law, the factual findings contained in the Investigation Report do not reasonably support a referral of the Complaint. It is submitted the factual fmdings are insufficient to justify the Commission having a reasonable belief of success at the Board or even the lower standard of a reasonable conclusion that discrimination exists. Even the prima facie case standard, if applied correctly to a review of the totality of funding of the two school boards, does not reasonably lead to the conclusion of discrimination against CSAP. Rather the higher levels of funding to CSAP raises a prima facie case that the regional school boards have been discriminated against. It is surprising that some HRSB parent has not made such a claim given that the Commission is prepared to engage in lengthy investigations and litigation with no fmancial risk to the complainant. 52. Complaints based on alleged Charter violations: The HRA is not intended to resolve all forms of discrimination but only to address those matters as specified for protection by the provisions of the legislation. This point is noted by this Court in Bell, supra: This summary of the provisions contained in Part I of the Act shows that its purpose is to seek to prevent certain kind of discrimination in respect of specified fields. It applies only to the fields thus defined. 53. Similarly in University of British Columbia v. Berg [1993] 2 S.c.R. 353 at page 371: This interpretive approach does not give a board or court license to ignore the words of the Act in order to prevent discrimination wherever it is found. While this may be a laudable goal, the legislature has stated, through the limiting words in s. 3, that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature. 54. The Comeau complaint in paragraph 9 states: "I also allege that the Respondents have violated our equality rights under section 15 of the Canadian Charter or Rights and Freedoms." By referring this Charter issue to the Board, the Commission has self-extended its mandate from enforcement of violations of the HRA to enforcement of violations of the Charter. This is not a matter of inadvertence. At both judicial review and in the Court of Appeal the Commission has

22 19 defended its right to do so. Does the Commission have jurisdiction to investigate a complaint of a violation of Charter s.15 standing as its own ground of complaint? 55. HRM does not dispute that the Commission or the Board can consider and apply the Charter in the context of application to the subject matter of the complaint otherwise within its jurisdiction: ego a defence that a provision of the HRA is contrary to the Charter s freedom of expression provisions. However, it is respectfully submitted that the Commission cannot receive a complaint under the HRA alleging a breach of a Charter right: Martin, supra, at para 48. Further, the Court of Appeal in Nova Scotia (Workers' Compensation Board) V. O'Quinn, 157 N.S.R. (2d) 282 at para 52, dealing with a HRA Board of Inquiry making a declaration of constitutionality invalidity under the Charter expressed the opinion that the "Board of Inquiry in this matter ought not to have exercised such jurisdiction". 56. As per HRA s.29 it is clear that the legislative scheme intends that a complaint may only be based on an allegation of a violation of the HRA: "The Commission shall instruct the Director or some other officer to inquire into and endeavour to effect a settlement of any complaint of an alleged violation of this Act..." 57. Also as noted inhra s.33, to be a responding party to a complaint requires an allegation of a contravention of the Act. 33 The parties to a proceeding before a board of inquiry with respect to any complaint are (d) any person named in the complaint and alleged to have contravened this Act; 58. HRA s.34(7) on the jurisdiction and powers of the Board" again confirms this: (7) A board of inquiry has jurisdiction and authority to determine any question of fact or law or both required to be decided in reaching a decision as to whether or not any person has contravened this Act or for the making of any order pursuant to such decision.

23 20 (8) A board of inquiry may order any party who has contravened this Act to do any act or thing that constitutes full compliance with the Act and to rectify any injury caused to any person or class of persons or to make compensation therefor. 59. Human Rights legislation directly effects society at large and must be correctly interpreted. General questions of law such as this are matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal, and must therefore review the tribunal's decisions on questions of this kind on the basis of correctness, not on a standard of reasonableness: Canada (Attorney General) v. Mossop [1993] 1 S.c.R. 554 at pages 577 and Accordingly, it is respectfully submitted that reviewed on a standard of correctness there is no jurisdiction for the Commission to refer to a Board the issue of whether or not there has been a contravention of the Charter, and its decision to do so was both wrong at law and unreasonable. 61. Primacy of the Human Rights Act in Nova Scotia: HRM as a municipal corporation is a statutory creation of the legislature and as such, has only those powers granted expressly or by reasonable implication in the enabling legislation. In MacIlreith v. Hart Estate (1908), 39 S.c.R. 657 at pages 670-2, the City of Halifax was warned by this Court that the City acts as trustee for its residents in respect of its use of tax dollars and is subject to the legal recourse of ratepayers to account for expenditures not authorized by the enabling statute. This principle is described in Rogers, The Law of Canadian Municipal Corporations, at 592: "Statutory power express or implied must exist for every item of expenditure by local authorities...if statutory authority for doing what the municipality proposes to do or has done, is lacking, the expenditure is illegal." 62. MGA s.65 provides that "the Council may expend money required by the municipality for" a number of enumerated public purposes, the only ones listed that could cover expenditures related to public schools being (i) "providing school crossing guards" and (av) "all other expenditures (i) authorized by this Act or another Act of the Legislature."

24 MGA s.530 authorizes and directs HRM to provide funding in respect of the HRSB schools only. The Education Act creates a funding scheme wherein the province is solely responsible for the funding of CSAP. Education Act s.76 requires municipalities to make minimum fmancial contributions to the local regional school board, but impliedly they could contribute more than the minimum. However, nowhere in the Education Act does the Legislature either expressly or implicitly authorize discretionary municipal funding to CSAP. 64. The Court of Appeal at paragraph 28 of its decision referenced the concept of the quasiconstitutional nature of human rights legislation. HRM does not deny the importance of human rights law and nor that it should be considered in the interpretation of other statutes. However the Court of Appeal's reasoning ignores the fact that the express provisions of the HRA indicate a legislative intent that it does not have primacy over the MGA. HRA Section 10(1) provides: 10 (1) Where, in a regulation made pursuant to an enactment, there is a reference to a characteristic referred to in clauses (h) to (v) of subsection (1) of Section 5 that appears to restrict the rights or privileges of an individual or a class of individuals to whom the reference applies, the reference and all parts of the regulation dependent on the reference are void and of no legal effect. 65. The learned Trial Judge recognized the importance of this distinction: [29]....It should be noted that the Nova Scotia HRA does not include a specific "primacy" provision to confirm its precedence over other statutes and it addresses only discriminatory regulations, which are void. 66. The learned Trial Judge found that the objective of the complaint was to effectively amend the provisions of MGA s.530, and that even after the legislative amendment of that section, the Commission has sought to effectively extend the legislated period of retroactivity. The learned Trial Judge found that was no authority to do so: [76] I find that the HRA does not provide for the intended proceedings before the Commission and that the Commission therefore lacked jurisdiction to proceed with the 2003 and 2004 complaints of Mr. Comeau and to appoint a Board of Inquiry to adjudicate those complaints.

25 In reaching this conclusion the Learned Trial Judge examined and adopted decisions from other jurisdictions dealing with this issue, which the Court of Appeal in its decision did not apply: Gale Estate v. Hominick (1997), 147 D.L.R. (4th) 53 (Man. c.a.): Human rights legislation does not create and does not pretend to create a mechanism to determine the validity of or to strike down allegedly discriminatory provincial legislation. In other words, it is not a provincial Charter of Rights and Freedoms with the potential to limit the ability of the legislature to enact laws of general application... In my opinion, the Acts were never intended to address or provide a mechanism to deal with allegedly discriminatory provincial legislation Malkowski v. Ontario (Human Rights Commission), (2006), 219 O.A.c. 238 (D.C.): The [Human Rights) Code does not authorize the addition to legislation of words that are not there in order to bring the Building Code into compliance with the Code The [Human Rights) Code is not a constitutional document. It has been described as quasi-constitutional, and as more important than all others (save for the constitutional laws), but it falls short of being a constitutional document entitling the Tribunal or the Courts to disallow legislation or require changes to it To read the [Human Rights) Code as the applicant asks is to grant to the Tribunal the power to amend legislation to bring it into conformity with the Code. I cannot fmd that power in this language. 68. Reference was also made by the Trial Judge to Tranchemontagne v. Ontario (Director Disability Support) 2006 SCC 14, wherein this Court concluded that in Ontario the legislature had expressly given primacy of the Human Rights Code over all other enactments by Section 47(2): 47(2). Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act. 69. The importance of the express primacy provision is apparent in Tranchemontagne: 27 Yet the power to decide questions of law will not always imply the power to apply legal principles beyond the tribunal's enabling legislation. As noted above, statutory creatures are necessarily limited by the boundaries placed upon them by the legislature. Subject to its own constitutional constraints, a legislature may restrict the jurisdiction of its tribunals however it sees fit...

