Between: NOVA SCOTIA COURT OF APPEAL Citation: Nova Scotia (Attorney General) v. MacLean, 2016 NSCA 69 Date: 20160919 Docket: CA No. 454541 Registry: Halifax The Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia (including the Minister of Community Services and the Minister of Health and Wellness) Appellant (Applicant) v. Beth MacLean, Olga Cain on behalf of Sheila Livingstone, Susan Lattie on behalf of Joseph Delaney, Disability Rights Coalition, J. Walter Thompson, Q.C., in his capacity as Nova Scotia Human Rights Board of Inquiry Chair, and The Nova Scotia Human Rights Commission Respondents Judge: Motion Heard: The Honourable Justice Joel E. Fichaud in chambers September 15, 2016, in Halifax, Nova Scotia Held: Partial stay of proceedings granted without costs; Counsel: Dorianne Mullin and Robyn Kennedy for the Appellant (Applicant) Attorney General of Nova Scotia Charlene Moore and Vincent Calderhead for the Respondents Beth MacLean, Olga Cain on behalf of Sheila Livingstone, and Susan Lattie on behalf of Joseph Delaney Claire McNeil and Donna Franey for the Respondent Disability Rights Coalition
Page 2 Reasons for judgment: Kymberly Franklin for the Nova Scotia Human Rights Commission J. Walter Thompson, Q.C. not appearing [1] The Attorney General holds the view that the Chair of a Board of Inquiry under the Human Rights Act has exhibited a reasonable apprehension of bias. The Chair declined to recuse himself. The Attorney General appealed that refusal and will ask this Court to disqualify the Chair. The Attorney General now moves to stay the Board s proceedings until the appeal is determined. The Respondents include the Complainants at the Board of Inquiry. The Respondents submit that the Chair s oversight of pre-hearing disclosure should continue. Background [2] On August 1, 2014, Ms. Beth MacLean, Ms. Olga Cain on behalf of Ms. Sheila Livingstone, Ms. Susan Lattie on behalf of Mr. Joseph Delaney (together the Individual Complainants ) and the Disability Rights Coalition ( Coalition ) filed a joint complaint ( Complaint ) under the Human Rights Act, R.S.N.S. 1989, c. 214, as amended. The Complaint named the Attorney General of Nova Scotia as Respondent to represent the Province. The Complaint alleged that the Provincial Departments of Community Services and Health and Wellness had discriminated against the Complainants contrary to ss. 5(1)(a), (o) and (t) of the Human Rights Act. Those provisions prohibit discrimination in the provision of or access to services or facilities based on either physical disability or mental disability or source of income. [3] The Individual Complainants are disabled persons in the Province s care. Ms. MacLean resides at the Nova Scotia Hospital in Halifax Regional Municipality, Ms. Livingstone in Yarmouth at an Adult Residential Centre, and Mr. Delaney in Lower Sackville at a facility known as Quest. They are free to leave and reside in the community, but their impecuniosity effectively blocks that option. [4] The Complainants allege that the Province has made a deliberate policy choice not to provide community housing for the disabled. They say that, unlike persons on social assistance, they are not given an option of assisted community housing. They submit that this distinction discriminates in the provision of a
Page 3 service or facility based on either disability or source of income. The chronologies of Ms. MacLean and the Coalition cite events back to the 1980s. [5] In May 2015, under s. 32A of the Human Rights Act, the Human Rights Commission ( Commission ) appointed a Board of Inquiry. The Respondent, Mr. J. Walter Thompson, Q.C., was named to chair the one-member Board. Sections 32A through 37 clothe boards of inquiry with quasi-judicial authority to conduct a contested hearing, hear evidence and issue a ruling, subject to an appeal in this Court on questions of law. [6] In August 2015, the Board convened with the parties counsel. The Complainants presented a list of requested disclosures. The hearing was scheduled for three weeks beginning in late February 2016. [7] In the months following, the parties differed on the scope of disclosure. In January 2016, the scheduled hearing dates were cancelled. The Board - i.e. Mr. Thompson - heard submissions on the requested disclosure. On March 15, 2016, the Board issued a written decision ( Disclosure Decision ) that dismissed as irrelevant some of the Complainants requests, and directed the Attorney General to disclose other items. [8] Neither the Complainants nor the Attorney General has appealed from the Disclosure Decision. The time limit for filing a notice of appeal to the Court of Appeal has expired. There has been no motion to extend the date for filing. [9] The Province assigned to a research and statistical officer the task of assembling the documents to be produced. That individual came across an exchange of correspondence from 2000 and 2001 between Mr. Thompson and the former Minister of Community Services, Mr. Peter Christie. At that time, Mr. Thompson had been a member of the Review Board, established under Part XX.1 (ss. 672.1 672.95) of the Criminal Code, that reviews the status of persons found unfit to stand trial because of mental disorder. [10] The correspondence included: On June 1, 2000, on his personal letterhead Mr. Thompson wrote to Minister Christie, copied to the Provincial Minister of Health: Dear Peter:
As you may know, the former government reappointed me to the Board of Review under the Criminal Code, albeit as a simple member rather than as chair as I had been for 15 years. I am pleased to be back and very impressed with the model for care which has evolved for forensic patients. I have seen miracles of rehabilitation. I do have a concern and I hope you will forgive me for writing you about it as an old friend of yours and the government s. Two cases have come before us recently where patients have continued to live at the Nova Scotia Hospital, because in one case a group home placement was not available, and because in another a supervised apartment was not available. I understand there is an embargo on new places. No one is being admitted unless someone leaves. This has produced a grid lock where scarcely anyone is moving anywhere. This situation is absurd. The Hospital is five times more expensive than a group home, and I guess the multiple would be more for a supervised apartment. There are other issues besides money, of course; the liberty of the subject, the safety of the public and good patient care. The patients subject to our jurisdiction are entitled under the Code to the least restrictive disposition. I am concerned that patients are required to live in the Hospital, not because it is legally warranted under the Code, but because established facilities are unavailable to them. I am also concerned that we may be driven to place people in the community without the care and supervision they really should have to protect the public. We can t hold people in the Hospital indefinitely. There may be times when we must discharge absolutely without the security of a transition. Good patient care also requires, for many patients, a supported transition to community living. In some cases, continued detention will be destructive. I do hope the government will very soon provide new places in order to save money, protect the rights of those whose liberty is restricted under the Code, and provide good patient care. Page 4 Minister Christie replied to Mr. Thompson with a letter of July 19, 2000. He explained the departmental review that was underway to assess and redesign the system of residential services for the frail, elderly and those with mental or physical disabilities. The Minister also said: I share your concern that the care, safety and supervision of residents in homes licensed and/or funded by the Department is paramount. On October 24, 2001, on his law firm s letterhead, Mr. Thompson again wrote to Minister Christie:
Masonview Homes has solicited my help more as an advocate than as a lawyer. Masonview Homes provides support to a total of fifteen clients residing in five units located in the Woodside, Dartmouth vicinity. One client is hearing-impaired, five are profoundly deaf. One profoundly deaf client resides at Masonview 4A; two reside at Masonview 4B; two at 7 Acadia, and the sixth client (hearing impaired) reside [sic] at 19 Provost. Two deaf clients are presently on the wait list. Presently, Nova Scotia only has two facilities that provide accomodations and support services to the deaf/mentally challenged. Northwest Manor, Halifax is one such facility (limited to the over-50 pop); Masonview Homes is the other. [The letter quotes from the Kendrick Report ] While Kendrick says many innovations would be quite challenging to implement, it would not be difficult at all to be innovative and provide a residence for this special group of deaf people. Masonview would be prepared, with the advice of their clientele, their families and other interested parties, to finance and construct this specialized home on the understanding that the cognitively and mentally disordered deaf in their care will transfer to it. This would add no expense to the Province, and is consistent with Kendrick s recommendation. We request the Department to approve the reallocation of six hearing impaired/deaf clients to the new facility and their replacement with suitable hearing impaired clients in Masonview s existing homes. Page 5 Minister Christie replied with a letter of November 14, 2001. The letter said there is a moratorium in place on the development of new small option facilities funded by the Department of Community Services, that Masonview was free to pay for a new facility and transfer its residents to that facility, but Masonview s existing units would be considered closed and this department would not [sic] longer place/fund residents in these settings. [11] Moving forward fifteen years, the Attorney General took the view that Mr. Thompson s two letters exhibited a reasonable apprehension of bias on issues that pertain to the current human rights complaint. The Attorney General moved that Mr. Thompson recuse from the human rights Board of Inquiry. [12] On July 18, 2016, Mr. Thompson issued a written Decision that dismissed the motion ( Recusal Decision ). The Recusal Decision analyzed the authorities on