26 In Nova Scotia (Workers' Compensation Board) v. O'Quinn (1997) 157 N.S.R. (2d) 282, the Court of Appeal at para 53 expressly stated that the Legislature in enacting the HRA "did not intend to confer on a Board of Inquiry jurisdiction to declare invalid other provincial legislation". It is submitted that the learned trial judge was correct in his fmding that the HRA does not provide the Commission with jurisdiction to investigate whether a provincial statute violates the HRA. 71. Proper Respondents to Legislation Challenges: HRM does not provide education as a service. That service is provided by HRSB and CSAP to their students. How that education is funded was legislatively determined by the Province as set out in the funding scheme under the Education Act. HRM's statutorily mandated role is to provide the administrative function of collecting from municipal residents a source of educational funding relied upon and accounted for by the Province. If the Human Rights processes can be used to challenge the validity of legislation as being in violation of either the HRA or the Charter, is a party such as HRM, who has merely acted in compliance with the impugned legislation a proper respondent to the complaint? 72. HRA sa defmes discrimination: "For the purpose of this Act, a person discriminates where the person makes a distinction,..." It is respectfully submitted, that for HRM to have engaged in discrimination it must have made a "distinction" on a characteristic enumerated in HRA s.5. However, HRM did not make a distinction; it merely implemented an administrative procedure in furtherance of policies and objectives directed by the Province by MGA s.530. In doing so there was no active thought or decision within HRM about who or who not to fund. 73. It is respectfully submitted that the Learned Trial Judge in paragraph 61 of his decision correctly concluded that: "HRM cannot be accused of discrimination because it was abiding by validly enacted Provincial Legislation". HRM does not have the option to ignore the legislation. This Court in Quebec (Commission des droits de fa personne et des droits de fa jeunesse) v. Communaute urbaine de Montreal 2004 SCC 30 at para 19 endorsed the proposition that: " Laws must be given their full force and effect as long as they are not declared invalid."

27 The Complainant's challenge here is to the legislation. In continuing with the Complaint the Commission appears prepared to conduct a full review of the legislative organization and manner of funding of a province wide French first school board. If a "distinction" is made here, it is made by the legislature - only the Province can be called upon to justify its legislative actions. 75. The decision of the Court of Appeal to require HRM continue as a party to the Complaint is contrary the logic it applied in O'Quinn, supra: 21.. " The Workers' Compensation Board was, however, adhering to a proper application of s. 70. If doing so resulted in discrimination based upon marital status, and I make no finding in that regard, then the discrimination must be attributable to the legislation repealing s. 61 of the Workers' Compensation Act, not to the actions of the Board. 76. It is respectfully submitted that the decision of the Court of Appeal requiring HRM, who only acted as statutorily mandated, to be subjected to the lengthy and expensive Board processes involved in the HRA and Charter challenges to the MGA legislation cannot be justified. 77. Application of Abuse of Process doctrine: Canadian Courts strive to prevent abuse of process in both judicial and quasi-judicial proceedings. Jurisprudence shows a continuously developing umbrella doctrine of abuse of process, same being an inclusive spectrum of considerations in the nature of mootness, res judicata and issue estoppel designed to address various policy concerns. The policy considerations applicable to abuse of process doctrine situations were canvassed by this Court in Toronto (City) v. CUPE Local 79, 2003 SCC 63. That case involved a labour grievance arbitration with the Union attempting to re-litigate the facts underlying the grievor's criminal conviction. As the parties to the two proceedings were not the same, strict application doctrine of issue estoppel would not apply to prevent this re-litigation. This Court at paras 37-38, however found such re-litigation to be an abuse of process: 37 In the context that interests us here, the doctrine of abuse of process engages "the inherent power of the court to prevent the misuse of its procedure, in a way that would. bring the administration of justice into disrepute" (Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras :

28 25 The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.). One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added.] As Goudge J.A. 's comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. (See, for example, Franco v. White (2001),53 O.R. (3d) 391 (C.A.); Bomac Construction Ltd. v. Stevenson, [1986] 5 W.W.R. 21 (Sask. c.a.); and Bjarnarson v. Government of Manitoba (1987), 38 D.L.R. (4th) 32 (Man. Q.B.), affd (1987),21 c.p.c. (2d) 302 (Man. c.a.).) This has resulted in some criticism, on the ground that the doctrine of abuse of process by relitigation is in effect non-mutual issue estoppel by another name without the important qualifications recognized by the American courts as part and parcel of the general doctrine of non-mutual issue estoppel (Watson, supra, at pp ).[Emphasis added] 38 It is true that the doctrine of abuse of process has been extended beyond the strict parameters of resjudicata while borrowing much of its rationales and some of its constraints. It is said to be more of an adjunct doctrine, defmed in reaction to the settled rules of issue estoppel and cause of action estoppel, than an independent one (Lange, supra, at p. 344). The policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel (Lange, supra, at pp ): The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application [pagel04] of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts' and the litigants' resources, to uphold the integrity of the legal system in order to avoid

29 26 Also at paragraph 51: inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice. [Emphasis added] 51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. 78. The Court of Appeal has endorsed the application by tribunals of measures to prevent abuse of process in respect of the application of Human Rights laws even though by strict application the rules of res judicata would not otherwise apply: Kaiser v. Dural, 2003 NSCA 122 at paras Mootness: As a result of the separate Charter challenge and the ensuing negotiations between CSAP, HRSB and the Attorney General's office, the issue of the fairness of HRM supplementary funding was brought to the attention of the Legislature and a settlement was reached which resulted in the legislated response of amending the MGA with retroactive fmancial relief. As noted by the Trial Judge the settled Charter action had also sought similar damages relief to the Comeau Complaint. It is also noted that CSAP board, which is the elected representative of all CSAP parents signed onto the Charter settlement but is not a party to the complaint and has not requested further remedial consideration. 80. It is respectfully submitted that the issue underlying the Comeau Complaint has become an abuse of process in the nature of mootness as a consequence of the amendment on November 23, 2006, of MGA s.530 to provide for a equal per student sharing of HRM supplemental funding between the HRSB and CSAP. The Commission's record does not contain any meaningful analysis of the CSAP funding amendments which were introduced into the legislature on June 30, The

30 27 Investigating Officer's covering memorandum only notes that the complainant Comeau did not believe the settlement addressed his issues. [AR page 182] 81. In making the amendments, the Legislature considered the remedial aspect of supplementary funding and made the amendments retroactive to April 1, In fixing this date the Legislature limited the fmancial consequences to HRM of providing the funding to the then current 2006 taxation year. It is respectfully submitted that in light of the amendments, it was unreasonable for the Commission to continue with the referral without a consideration of the fact that the issue had become moot, or the reasons why the Legislature limited its retroactivity. 82. In Borowski v. The Attorney General of Canada [1989] 1 S.C.R. 342 this Court stated at page 353:... If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision.. The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has. disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. 83. This Court, in Borowski, noted at page 354 that "the legislative context of this claim has disappeared". The Court gave the following related example of refusing to hear moot cases: in a fact situation analogous to this appeal, the Privy Council refused to address the constitutionality of challenged legislation where two statutes in question were repealed prior to the hearing: Attorney-General for Alberta v. Attorney- Generalfor Canada, [1939] A.e. 117 (P.e.) 84. As one of the rationales for the doctrine of mootness the Court remarked at page 362: The third underlying rationale of the mootness doctrine is the need for the Court to demonstrate a measure of awareness of its proper law-making function. The Court must be sensitive to its role as the adjudicative branch in our political framework. Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch.

31 In Borowski, this Court at page 364 noted the circumstances which would justify waiving the issue of mootness as being: if the Court's decision will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the action. cases which although moot are of a recurring nature but brief duration. In order to ensure that an important question which might independently evade review be heard by the Court an issue of public importance of which a resolution is in the public interest. 86. It is respectfully submitted that none of these considerations exist in the present case. Even if the Board has jurisdiction to consider the issue, the only purpose of the inquiry proceeding would be to declare that the legislation, before the amended MGA s.530a and s.530b, was contrary to the HRA. As that previous legislative funding scheme is no longer in place, such a determination would have no tangible value. The Commission argues that a board of inquiry could issue a remedy going back beyond the dated determined appropriate by the legislature. That however is not the rule in law. This Court in Quebec (Commission des droits de La personne et des droits de Lajeunesse) v. Communaute. urbaine de Montreal, supra, endorsed the proposition that" Laws must be given their full force and effect as long as they are not declared invalid." The Court further stated: 19 In such cases, well-established principles of public law rule out the possibility of awarding damages when legislation is declared unconstitutional, be it on the grounds of a violation of the separation of legislative powers within the Canadian federation or of non-compliance with the Canadian Charter. 23 Recourse to the civil liability regime to punish violations of the Quebec Charter does not oust those fundamental rules which serve to safeguard the free and effective discharge of the legislative function, subject to mechanisms currently in place for reviewing constitutionality. In this respect, immunity implies a necessary distinction between a fault or negligent act and one that is unlawful or invalid because it fails to comply with fundamental, constitutional or quasi-constitutional standards.

32 During the course of this litigation, the Commission suggested that a possible remedy would be to require HRM to provide additional funding to CSAP "to provide for retroactive recognition of the situation." [AR page 133 para 44) As stated, CSAP is not a party to the complaint and has not indicated that it is asking for remedial consideration. If this benefit has been lost, it has been lost in time. It is not possible to go back in time and provide the students with the education that they would have received if they had the additional funding in If the funding had been available, it is now only possible to speculate how it would have been used. 88. Even if the Board had jurisdiction to exercise the extraordinary remedy of reading into the MGA an obligation to share school supplemental funding with CSAP (as per the presentmga provisions), such a rule could only have go forward effect, but no retroactivity: Vriend v. Alberta [1998) S.C.J. 29 at para Res Judicata: The Trial Judge also determined that the supplementary funding issue was res judicata. The consent order resolution of the litigation of the funding issue involving representative parents and the affected school boards was approved the Court. This matter should be considered an abuse of process in the nature of res judicata even though Comeau was not personally a party to that proceeding. A minority language school board established in furtherance of Charter s.23 "represents the minority official language community": Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1 at para 43. The court Charter challenge dealt with the same basic issues and there is nothing to suggest the interests of affected parents, in challenging the validity of the legislation, were not appropriately represented by CSAP: see Renaud v. Nova Scotia 2005 NSSC 226 at paras 3-6. Comeau and his children are not specially affected by the legislation. Under these circumstances Comeau cannot justify standing to further pursue what is effectively the same challenge to the MGA. In denying standing in Borowski, supra, this Court noted that "the legislative context of this claim has disappeared". In an earlier decision of this Court involving Mr. Borowski, Canada (Minister of Justice) v. Borowski [1981) 2 S.C.R. 575 at page 598, a challenge to the validity of Criminal Code provisions was made under the Canadian Bill of Rights. In granting standing this Court assessed that no one who was specially affected might come forward to litigate the matter. The Court opined that a person with a genuine interest could litigate if "there is no other reasonable and effective manner in

33 30 which the issue may be brought before the Court". In the present however. case as the matter has already been resolved before the Court. this aspect of standing no longer exists. 90. Language as a ground of Discrimination: The Comeau complaint revolves around the different funding of French and English language schools. Language per se, however, is not an enumerated HRA prohibited ground of discrimination. The Investigation Reports accepts without question or inquiry that attendance at French ftrst education in the Halifax area CSAP schools equates to being of Acadien ethnic origin and that attendance at HRSB equates to something else. [AR page 134 para 49] There is nothing in the report to suggest even a cursory assessment or comparison of the portion of the CSAP students who are actually of Acadien origin with the portion of the HRSB English language students who are of Acadien origin. The logic applied on this issue in the Report could have as easily concluded that a French language Aboriginal band was also of Acadien ethnic origin. 91. Two British Columbia decisions in relation to section S of the B.C. Human Rights Code found that language per se is not a prohibited discrimination on the basis of ancestry and place of origin. The cases recognized that as language has a dual aspect relating to ethnicity and communication, further factual investigation is required before language can be linked with ethnicity. In Fletcher Challenge Canada Ltd. v. British Columbia Council of Human Rights and Harvinder Singh Grewal (1992) 97 D.L.R. (4th) 550, the Court stated: One could hardly disagree with the member designate that language is directly related to race, colour, ancestry and/or place of origin. But it cannot be said that it is necessarily related. Apart from its capacity to convey culture, language is also a communication skill that may be learned, and the ability to learn any language is not dependent on race, colour or ancestry. 92. Similarly, in Yang v. British Columbia (Human Rights Tribunal), (200S) B.C.J. No. 2064: 13S... Language is not, similarly, a specifted ground under s.s(l)(a). Although there is little doubt that language can be an aspect of race, ancestry or place of origin, it is not a "free standing" prohibited ground of discrimination requiring "positive steps" to ensure that disadvantaged groups beneftt equally from services.

34 It is submitted that in Canada, with only two national official languages, it is at best conjecture to ascribe ethnicity merely on language spoken. In Cape Breton Development Corp. v. United Mine Workers of America, District No. 26, Local 4522 (Sectionmen) [1985] N.SJ. No. 396 the Court of Appeal noted with approval on conjecture: 14 Lord MacMillan in Jones v. Great Western Railway Company (1931), 144 L.T. 194 at p. 202 said: "The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof " 94. This point was picked up by learned Trial Judge in the present case: [64] There is not one shred of evidence alleged in the complaints that CSAP or any of its schools did not receive funding from HRM because some of the CSAP students were of Acadien origin. CSAP schools were simply not part ofhrm or HRSB's funding mandate in 2003 and Moreover, it is common knowledge that CSAP schools provide a Frenchfirst language education to children of entitled parents from any ethnic background. [65] As such, the complaint did not make out a claim under the HRA. Put differently, the substance of the complaint did not contain the elements necessary for adjudication under the HRA. 95. The Investigation Officer could have compared the situation of the Complainant's children to other CSAP or regional schools across Nova Scotia outside the former cities of Halifax and Dartmouth, or local private schools, and would have found no difference in treatment. From HRM' s perspective the only distinction between schools is the legislative directive to provided funding. In Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, this Court at paragraph 49 remarked that in determining whether discrimination exists "the first task is to determine the appropriate comparator group", and in doing so: 53.., the comparator group should mirror the characteristics of the claimant or claimant group relevant to the benefit or advantage sought, except for the personal characteristic related to the enumerated or analogous ground raised as the basis for the discrimination: Hodge, supra, at para. 23. The comparator must align with both the

35 32 benefit and the "universe of people potentially entitled" to it and the alleged ground of discrimination: Hodge, at paras. 25 and In the present case there are likely many students of Acadian descent at HRSB receiving supplementary funding, just as there are likely students of non-acadian descent in the DartmouthfHalifax CSAP schools. While the Investigation Officer stereotypes French first language students as being ethnically Acadian when they could easily be of Haitian descent, the reality is that many students of Acadian descent are legislatively ineligible based on language to attend CSAP schools. The jurisprudence on Charter s.23 recognizes the extent of such minority language assimilation in Nova Scotia and the purpose of Charter s. 23 to curtail same: Doucet-Boudreau v. Nova Scotia, 2003 SCC 62 at paras 6 and The learned Trial Judge noted that attendance at a CSAP school is not restricted to children of Acadien descent. He recognized that CSAP schools are intended to provide constitutionally protected language rights of French and English speaking minorities; however such protection is based on language rather than genetic lineage. In reaching this political compromise the drafters of Charter s. 23 did not base the language rights on ethnicity but instead elected to divorce the two issues: Doucet Boudreau, supra at paras 28. The Commission is further complicating the official language equation by introducing the concept of rights based on ethnicity. If language of education equates to ethnic or national origin then the Nova Scotia school system discriminates against possibly dozens of ethnic or national origin groups by not providing education for all those languages. Also many Nova Scotia private service industry businesses function only in English which would then also be prohibited discrimination. It is respectfully submitted that the Commission's superficial equating oflanguage to ethnic or national origin is not only wrong at law, also unreasonable. 98. Reasonable Limit: The legislative scheme for school funding under the Education Act has the Province solely responsible for funding to the province wide CSAP and municipalities contributing in varying amounts to local regional schools. Jurisprudence is clear that not every such distinction is discriminatory. To constitute discrimination there must be is a component of

36 33 arbitrariness to the subject distinction. Per this Court in McGill University Health Centre v. Syndicat des employes de 11!opital general de Montreal, 2007 SCC 4: 49. What flows from this is that there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden. 99. The Commission's investigation, as reflected in the Investigation Report, focused only on the one historical anomaly component ofhalifaxidartmouth school funding which was not available to the CSAP or any other schools. It appears that the investigation was rather arbitrary in its approach as it ignored the overall impact of the complex school funding formulas and the constitutional context of minority language education. It is respectfully submitted however, that the CSAP funding when viewed in the context of the constitutional language educational rights and the related funding scheme is not arbitrary at all Further HRA s.6(f) provides for an exemption from the discrimination prohibitions "where a denial, refusal or other form of alleged discrimination is... (ii) a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society". The Investigation Report recognizes that under the Education Act, the Province assumes full responsibility for all CSAP funding to provide mandated education standards in response to the difficult logistics of fairly allocating responsibility for CSAP funding between the various municipalities scattered across Nova Scotia. However the response in the April 8, 2005 investigation report, to HRM raising the reasonable limit issue: "46 ii) There is no apparent basis to support the contention that the failure to provide equivalent funding is a reasonable limit..." [AR page 134 para 46]. Conversely the undated version of the Report fmds that whether the subject discrimination is a reasonable limit"... cannot be determined by this report at this stage of the process". [AR page 191 para 38]

37 The learned Trial Judge at paragraphs 67 and 68 of his decision considered the appropriateness of applying the provisions of the HRA to the funding of a minority language education school systems established in compliance with Charter s.23, noting: "67... minority language education funding issues have been historically contested under s. 23 of the Charter and not under provincial human rights legislation. Section 23 provides the codified framework establishing these rights... " The Trial Judge then concluded: [68] In fact, when funding has been alleged to have been inadequate or below the standard of the majority, claims have been advanced, not under s. 15 of the Charter, but under the equivalency provisions implicit in s. 23 and the subsequent jurisprudence dealing with such cases. In my respectful opinion, complaints such as advanced by Mr. Comeau are not the purview of provincial human rights legislation, but belong rather to that class of challenges alleging violations of the equivalency provisions implicit in s. 23 of the Charter and the jurisprudence on that issue (See Dauphinee (Litigation Guardians of) v. Conseil Scolaire Acadien Provincial, 2007 NSSC 238 (CanLm, 2007 NSSC 238) Charter s.23 mandates French language education rights, which are given effect to by the statutory scheme provided for in the provisions of the Education Act. Clearly CSAP receiving all of its funding from the Province as part of the scheme is a prescribed limit. Is Nova Scotia's comprehensive scheme for providing French language education excluded by HRA s. 6 from application of the HRA s prohibition against ethnic origin discrimination as being a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society? 103. CSAP was created as a province wide French first language school board as opposed to the various English first language regional school boards. This was done by Nova Scotia as a practical means of facilitating its obligations in respect of minority language education rights mandated under Charter s.23. It is noted that in the Charter s. 23 "language" is treated separately from the equality wording of Charter s.15: "national or ethnic origin". Under the Education Act, CSAP is mandated to provide French first language education to children of "entitled parents" as defined in s.3(1) (h), which provides entitlement to access CSAP schools as required by Charter s As noted in paragraphs 67 and 68 of the learned Trial Judge's decision, one of the issues raised in the present appeal is the relationship between the HRA and the Charter obligations of the