bias, and concluded that there was no basis for the view that his earlier letters manifested a reasonable apprehension of bias on this human rights complaint. Page 6 [13] On August 17, 2016, the Attorney General appealed the Recusal Decision to the Court of Appeal. The grounds of appeal focus on whether Mr. Thompson s letters of June 1, 2000 and October 21, 2001 establish a reasonable apprehension of bias for the current Complaint under the Human Rights Act. [14] On September 1, 2016, the Attorney General filed a motion to schedule a hearing date for the appeal and to stay the proceedings before the Board of Inquiry pending the outcome of the appeal. [15] On September 15, 2016, I scheduled the hearing of the appeal for November 28, 2016. I will turn to the stay. Issue [16] Should there be a stay of the proceedings of the human rights Board of Inquiry until the Court of Appeal releases its decision on the Attorney General s appeal of the Recusal Decision? [17] Rule 90.41(2) says: Analysis (2) A judge of the Court of Appeal on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution and enforcement of any judgment appealed from or grant such other relief against such a judgment or order, on such terms as may be just. [emphasis added] [18] I am satisfied that the other relief mentioned by Rule 90.41(2) includes a stay of the proceedings before a tribunal whose decision is under appeal. Rule 90.41(8) says: (8) A stay of execution and enforcement stays other processes to enforce the order appealed from, other than the taxation of costs in the proceeding and the recording of the judgment in the Registry of Deeds, unless ordered otherwise by the Court of Appeal or a judge of the Court of Appeal. [emphasis added] Had Mr. Thompson recused, the proceeding before Mr. Thompson would have ended. Another chair would have been appointed. It follows that the other processes to enforce Mr. Thompson s decision not to recuse include the ongoing
Page 7 proceeding with Mr. Thompson as Chair. I am satisfied that I have the discretion to fully or partially stay the proceedings before Mr. Thompson. [19] Nova Scotia is not among the jurisdictions where a notice of appeal automatically stays the appealed order: Rule 90.41(1). Rather, the applicant has the onus to establish the prerequisites for a stay. [20] The prerequisites remain those stated by Justice Hallett in Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R. (2d) 341 (C.A.), paras. 28-30, under the former Rule 62.10(2). The stay applicant must show that either: (1) there is an arguable ground of appeal, and denial of the stay would cause him irreparable harm, and the balance of convenience favours the stay applicant; or (2) there are exceptional circumstances making it just that a stay be granted. [21] As to the primary test, an arguable ground of appeal is a realistic ground that, if established, could have sufficient substance to persuade a panel to allow the appeal. The motions judge is equipped with neither the record nor the submissions to undertake a deeper inquiry. Federated Life Insurance Company v. Fleet, 2008 NSCA 90, at para. 19; Wolfridge Farm Limited v. Bonang, 2014 NSCA 70, para. 22. [22] The Respondents do not contest that the grounds of appeal raise an arguable issue. [23] Mr. Thompson s letter of October 24, 2001 was written to advocate a client s proposal. Were that the only evidence, I would see no basis for a reasonable apprehension of bias in this human rights matter fifteen years later. But his letter of June 1, 2000 expresses personal views that meet the low threshold of the test for a stay. I accept there is an arguable issue. [24] Next are irreparable harm and balance of convenience. [25] A stay applicant must establish irreparable harm by evidence. General conclusory statements are insufficient. Wolfridge Farm, para. 33; Halifax (Regional Municipality) v. Casey, 2011 NSCA 69, para. 41; C.B. v. T.M., 2012 NSCA 75, para. 13; Sydney Steel Corporation v. MacQueen, 2012 NSCA 78, para. 20. [26] If the stay applicant does not establish irreparable harm, the stay is denied. If he establishes it, then that harm is balanced against the inconvenience to the
Page 8 respondents. The scale is not scientifically calibrated. Rather, the balance aims to achieve justice between the parties in the circumstances. I adopt Justice Cromwell s wisdom from Desrosiers v. MacPhail, 1998 NSCA 5: In considering a stay application, I think it is important to remember that a stay is a discretionary order. I mention this because I sense that counsel were parsing the numerous decisions on stay applications made by judges of this Court as if those decisions were detailed statutory provisions. The elaboration of principles to guide the exercise of this discretion is essential to ensure that the discretion is exercised judicially. However, general principles must not be treated as inflexible rules. Such an approach undermines the true objective of granting judges the discretionary power to grant a stay of execution: that is, to achieve justice as between the parties in the particular circumstances of their