38 35 Province to provide minority language education. This is similar to the issue of the relationship between the Charter and the Quebec Charter defined by the Court in Gosselin (Tutor of) v. Quebec (Attorney General) [2005) 1 S.C.R. 238: the issue at the root of this appeal is the relationship of equality rights in both the Canadian Charter and the Quebec Charter to the positive language guarantees given to minorities under the Constitution of Canada and the Charter of the French language In Gosselin, supra, this Honourable Court confirmed its approach of treating Charter s.23 as providing a comprehensive code for minority language educational rights: 21 In Mahe v. Alberta, [1990) 1 S.C.R. 342, this Court explained that any analysis of minority language instruction must take as its starting point the guarantees provided in s. 23 in the Canadian Charter. The reasoning found at p. 369 of the reasons of the Chief Justice in Mahe apply here with equal force: Section 23 provides a comprehensive code for minority language educational rights; it has its own internal qualifications and its own method of internal balancing. A notion of equality between Canada's official language groups is obviously present in s. 23. Beyond this, however, the section is, if anything, an exception to the provisions of ss. 15 and 27 in that it accords these groups, the English and the French, special status in comparison to all other linguistic groups in Canada... [I]t would be totally incongruous to invoke in aid of the interpretation of a provision which grants special rights to a select group of individuals, the principle of equality intended to be universally applicable to "every individual". [Emphasis added.] As noted earlier, s. 23 could also be viewed not as an "exception" to equality guarantees but as their fulfilment in the case of linguistic minorities to make available an education according to their particular circumstances and needs equivalent to the education provided to the majority (Arsenault-Cameron, at para. 31). ) [Emphasis added] 106. This Court in Arsenault-Cameron, supra, at para 31 regarding the application of Charter s.23, reasoned that the section imposes an obligation to minority language students to "provide them with a standard of education equivalent to that of the official language majority". In advocating an "equivalent" standard of education, the Court reiterated its rejection of an "identical" standard:

39 36 48 The key to resolving this debate is found in Mahe, supra, at p. 378, where Dickson C.J. says:... the specific form of educational system provided to the minority need not be identical to that provided to the majority. The different circumstances under which various schools find themselves, as well as the demands of a minority language education itself, make such a requirement impractical and undesirable This Court has opined that "equivalent" does not involve adopting a formal vision of equality, and in fact, substantive equality may require differential treatment for the minority language education students. This is summarized in Gosselin at paragraph 15: 15 In the context of minority language education, equality in substance as opposed to mere formal equality may require differential treatment as the Court noted in Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1, at para. 31: Section 23 is premised on the fact that substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide them with a standard of education equivalent to that of the official language majority It is submitted that an important consideration in establishing an equivalent standard is the recognition of the relevance of the costs of providing the minority language education in determining whether the number of students warrant the provision of such services. Jurisprudence indicates that "relevant factors include the number of children for whom the minority language educational services will be provided, the cost of providing a separate facility, the adequacy of resources and any other related considerations": Lavoie v. Nova Scotia [1989] N.S.J. No. 100 at para It is further submitted that the adoption of the "equivalent" standard rather than an identical standard was intended to not just protect, but facilitate the expansion of minority language education services. Conversely, the Commission's expectation of identical services and facilities for minority language students would likely discourage the provision and expansion of minority language education by rendering it cost prohibitive, as the number of students may not warrant it: Lavoie, supra at para 51.

40 As seen, the investigation processes of the Commission into minority language education funding has taken a very different approach from the "equivalent" standard of Gosselin. The Commission's interpretation of the prohibition on discrimination contained in the HRA, as per the Investigation Report, clearly takes the stance that the failure to provide the French first language schools with identical treatment in accessing the municipal source of supplementary funding creates a prima facie case of discrimination warranting a referral to the Board. A likely consequence of this identical standard, is that Nova Scotia municipalities will be wary about contributing above the minimum required funding to local regional schools as they also need to able to raise equal funding for CSAP The discrimination prohibition provisions contained in human rights legislation are similar in scope to the equality guarantees contain in Charter s.ls. However this Court has declined to apply Charter s. 15 equality rights to Charter s.23 mandated minority education. The Court in Gosselin at para 2 confirmed its position that there is no hierarchy of Constitutional Rights: 2... As the Court has stated on numerous occasions, there is no hierarchy amongst constitutional provisions, and equality guarantees cannot therefore be used to invalidate other rights expressly conferred by the Constitution. All parts of the Constitution must be read together Nova Scotia has a prescribed legislative scheme for CSAP funding, which to ensure proper funding levels is separate from the funding of all the other school boards. It is respectfully submitted that its illogical to permit the HRA provisions regarding discrimination on the basis of ethnic or national origin to impact on the provision of Charter s.23 mandated minority education rights when the equality rights guaranteed by Charter s.ls cannot do so. This is particularly so given the potential that application of the HRA rights may in the broader scope adversely affect the expansion of minority language education. The Commission intervention seems irreconcilable with this Court direction that "the government should have the widest possible discretion in selecting the institutional means by which its s. 23 obligations are to be met": Arsenault-Cameron at para 52. Accordingly, if application of the HRA prohibition of discrimination in the providing of services, on the basis of ethnic or national origin, has the potential to negatively impact on a legislated Charter s.23 minority

41 38 language education funding scheme, it should not be applied as the legislated scheme is a reasonable limit under HRA s Exemption for Services for the Benefit of Youth: During the investigation HRM raised the issue that the funding to HRSB is exempt from application of the HRA as being for the benefit of youth. HRA s.6 provides that "Subsection (1) of Section 5 does not apply (a) in respect of the provision of or access to services or facilities, to the conferring of a benefit on or the providing of a protection to youth or senior citizens;..." Accordingly even if HRM funding to HRSB is a service which has a discriminatory effect, HRM submits that it is exempt from application of the HRA prohibited discrimination as being for the benefit of youth "Youth" is not defmed in the HRA, but Education Act s.5(2) provides that: "every person over the age of five years and under the age of twenty-one years has the right to attend 'a public school". Further Governor in Council regulation s.34, under the Education Act, requires school attendance for: "Every child in the Province of Nova Scotia who has attained the age of six years and has not attained the age of sixteen years" The clear language of HRA s.6(a) is dismissed by the Investigating Officer: 38. Jurisdiction of Commission - Sections 6(a) and Section 6(f)(ii). The Commission has always taken the position that Section 6(a) ofthe Act is badly drafted but the intent of the Section to protect programs for youth and seniors from complaints of discriminated based on age only. On that basis the Commission does have jurisdiction. [AR page 191 para 38] 116. The Commission has interpreted the youth benefit/protection exemption as only being in respect of "discrimination based on age only" - choosing to effectively add these words to the HRA. The actual wording of the HRA is however unambiguous. Elbow room to interpret legislation only exists if the wording permits more than one meaning. The ordinary meaning of the subject wording does not support a need for the Commission's interpretation of adding additional words to the section. Accordingly it is respectfully submitted that the Commission's decision to refer the Complaint to the Board is incorrect at law.

42 In Mossop, supra, this Court stated at page 581: 36 Absent a Charter challenge of its constitutionality, when Parliamentary intent is clear, courts and administrative tribunals are not empowered to do anything else but to apply the law. If there is some ambiguity as to its meaning or scope, then the courts should, using the usual rules of interpretation, seek out the purpose of the legislation and if more than one reasonable interpretation consistent with that purpose is available, that which is more in conformity with the Charter should prevail 118. A liberal and purposive Interpretation of the HRA may give some ability to bend the English language, but not to break it, nor to stand it on its head. Achieving the interpretation the Commission seeks in the present case would require the judicial inclusion of additional words such as "age based" discrimination. To do so would be contrary to established jurisprudence. The New Brunswick Court of Appeal in Societe des Acadiaens du Noveau -Brunswick [1987] N.BJ. No. 544, observed that only "in rare circumstances, the court may delete or substitute words in order to make a statute intelligible and workable" The appropriateness of judicial inclusion of wording into a statute was also considered in Tokhasepyan v. Gower Decision No. 170/90 14 W.C.A.T.R. 282, at paras 44. Therein, the WCAT. board provides a superior summary and analysis of jurisprudence restricting judicial rewriting of statutes to situations where without such substitution the provision is unintelligible or absurd or totally unreasonable; where it is unworkable; and where it is totally irreconcilable with plain intention shown by the rest of the statute. The WCAT board concluded that if the legislation "is not ambiguous and is not necessarily inconsistent with the legislative intent" it should not be modified, that the rules of statutory interpretation require that words be given their plain and literal meaning unless there is an ambiguity or the construction is capable of sustaining different interpretations: The literal rule is expressed in the case of Minister of Manpower and Immigration v. Brooks (1973) 36 D.L.R. (3d) 522 (S.C.C.) at page 532: It is not for this or any other Court to revise through interpretation, governrnental policies... when expressed in understandable words... the consequences of a falsehood may be harsh, but no dispensing power is given to this Court nor is it entitled, when Parliament has spoken as clearly as it has, to provide its own measure of fatal deficiency HRM submits that an interpretation of HRA s.6 which spares youth and seniors programs from the disruption and fmancial costs associated with defending HRA challenges on prohibited

43 40 grounds such ethnicity, sexual orientation, source of income etc., is not absurd, unworkable, nor inconsistent with the legislative intention. For example CSAP receives more total per student funding than HRSB. If as the Commission says CSAP exists to benefit Acadian youth then s.6 would protect that school system from a ethnicity based human rights complaint from HRSB parents. Other HRA s.6 protection examples would include: school milk program for children of parents on welfare, seniors apartments built and funded by Irish-Canadian or Anglican or LGBT communities and restricted to residents from those communities, an African Canadian youth centre, Make a Wish Foundation, the Boy Scouts It is respectfully submitted that the Commission's interpretation of HRA s.6 is wrong and that HRM funding of HRSB services falls within the exception of services for the benefit of youth. Accordingly it is respectfully submitted that the Commission's decision to refer the complaint to a board of inquiry is again both incorrect in law, and consequentially also unreasonable. PART IV - SUBMISSIONS ON COSTS 122. If successful, HRM is seeking costs as per the Court's tariffs. PARTIV-ORDERSOUGHT 123. HRM submits that the Learned Trial Judge was correct in his rmding that the Commission's decision to refer the Comeau Complaint to a Board of Inquiry is both wrong at law and unreasonable and accordingly seeks an order of this Court overturning the decision of the Nova Scotia Court of Appeal and reinstating the order of the Learned Trial Judge quashing the appointment of the Board of Inquiry. y submitted, Randolp Solicitors for the Halifax Regional Municipality

44 41 PART VI - TABLE OF AUTHORITIES 1. Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1 Cited in paragraphs 89, 104, 106, Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78 Cited in paragraph Baker v. Canada (Minister of Citizenship & Immigration), [1999J 2 S.c.R. 817 Cited in paragraphs Barrett v. Reynold (1998), 170 N.S.R. (2d) 201 Cited in paragraph Bell v. Canada (Canadian Human Rights Commission); Cooper v. Canada (Canadian Human Rights Commission), (1996) 3 SCR 854 Cited in paragraphs 44 and Bell v. Ontario (Human Rights Commission) [1971] S.CJ. No. 66 Cited in paragraphs 19,24,26,27,28,32,46,47, and Borowski v. The Attorney General of Canada [1989] 1 S.C.R. 342 Cited in paragraphs 82, 83 and Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554 Cited in paragraphs 59 and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 Cited in paragraph Canada (Minister of Justice) v. Borowski, [1981] 2 SCR 575 Cited in paragraphs 61 and Cape Breton Development Corp. v. United Mine Workers of America, District No. 26, Local 4522 (Sectionmen) [1985] N.SJ. No. 396 Cited in paragraph Doucet-Boudreau v. Nova Scotia, 2003 SCC 62 Cited in paragraphs 96 and Dr. Q v. The College of Physicians and Surgeons of British Columbia, 2003 SCC 19 Cited in paragraph 21

45 Dunsmuir v. New Brunswick [2008] 1 S.c.R. 190 Cited in paragraphs 20,24,25,27,28,31,32, 36 and Fletcher Challenge Canada Ltd. v. British Columbia Council of Human Rights and Harvinder Singh Grewal (1992) 97 D.L.R. (4th) 550. Cited in paragraph Gale Estate v. Hominick (1997), 147 D.L.R. (4th) 53 (Man. c.a.) Cited in paragraph Gosselin (Tutor of) v. Quebec (Attorney General) [2005] 1 S.c.R. 238 Cited in paragraphs 104, 105, 107, 110 and Halifax Regional Municipality v. Nova Scotia Human Rights Commission and Hamish, 2008 NSCA 108 Cited in paragraphs Hill v. Hamilton-Wentworth Regional Police 2007 SCC 41 Cited in paragraph Johnson v. Halifax Police Service 2005 NSCA 30 Cited in paragraph 30 and Kaiser v. Dural, 2003 NSCA 122 Cited in paragraph Lavoie v. Nova Scotia [1989] N.S.J. No. 100 Cited in paragraphs 108 and Macllreith v. Hart Estate (1908), 39 S.c.R. 657 Cited in paragraph Malkowski v. Ontario (Human Rights Commission), (2006), 219 O.A.c. 238 (D.C.) Cited in paragraph Martin v. Nova Scotia (Workers I Compensation Board) 2003 SCC 54 Cited in paragraphs 28 and McGill University Health Centre v. Syndicat des employes de 11l0pital general de Montreal, 2007 SCC 4 Cited in paragraph Miazga v. Kvello Estate 2009 SCC 51

46 43 Cited in paragraph Nova Scotia (Workers' Compensation Board) v. O'Quinn (1997) 157 N.S.R. (2d) 282 Cited in paragraphs 55, 70 and Ontario Human Rights Commission v. Etobicoke [1982] 1 S.C.R. 202 Cited in paragraph Ontario Human Rights Commission v. Simpsons Sears Ltd. [1985] 2 S.C.R. 536 Cited in paragraph Parry Sound Social Services v. Ontario Public Service Employees Union 2003 SCC 42 Cited in paragraph Potter v. Nova Scotia (Securities Commission) 2006 NSCA 45 Cited in paragraphs 33 and Psychologist 'Y"v. Nova Scotia Board of Examiners in Psychology, 2005 NSCA 116 Cited in paragraphs 33, 35 and Quebec (Commission des droits de la personne et des droits de lajeunesse) v. Communaute urbaine de Montreal 2004 SCC 30 Cited in paragraphs 73 and Renaud v. Nova Scotia 2005 NSSC 226 Cited in paragraph Rogers, The Law of Canadian Municipal Corporations, (Second Edition) Carswell Publishing 2006 update, at pages Cited in paragraph Schwartz v. Canada [1996] 1 S.c.R. 254 Cited in paragraph Societe des Acadiaens du Noveau -Brunswick [1987] N.B.J. No. 544 Cited in paragraph Syndicat des employes de production du Quebec et de L'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.c.R. 879 Cited in paragraphs 29 and Tele-Communication Workers Union v. British Columbia Telephone Company, [1988] 2 S.C.R. 564 Cited in paragraph 31

47 Tokhasepyan v. Gower Decision No. 170/90 14 W.C.A.T.R. 282 Cited in paragraph Toronto (City) v. CUPE Local 79, 2003 SCC 63. Cited in paragraph Tranchemontagne v. Ontario (Director Disability Support) 2006 SCC 14 Cited in paragraphs 68 and University of British Columbia v. Berg [1993] 2 S.c.R. 353 Cited in paragraph Vriend v. Alberta [1998] S.C,J. 29 Cited in paragraph Yang v. British Columbia (Human Rights Tribunal), [2008] B.C,J. No Cited in paragraph 92

48 45 PART VII - STATUES Canadian Charter of Rights and Freedoms Section 1, 15 and 23 Nova Scotia Human Rights Act sections Sections 1,4,5,6,21,29,30, 32A, 33, 34, 35, 36 and 38 Nova Scotia Human Rights amendments 2007 Bill No. 16 Section 6 Nova Scotia Municipal Government Act Sections 1,2,64 and 530 Nova Scotia Municipal Government Act amendments 2006 Bill No.9 Sections 1 and 2 Nova Scotia Education Act Sections 3(1),4,5, 7, 11, 12, 13,64, 72, 73 and 76 Governor in Council Education Act Regulations Regulation O.LC , N.S. Reg. 74/97 section 34

49 46 The Constitution Act, 1982 The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 23. (1) Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province. (2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language. (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

50 47 la version francaise 1. La Charte canadienne des droits et libertes garantit les droits et libertes qui y sont enonces. TIs ne peuvent etre restreints que par une regie de droit, dans des limites qui soient raisonnables et dont la justification puisse se demontrer dans Ie cadre d'une societe libre et democratique. 15 (1) La loi ne fait acception de personne et s'applique egalement a tous, et tous ont droit a la meme protection et au meme benefice de la loi, independamment de toute discrimination, notamment des discriminations fondees sur la race, l'origine nationale ou ethnique, la couleur, la religion, Ie sexe, l'age ou les deficiences mentales ou physiques. (2) Le paragraphe (1) n'a pas pour effet d'interdire les lois, programmes ou activites destines a ameliorer la situation d'individus ou de groupes defavorises, notamment du fait de leur race, de leur origine nationale ou ethnique, de leur couleur, de leur religion, de leur sexe, de leur age ou de leurs deficiences mentales ou physiques. 23 (1) Les citoyens canadiens: a) dont la premiere langue apprise et encore comprise est celle de la minorite francophone ou anglophone de la province ou ils resident, b) qui ont re~u leur instruction, au niveau primaire, en fran~ais ou en anglais au Canada et qui resident dans une province ou la langue dans laquelle ils ont re~u cette instruction est celle de la minorite francophone ou anglophone de la province, ont, dans l'un ou l'autre cas, Ie droit d'y faire instruire leurs enfants, aux niveaux primaire et secondaire, dans cette langue. (2) Les citoyens canadiens dont un enfant a re~u ou re~oit son instruction, au niveau primaire ou secondaire, en fran~ais ou en anglais au Canada ont Ie droit de faire instruire tous leurs enfants, aux niveaux primaire et secondaire, dans la langue de cette instruction. (3) Le droit reconnu aux citoyens canadiens par les paragraphes (1) et (2) de faire instruire leurs enfants, aux niveaux primaire et secondaire, dans la langue de la minorite francophone ou anglophone d'une province: a) s'exerce partout dans la province ou Ie nombre des enfants des citoyens qui ont ce droit est suffisant pour justifier a leur endroit la prestation, sur les fonds publics, de l'instruction dans la langue de la minorite; b) comprend, lorsque Ie nombre de ces enfants Ie justifie, Ie droit de les faire instruire dans des etablissements d'enseignement de la minorite linguistique fmances sur les fonds publics.