case. [27] The appeal will be heard on November 28, 2016. Likely a decision will issue by January 2017. I am projecting harm and inconvenience within a span of four months from today. The issues on this motion are: (1) whether, absent a stay, the unfolding process of the Board of Inquiry up to January 2017 would cause irreparable harm to the Attorney General in the event that the Court allows the appeal, and (2) if so, whether that harm outbalances the inconvenience to the Respondents from a stay, in the event that the Court dismisses the appeal. [28] Counsel for the Individual Respondents and, at the chambers hearing, counsel for the Coalition did not oppose a partial stay of the Board s merits hearing. They submit, however, that any stay should not inhibit the process for prehearing disclosure. [29] I agree with the Attorney General that a merits hearing before the Board of Inquiry, with Mr. Thompson as Chair, would cause irreparable harm in the event the Court of Appeal later rules that Mr. Thompson should have recused. The effort of the merits hearing would be wasted, the remedies sought by the Complainants are not simply retractable, the matter would have to be re-heard before another chair, and there is no avenue to compensate for waste and duplication. [30] The Respondents would suffer little, if any, inconvenience from a stay of the Board s merits hearing pending the Court of Appeal s decision. From the material filed for this motion, it appears that the process toward a merits hearing is snagged by a dispute between the parties whether the Attorney General has disclosed everything required by the Disclosure Decision. It is highly unlikely that this dispute would be resolved, and a three to four week merits hearing then be
scheduled and conducted before the release of the Court of Appeal s decision on this appeal. The balance of convenience favours the stay. Page 9 [31] I will stay the hearing of the merits of the Complaint before the Board of Inquiry, chaired by Mr. Thompson, until the release of the decision of the Court of Appeal on the Attorney General s appeal. [32] It remains to consider whether to stay the Board s process of pre-hearing disclosure. [33] Mr. Thompson s Disclosure Decision rejected some of the Respondents requests and granted others. Nobody has appealed the Disclosure Decision. The time for filing a notice of appeal has expired, and neither party has moved for an extension. [34] If the Attorney General s appeal is allowed, then Mr. Thompson will be replaced by another chair. But that will not release the Attorney General from disclosure of documents that are relevant to the Complaint. As the Disclosure Decision has not been appealed, I take the scope of that required disclosure to be as directed by the Disclosure Decision. Those items will be disclosable in any event of the appeal. At the chambers hearing, the counsel for both the Individual Complainants and the Coalition said that they seek no more than the Attorney General s compliance with the Disclosure Decision. [35] There is no irreparable harm to the Attorney General from the continuation of the processes of the Board, chaired by Mr. Thompson, to see that the Attorney General complies with the Disclosure Decision. The early resolution of any dispute about the application of the Disclosure Decision will benefit both parties by smoothing the path to the eventual merits hearing before whoever eventually chairs the Board of Inquiry. [36] Fulton s secondary test, of exceptional circumstances, does not support a stay of the Board s disclosure process. The secondary test is an outlet to ensure justice as between the parties, as Justice Cromwell termed it in Desrosiers, in circumstances that outlie the classic formulation based on irreparable harm: Brett v. Amica Material Lifestyles Inc., 2004 NSCA 93, para. 22; W. Eric Whebby Ltd. v. Doug Boehner Trucking & Excavating Ltd., 2006 NSCA 129, para. 11. Justice between the parties does not warrant the procrastination of relevant disclosure that will enable a proper hearing of the merits before the Board of Inquiry.
Page 10 [37] I deny a stay of the Board s processes, including those chaired or overseen by Mr. Thompson, respecting the resolution of any dispute whether or not the Attorney General has complied with the Disclosure Decision. [38] At the chambers hearing, the counsel for the Attorney General said that the disclosure to date has satisfied the Disclosure Decision, while counsel for the Individual Respondents and Coalition said it did not. Nothing in my reasons should be taken as expressing a view on that difference. That is an issue for the Board and, to be clear, that issue may be determined by Mr. Thompson as Chair. Conclusion [39] I dismiss the motion for a stay of any processes of the Board of Inquiry, chaired by Mr. Thompson, respecting the resolution of any dispute whether or not the Attorney General has complied with the Disclosure Decision. With that exception, I grant the motion for a stay of the proceedings before the Board of Inquiry until the Court of Appeal issues its order on the appeal. [40] The parties shall bear their own costs. Fichaud, J.A.