51 48 Human Rights Act CHAPTER 214 OF THE REVISED STATUTES, 1989 amended 1991 NOTE - This electronic version of this statute is provided by the Office of the Legislative Counsel for your convenience and personal use only and may not be copied for the purpose of resale in this or any other form. Formatting of this electronic version may differ from the official, printed version. Where accuracy is critical, please consult official sources. An Act to Amend the Statute Law Relating to Human Rights Preamble repealed 1991, c. 12. Short title 1 This Act may be cited as the Human Rights Act. R.S., c. 214, s. 1. Meaning of discrimination 4 For the purpose of this Act, a person discriminates where the person makes a distinction, whether intentional or not, based on a characteristic, or perceived characteristic, referred to in clauses (h) to (v) of subsection (1) of Section 5 that has the effect of imposing burdens, obligations or disadvantages on an individual or a class of individuals not imposed upon others or which withholds or limits access to opportunities, benefits and advantages available to other individuals or classes of individuals in society. 1991, c. 12, s. 1. Prohibition of discrimination 5 (1) No person shall in respect of (a) the provision of or access to services or facilities; (b) accommodation; ( c) the purchase or sale of property; (d) employment; (e) volunteer public service; (f) a publication, broadcast or advertisement; (g) membership in a professional association, business or trade association, employers' organization or employees' organization,

52 49 discriminate against an individual or class of individuals on account of (h) age; (i) race; (j) colour; (k) religion; (I) creed; (m) sex; (n) sexual orientation; (0) physical disability or mental disability; (p) an irrational fear of contracting an illness or disease; (q) ethnic, national or aboriginal origin; (r) family status; (s) marital status; (t) source of income; (u) political belief, affiliation or activity; (v) that individual's association with another individual or class of individuals having characteristics referred to in clauses (h) to (u). (2) No person shall sexually harass an individual. (3) No person shall harass an individual or group with respect to a prohibited ground of discrimination. 1991, c. 12, s. 1; 2007, c. 41, s. 2. Exceptions 6 Subsection (1) of Section 5 does not apply (a) in respect of the provision of or access to services or facilities, to the conferring of a benefit on or the providing of a protection to youth or senior citizens; (b) in respect of accommodation, where the only premises rented consist of one room in a dwelling house the rest of which is occupied by the landlord or the landlords family and the landlord does not advertise the room for rental by sign, through any news media or listing with any housing, rental or tenants agency; (c) in respect of employment, to (i) a domestic employed and living in a single family home, (ii) an exclusively religious or ethnic organization or an agency of such an organization that is not operated for private profit and that is operated primarily to foster the welfare of a religious or ethnic group with respect to persons of the same religion or ethnic origin, as the case may be, with respect to a characteristic referred to in clauses (h) to (v) of subsection (1) of Section 5 if that characteristic is a reasonable occupational qualification, or (iii) employees engaged by an exclusively religious organization to perform religious duties; (d) in respect of volunteer public service, to an exclusively religious or ethnic organization that is not operated for private profit and that is operated primarily to foster the welfare of a religious or ethnic group with respect to persons of the same religion or ethnic origin, as the case may be; (e) where the nature and extent of the physical disability or mental disability reasonably precludes performance of a particular employment or activity;

53 50 (f) where a denial, refusal or other form of alleged discrimination is (i) based upon a bonafide qualification, or (ii) a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society; (g) to prevent, on account of age, the operation of a bonafide retirement or pension plan or the terms or conditions of a bona fide group or employee insurance plan; (h) to preclude a bonafide plan, scheme or practice of mandatory retirement; or (i) to preclude a law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or classes of individuals including those who are disadvantaged because of a characteristic referred to in clauses (h) to (v) of subsection (1) of Section , c. 12, s. 1. Act binds Crown 21 This Act binds Her Majesty in right of the Province and every servant and agent of Her Majesty. R.S., c. 214, s. 21. Procedure on complaint 29 (1) The Commission shall instruct the Director or some other officer to inquire into and endeavour to effect a settlement of any complaint of an alleged violation of this Act where (a) the person aggrieved makes a complaint in writing on a form prescribed by the Director; or (b) the Commission has reasonable grounds for believing that a complaint exists. Power of investigator of complaint 30 The Director or officer acting under the authority of the Commission in the investigation of a complaint or other process under this Act may (a) require any person to furnish any information or records that may be necessary to further the investigation or process; and (b) enter at all reasonable times the premises to which a complaint or other process refers. R.S., c. 214, s. 30. Board of inquiry 32A (1) The Commission may, at any stage after the filing of a complaint, appoint a board of inquiry to inquire into the complaint. Composition (2) A board of inquiry shall not be composed of more than three members. Eligibility for membership

54 51 (3) No member, officer or employee of the Commission, and no individual who has acted as an investigator in respect of the complaint in relation to which the board of inquiry is appointed, is eligible to be appointed to the board of inquiry. Remuneration and expenses (4) A member of a board of inquiry is entitled to be paid such renumeration and expenses for the performance of duties as a member of the board of inquiry as may be determined by the Governor in Council. Chair (5) Where a board of inquiry is composed of more than one member, the Commission shall designate one of the members to chair the board of inquiry. 1991, c. 12, s. 6. Parties to proceeding 33 The parties to a proceeding before a board of inquiry with respect to any complaint are (a) the Commission; (b) the person named in the complaint as the complainant; (c) any person named in the complaint and alleged to have been dealt with contrary to the provisions of this Act; (d) any person named in the complaint and alleged to have contravened this Act; and (e) any other person specified by the board upon such notice as the board may determine and after the person has been given an opportunity to be heard against joinder as a party. R.S., c. 214, s. 33. Hearing and powers 34 (1) A board of inquiry shall conduct a public hearing and has all the powers and privileges of a commissioner under the Public Inquiries Act. Restriction on communication (2) A member of a board of inquiry shall not communicate directly or indirectly in relation to the complaint, except regarding arrangements for a hearing, with any person or with any party or the party's representative unless all parties are given notice and an opportunity to participate, but the board may seek legal advice from an adviser independent from the parties and in such case the nature of the advice should be made known to the parties in order that they may make submissions as to the law. Right to be heard (3) A board of inquiry shall give full opportunity to all parties to present evidence and make representations.

55 52 Evidence (4) Oral evidence taken before a board of inquiry at a hearing shall be recorded and copies or a transcript thereof shall be furnished upon the same terms as in the Supreme Court. Settlement by agreement (5) Where the complaint referred to a board of inquiry is settled by agreement among allparties, the board shall report the terms of settlement in its decision with any comment the board deems appropriate. Where no settlement (6) Where the complaint referred to a board of inquiry is not settled by agreement among all parties the board shall continue its inquiry. Jurisdiction of board (7) A board of inquiry has jurisdiction and authority to determine any question of fact or law or both required to be decided in reaching a decision as to whether or not any person has contravened this Act or for the making of any order pursuant to such decision. Power of board (8) A board of inquiry may order any party who has contravened this Act to do any act or thing that constitutes full compliance with the Act and to rectify any injury caused to any person or class of persons or to make compensation therefor. Publication of decision (9) A board of inquiry shall file with the Commission the record of the proceedings, including the decision and any order of the board and the Commission may publish the decision and any order in any manner it considers appropriate. R.S., c. 214, s. 34. Privileged information 35 No member of the Commission, nor the Director or any officer or employee provided for in Section 27, shall be required by any board of inquiry or any court to give evidence, or to provide access to Commission records, relating to the information obtained in investigation of a complaint under this Act. R.S., c. 214, s. 35. Appeal

56 53 36 (1) Any party to a hearing before a board of inquiry may appeal from the decision or order of the board to the Appeal Division of the Supreme Court on a question of law in accordance with the rules of court. Record on appeal (2) Where notice of an appeal is served pursuant to this Section, the Commission shall forthwith file with the Supreme Court the record of the proceedings in which the decision or order appealed from was made and that record shall constitute the record on the appeal. Offence and penalty 38 Every person who does anything prohibited by this Act or who refuses or neglects to comply with any order made under this Act is guilty of an offence and is liable on summary conviction to (a) if an individual, a fine not exceeding five hundred dollars; and (b) if a person other than an individual, a fine not exceeding one thousand dollars. R.S., c. 214, s. 38.

57 54 BILL NO. 16 (as passed, with amendments) 2nd Session, 60th General Assembly Nova Scotia 56 Elizabeth II, 2007 Government Bill Human Rights Act (amended) CHAPTER 41 OF THE ACTS OF 2007 The Honourable Cecil P. Clarke Minister of Justice First Reading: November 26, 2007 (LINK TO BILL AS INTRODUCED) Second Reading: December 3, 2007 Third Reading: December 12,2007 (WITH COMMITTEE AMENDMENTS) Royal Assent: December 13,2007

58 55 An Act to Amend Chapter 2140f the Revised Statutes, 1989, the Human Rights Act Be it enacted by the Governor and Assembly as follows: 1 Section 3 of Chapter 214 of the Revised Statutes, 1989, the Human Rights Act, as enacted by Chapter 12 of the Acts of 1991, is amended by 6 Section 29 of Chapter 214 is amended by (a) adding "(1)" immediately after the Section number; (b) striking out "instruct the Director or some other officer to" in the first and second lines; and (c) adding the following subsections: (2) Any complaint must be made within twelve months of the date of the action or conduct complained of, or within twelve months of the last instance of the action or conduct if the action or conduct is ongoing. (3) Notwithstanding subsection (2), the Director may, in exceptional circumstances, grant a complainant an additional period of not more than twelve months to make a complaint if to do so would be in the public interest and, having regard to any prejudice to the complainant or the respondent, would be equitable. (4) The Commission or the Director may dismiss a complaint at any time if (a) the best interests of the individual or class of individuals on whose behalf the complaint was made will not be served by continuing with the complaint; (b) the complaint is without merit; (c) the complaint raises no significant issues of discrimination; (d) the substance of the complaint has been appropriately dealt with pursuant to another Act or proceeding; (e) the complaint is made in bad faith or for improper motives or is frivolous or vexatious; (f) there is no reasonable likelihood that an investigation will reveal evidence of a contravention of this Act; or (g) the complaint arises out of circumstances for which an exemption order has been made pursuant to Section 9.

59 56 Municipal Government Act CHAPTER 18 OF THE ACTS OF 1998 amended 2000, c. 9, ss , 39, 41-60; 2000, c. 28, s. 85;2001, c. 6, s. 119(1), (2), (4)-(8); 2001, c. 14, ss. 2, 3;2001, c. 35, ss. 2-28; 2002, c. 6, s. 56; 2002, c. 10, s. 22;2002, c. 36, ss. 1-3; 2003, c. 9, ss ; 2004, c. 4, s. 116;2004,c. 7,ss. 2-20;2004,c. 38,s. 26; 2004,c. 44; 2005,c. 22;2005, c. 9, ss ; 2005,c. 55; NOTE This electronic version of this statute is provided by the Office of the Legislative Counsel for your convenience and personal use only and may not be copied for the purpose of resale in this or any other form. Formatting of this electronic version may differ from the official, printed version. Where accuracy is critical, please consult official sources. An Act RespectingMunicipal Government WHEREAS the Province recognizes that municipalities have legislative authority and responsibility with respect to the matters dealt with in this Act; AND WHEREAS municipalities are a responsible order of government accountable to the people: Short title 1 This Act may be cited as the Municipal Government Act. 1998, c. 18, s. 1. Purpose of Act 2 The purpose of this Act is to (a) give broad authority to councils, including broad authority to pass by-laws, and to respect their right to govern municipalities in whatever ways the councils consider appropriate within the jurisdiction given to them; (b) enhance the ability of councils to respond to present and future issues in their municipalities; and (c) recognize that the functions of the municipality are to (i) provide good government, (ii) provide services, facilities and other things that, in the opinion of the council, are necessary or desirable for all or part of the municipality, and (iii) develop and maintain safe and viable communities. 1998, c. 18, s. 2. FINANCE Fiscal year 64 The fiscal year of a municipality begins on April 1 and ends on March 31 in the following ~ear. 1998,c. 18, s. 64.

60 57 Power to expend money 65 The council may expend money required by the municipality for (a) expenses of elections and plebiscites; (b) premiums on an insurance policy for damage to property, personal injury or liability, including liability of members of the councilor employees of the municipality, volunteer members of fire departments, emergency services providers and volunteers in municipal programs; (c) repayment of money borrowed by the municipality, the payment of interest on that money and payment of sinking funds; (d) police services; (e) providing an emergency response system; (f) snow and ice removal; (g) equipping and maintaining fire departments or emergency services providers; (h) honoraria and training expenses for volunteer firefighters and emergency services volunteers; (i) providing school crossing guards; (j) emergency measures; (k) recreational programs; (I) advertising the opportunities of the municipality for business, industrial and tourism purposes and encouraging tourist traffic, with power to make a grant to a nonprofit society for this purpose; (m) promotion and attraction of institutions, industries and businesses, the stabilization and expansion of employment opportunities and the economic development of the municipality; (n) lighting any part of the municipality; (0) public transportation services; (p) preventing or decreasing flooding; (q) collecting, removing, managing and disposing of solid waste; (r) salaries, remuneration and expenses of the mayor or warden, councillors, officers and employees of the municipality; (s) the reasonable expenses incurred by the mayor or warden or a councillor for attendance at meetings and conferences, if the permission of the council is obtained prior to the meeting or conference or the attendance is in accordance with a policy of the council; (t) the contribution of the municipality to a pension or superannuation fund; (u) where determined by the Board, payment to the Board of an assessment on a public utility owned or operated by the municipality; (v) annual subscription fees of the Union of Nova Scotia Municipalities and other municipal or professional associations; (w) public libraries; (x) lands and buildings required for a municipal purpose; (y) furnishing and equipping any municipal facility;

61 58 (z) acquisition of equipment, materials, vehicles, machinery, apparatus, implements and plant for a municipal purpose; (aa) streets, culverts, retaining walls, sidewalks, curbs and gutters; (aaa) private roads, culverts, retaining walls, sidewalks, curbs and gutters that are associated with private roads and are identified and approved for expenditure by the council; (ab) placing underground the wiring and other parts of a system for the supply or distribution of electricity, gas, steam or other source of energy or a telecommunications system; (ac) a system for the supply or distribution of electricity, gas, steam or other source of energy; (ad) pounds; (ae) a fire alarm system; (af) ponds, reservoirs, brooks, canals and other means of accumulating or directing the flow of water to be used in extinguishing fires; (ag) playgrounds, trails[,] including trails developed, operated or maintained pursuant to an agreement made under clause 59(c), bicycle paths, swimming pools, ice arenas and other recreational facilities; (ah) public grounds, squares, halls, museums, parks, tourist information centres and community centres; (ai) public markets; (aj) property held by trustees for the use of the public; (ak) wastewater facilities and stormwater systems; (al) water systems; (am) solid-waste management facilities; (an) buildings for a medical centre to encourage medical doctors, dentists and other health professionals to locate in the municipality or a part of it; (ao) industrial parks, incubator malls and land and other facilities for the encouragement of economic development; (ap) parking lots and parking structures; (aq) landing strips and airports; (ar) wharves and public landings; (as) carrying out an agreement with the Minister of Community Services, Canada Mortgage and Housing Corporation or a body corporate or agency made under clause 59(b); (at) contributing to a hospital to which the Hospitals Act applies, with power to raise the amount as an area rate in the area or areas primarily served by the hospital and to borrow for capital grants; (au) a grant or contribution to (i) a society within the meaning of the Children and Family Services Act, (ii) a mental health clinic in receipt of fmancial assistance from the Province, (iii) an exhibition held by an educational institution in the municipality, (iv) a club, association or exhibition within the meaning of the Agriculture and Marketing Act,

62 59 (v) any charitable, nursing, medical, athletic, educational, environmental, cultural, community, fraternal, recreational, religious, sporting or social organization within the Province, (va) a day care licensed under the Day Care Act, (vi) a registered Canadian charitable organization, and the municipality shall publish annually a list of the organizations and grants or contributions made pursuant to this clause in a newspaper circulating in the municipality; (av) all other expenditures (i) authorized by this Act or another Act of the Legislature, (ii) that are required to be made under a contract lawfully made by, or on behalf of, the municipality, (iii) incurred in the due execution of the duties, powers and responsibilities by law vested in, or imposed upon, the municipality, its mayor or warden, councilor officers. 1998, c. 18, s. 65~ 2001, c.35,s.5;2003,c.9,s.52;2004,c.7,s.4;2005,c.9,s.6. Funding of Halifax Regional School Board 530 (1) The council of the Halifax Regional Municipality shall provide to the Halifax Regional School Board at least the amount of additional funding that was provided to the Halifax District School Board in the fiscal year beginning April 1, 1995, to be used solely for the benefit of the area that was formerly the City of Halifax. (2) The guaranteed amount payable pursuant to subsection (1) shall be recovered by area rate levied on the assessed value of the taxable property and business occupancy assessments in the area that was formerly the City of Halifax. (3) The council of the Halifax Regional Municipality shall provide to the Halifax Regional School Board at least the amount of additional funding that was provided to the Dartmouth District School Board in the fiscal year beginning April 1, 1995, to be used solely for the benefit of the area that was formerly the City of Dartmouth. (4) The guaranteed amount payable pursuant to subsection (3) shall be recovered by area rate levied on the assessed value of the taxable property and business occupancy assessments in the area that was formerly the City of Dartmouth. ' (4A) The area rate referred to in subsections (2) and (4) may be different for commercial property and business occupancy assessments than for residential and resource property. (5) Subject to subsection (6), the amounts guaranteed pursuant to subsections (1) and (3) may not be decreased by more than ten per cent of the amounts specified in subsections (1) and (3), respectively, in any year, beginning in the fiscal year commencing April 1, (6) The council of the Halifax Regional Municipality and the Halifax Regional School Board may agree to reduce the amount of the guarantees at a faster rate than is permitted pursuant to subsection (5). (7) Funding provided pursuant to this Section is in addition to funding provided pursuant to the Education Act. 1998, c. 18, s. 530; 2005, c. 9, s. 15.

63 60 BILL NO. 9 (as passed) 1 st Session, 60th General Assembly Nova Scotia55 Elizabeth II, 2006 Government Bill Municipal Government Act (amended) CHAPTER 38 OF THE ACTS OF 2006 The Honourable Jamie Muir Minister of Service Nova Scotia and Municipal Relations First Reading: June 30,2006 (LINK TO BILL AS INTRODUCED) Second Reading: November 7,2006 Third Reading: November 23,2006 Royal Assent: November 23, 2006

64 61 An Act to Amend Chapter 180f the Acts of 1998,the Municipal Government Act Be it enacted by the Governor and Assembly as follows: 1 Chapter 18 of the Acts of 1998, the Municipal Government Act, is amended by adding immediately after Section 530 the following Sections: 530A (1) For the purpose of this Section, "student" means the students who are counted for purposes of calculating the "funding enrolment" under Section 1 of Schedule "A" of the Governor in Council Education Act Regulations made under Section 146 of the Education Act. (2) Where the council of the Halifax Regional Municipality provides additional funding to the Halifax Regional School Board under subsections 530(1) and (3), the council shall provide additional funding to the Conseil scolaire acadien provincial. (3) The additional funding for the Conseil scolaire acadien provincial must be (a) a share of the additional funding provided under subsections 530(1) and (3); or (b) an amount in addition to the amounts provided under subsections 530(1) and (3). (4) The Conseil scolaire acadien provincial's additional funding is determined by (a) in the case of clause 3(a), taking the additional funding provided under each of subsections 530(1) and (3), dividing those amounts, respectively, by the total number of students attending both the Conseil scolaire acadien provincial school and the Halifax Regional School Board school whose civic addresses are within each applicable area and multiplying the resulting amounts for each area by the number of students attending the Conseil scolaire acadien provincial school whose civic addresses are within in each area; and (b) in the case of clause 3(b), taking the additional funding provided under each of subsections 530(1) and (3), dividing those amounts, respectively, by the total number of students attending the Halifax Regional School Board school whose civic addresses are within each applicable area and multiplying the resulting amounts by the number of students attending the Conseil scolaire acadien provincial school whose civic addresses are within each area. (5) The additional funding for the Conseil scolaire acadien provincial must be recovered by (a) in the case of students attending the Conseil scolaire acadien provincial school whose civic addresses are within the area referred to in subsection 530(1), the area rate referred to in subsection 530(2); and (b) in the case of students attending the Conseil scolaire acadien provincial school whose civic addresses are within the area referred to in subsection 530(3), the area rate referred to in subsection 530(4). (6) The additional funding provided for the Conseil scolaire acadien provincial must be used solely for the benefit of schools in the Halifax Regional Municipality.

65 62 (7) The Minister may make regulations respecting the infonnation to be provided by the Halifax Regional School Board and the Conseil scolaire acadien provincial to the Halifax Regional Municipality. (8) The exercise by the Minister of the authority contained in subsection (7) is regulations within the meaning of the Regulations Act. 530B Where the council of the Halifax Regional Municipality provides additional funding to the Halifax Regional School Board other than under Section 530, the council shall provide additional funding to the Conseil scolaire acadien provincial in the same manner as is set out in subsections 530A(1) to (4). 2 This Act has effect on and after April 1, 2006, upon the Governor in Council so ordering and declaring by proclamation.

66 63 Education Act CHAPTER 1 OF THE ACTS OF amended 1998, c. 18, s. 555; 2000, c. II; 2002, c.5, 5S. 8-16: 2003, c. 9, S , 48; 2004, c. 3, ss ; 2004, c. 4, s. 110 ;2004, c. 6, SS. 3,4; 2005, c. 16; 2006, c. 27: 2007, c. 15; 2007, c. 37; 2008, c. 2, s. 4; 2008, c. 53, 5S. 1-4; 2008, c. 54, S5. 1-6,9-12; 2009, c. 11 [French version n la version fran~aisel NOTE -This electronic ve~ion of this statute is provided by the Office of the Legislative Counsel for your convenience and personal use only and may not be copied for the purpose of resale in this or any other form. Formatting of this electronic version may differ from the official, printed version. Where accuracy is critical, please consult official sources. An Act Respecting Education 3 (1) In this Act, (b) "Conseil acadien" means the Conseil scolaire acadien provincial established by this Act; (h) "entitled parent" means a parent who is a citizen of Canada and (i) whose first language learned and still understood is French, (ii) who received his or her primary school instruction in Canada in a French-first-Ianguage program, or (iii) of whom any child has received or is receiving primary or secondary school instruction in Canada in a French-first-Ianguage program; (i) "entitled person" means an entitled parent or a person who, not being an entitled parent, would be an entitled parent if the person were a parent; (k) "French-first-Ianguage program" means a school program in which the first language of instruction is French and in which the English language is taught, but does not include a Frenchimmersion program; (p) "Minister" means the Minister of Education; (s) "municipality" means a regional municipality, city, incorporated town or municipality of a county or district; Supervision of schools and education 4 The Minister has the general supervision of public schools and education in the Province , c. 1, s. 4.

67 64 PUBLIC SCHOOLS Free schools 5 (1) All public schools established or conducted pursuant to this Act are free schools. (2) Subject to this Act and the regulations and notwithstanding the Age of Majority Act, every person over the age of five years and under the age of twenty-one years has the right to attend a public school serving the school district or school region in which that person resides, as assigned by the school board. (3) A school board may, in accordance with the regulations, admit foreign students and, notwithstanding subsection (1), fees may be charged to such students as prescribed by the regulations , c. 1, s. 5. School regions and regional school boards 7 (1) The Governor in Council may designate a geographic area of the Province as a school region. (2) The Governor in Council may establish a regional school board to administer the public schools in a school region. (3) Each regional school board is a body corporate under the name determined by the Governor in Council. (4) The Governor in Council may alter the boundaries of a school region. (5) The Governor in Council may annex the whole or any part of a school district or school region to another school region. (6) Notwithstanding subsections (1) to (5), there shall be at least seven school boards , c. 1, s. 7. Establishment of Conseil 11 (1) The Governor in Council may establish a school board with jurisdiction throughout the Province, a body corporate to be known as the Conseil scolaire acadien provincial, for the purpose of providing a French-first-Ianguage program to the children of entitled parents. (2) The Conseil acadien is responsible for the delivery and administration of all French-firstlanguage programs. (3) A public school, or part of a public school, in which a French-first-Ianguage program is provided shall be known as an ecole acadienne. (4) Upon the establishment of the Conseil acadien, (a) every conseil d'ecole is dissolved; (b) the Conseil acadien becomes responsible for the control and management of every educational facility of a conseil d'ecole; (c) the assets and liabilities of the conseils d'ecole are vested in the Conseil acadien, including all employee benefits and entitlements; (d) the vesting of any assets of a conseil d'ecole in the Conseil acadien does not void any policy of insurance with respect to any of the assets, including any public liability policy, and the Conseil acadien is deemed to be the insured party for the purpose of such policy;

68 65 (e) the Conseil acadien is substituted for a dissolved conseil d'ecole with respect to any agreement to which the dissolved conseil d'ecole was a party; (f) all persons employed by a conseil d'ecole become employees of the Conseil acadien, the employment and seniority of each of the employees with the conseil d'ecole at the time of establishment of the Conseil acadien is deemed to be employment and seniority with the Conseil acadien and the continuity of employment and seniority is not broken; (g) the Conseil acadien is a successor employer for the purpose of the Pension Benefits Act; (h) the Conseil acadien shall continue to pay any pension or annuity, being paid by a conseil d'ecole, according to its terms; (i) notwithstanding clauses (c) and (f), Section 71 of the Labour Standards Code does not apply to a period of employment with a conseil d'ecole; and 0) Sections 9 and 10 apply mutatis mutandis , c. 1, s. 11. Entitlement to program 12 The children of an entitled parent are entitled to be provided a French-first-Ianguage program by the Conseil acadien if they otherwise have a right pursuant to this Act to attend a public school and if the numbers warrant the provision of the program out of public funds , c. 1, s. 12. Election of Conseil 13 (1) The Conseil acadien shall be elected by entitled persons, at the same time as the regularly scheduled elections for school boards. (2) An entitled person may vote in an election for the Conseil acadien or for another school board if that person is otherwise entitled to vote in an election for a school board but that person is not entitled to and shall not vote in the same election for both. (2A) For greater certainty, an entitled person who votes in an election for either the Conseil acadien or for another school board may vote for either the Conseil acadien or for another school board in a special election that follows the election. (3) Notwithstanding the Municipal Elections Act, (a) for greater certainty, only entitled persons may be members of the Conseil acadien; (b) only an entitled person may nominate a candidate for election as a member of the Conseil acadien and a person nominating such a candidate shall be required to sign a statement stating that person's status as an entitled person, in a form prescribed pursuant to the Municipal Elections Act; (c) a person applying to vote in an election for the Conseil acadien shall not be required to take an oath or make an affirmation attesting to that person's status as an entitled person but shall be required to confirm the person's status as an entitled person as defmed in the Education Act and, where a person wishes to provide the confirmation, the person may provide the confirmation by requesting the ballot to vote for the Conseil acadien and that request constitutes the confirmation; (d) where a person votes in an election for the Conseil acadien, that fact shall be entered in the poll book in the manner prescribed by or pursuant to the Municipal Elections Act; (e) for greater certainty, the Minister of Housing and Municipal Affairs may, pursuant to that Act, prescribe or alter any forms under that Act for the purpose of this Section; and