S(15) A person, employer or trade union shall not evict, discharge, suspend, expel or otherwise discriminate against a person because he or she has made a complaint or given evidence or helped in any way in respect of the initiation or prosecution of a complaint or other proceeding under this Act.
SYNOPSIS
Section 15, often referred to as the section prohibiting retaliation, prohibits persons, employers and unions from discriminating against those who have made a complaint or assisted in the initiation or prosecution of a complaint or other proceedings under the Code. Some large employers have internal anti discrimination and harassment policies. Section 15 does not extend a protection against retaliation to those who use these policies and suffer adverse consequences as a result.
ANNOTATIONS
Section 16In Gerin v. I.M.P. Group Ltd. (No. 2) (1996) 29 C.H.R.R. D.21 a Nova Scotia board of inquiry ruled that direct evidence of retaliation is not always necessary to prove a complaint under a provision similar to section 15, rather reasonable inferences of retaliation may suffice. The board confirmed that its task was to "... determine that the reason for any adverse or prejudicial treatment was to retaliate against someone for invoking rights under the Human Rights Code."
In VanBerkel v. MPI Security Ltd. (1996) 28 C.H.R.R. D.504 a British Columbia Council of Human Rights, the equivalent of a Newfoundland board of inquiry, ruled that a human rights respondent who threatened to sue a witness in a board hearing for libel, had breached the retaliation section of the B.C. legislation.
S(16) (1) The Human Rights Commission is continued.
(2) The Commission shall be composed of 3 or more members appointed by the Lieutenant-Governor in Council.
(3) The Lieutenant-Governor in Council shall designate 1 member as chairperson and another as vice-chairperson.
(4) Each member shall be appointed for a term of 5 years and shall hold office until his or her successor is appointed and may be reappointed for further terms of 5 years.
(5) The Lieutenant-Governor in Council may fill a vacancy in the membership of the Commission and that person shall be appointed to hold office for the remainder of the term of office of the member being replaced.
(6) The Lieutenant-Governor in Council may determine the remuneration for services and allowances for travelling and other expenses that shall be paid to members.
(7) A quorum of the Commission is a majority of the Commissioners or 3 Commissioners, whichever is the lesser.
(8) A decision of a quorum of the Commission is the decision of the Commission and in the event of an equality of votes on a matter, the chairperson or, in the absence of the chairperson, the vice-chairperson has a deciding vote.
SYNOPSIS
Section 16(1) provides that the Human Rights Commission is continued which means that the Commission, which was established under previous enactments of the Code, survives amendments and re-enactments of the legislation. The remaining subsections outline administrative matters dealing with the composition of the Commission, members’ terms of office and remuneration and the conduct of meetings.
The Commission currently has five members:
E. Jane House, B.A., M.Ed. (Counselling), M.Ed. (Deaf Education), (Chair)
Calvin Patey, B.A., B.A. (Ed.), M.Ed., (Vice Chair)
Elizabeth Calloway
Carol McDonald
Bert Riggs, B.A. (Hons.), B.Ed., Cert. Arch.
Section 17
S(17) (1) An executive director of the Commission and those officers and employees that are necessary for the purpose of administering this Act may be appointed in the manner established by law.
(2) The executive director of the Commission shall
(a) act as a registrar of complaints received and ensure that complaints are dealt with in accordance with this Act;
(b) be the chief executive officer and secretary to the Commission; and
(c) perform the duties and functions prescribed for him or her by this Act, by the Commission or by the regulations.
(3) The Lieutenant-Governor in Council may determine the remuneration for services and allowances for travelling and other expenses that shall be paid to the executive director and other officers and employees employed under subsection (1).
SYNOPSIS
Section 17(1) and (3) authorizes the appointment and remuneration of Commission staff. Section 17(2) outlines the duties of the executive director. The current staff of the Commission are:
Gladys Vivian, B.S.W. Executive Director
Barry Fleming, B.A., LL.B., M.B.A. Legal Counsel
Patricia Corbett, B.A. Human Rights Specialist
George Flaherty, B.Sc. Human Rights Specialist
Colleen Cooke Secretary
Colleen Murphy Secretary
Section 18
S(18) The Commission shall
(a) forward the principle that every person is equal in dignity and rights without regard to race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, sexual orientation, marital status, physical disability or mental disability;
(b) promote an understanding of, acceptance of and compliance with this Act;
(c) distribute information and develop and conduct educational programs and research designed to eliminate discriminatory practices related to race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, sexual orientation, marital status, physical disability or mental disability;
(d) advise and help government departments and agencies of the government and co-ordinate their activities where these activities concern human rights;
(e) advise the government on suggestions, recommendations and requests made by private organizations, groups and individuals where these suggestions, recommendations and requests concern human rights;
(f) co-operate with and help a person, an organization or a group concerned with human rights, whether within or outside the province;
(g) report as required by the minister on the business and activities of the Commission; and
(h) consider, investigate or administer a matter or activity referred to the Commission by the Lieutenant-Governor in Council or the minister.
SYNOPSIS
Section 18 of the Code outlines the mandate of the Commission. Generally, the Commission is required to promote human rights in the province, conduct education programs, advise government and other organizations and report as required on human rights issued.
ANNOTATIONS
In Saskatchewan Human Rights Commission v. Bell (1994) 21 C.H.R.R. D.147, the Saskatchewan Court of Appeal found that the Saskatchewan Human Rights Commission had standing to seek an injunction to prevent acts in violation of the Code because the Commission had, as part of its mandate, the power to "promote... compliance with, this Act", therefore the Commission would be an aggrieved person in circumstances in which it apprehended a violation of the Code. Section 35 of the Newfoundland Code specifically deals with the power of the Commission to seek an injunction.
Section 19
S(19) (1) On the application of a person the Commission may approve programs designed to prevent, reduce or eliminate disadvantages respecting services, facilities, accommodation or employment that may be or are suffered by a group of individuals where those disadvantages would be, or are based on or related to the race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, sexual orientation, marital status, physical disability or mental disability of members of that group or the age of that group.
(2) Before or after the Commission approves a program, the Commission may
(a) make inquiries concerning the program;
(b) vary the program;
(c) impose conditions on the program; or
(d) withdraw approval of the program
as it thinks appropriate.
(3) Nothing done in accordance with a program approved under this section is a violation of this Act.
SYNOPSIS
Section 19(1) permits the Commission to approve special programs to prevent, reduce or eliminate disadvantages experienced by persons characterized by the prohibited grounds of discrimination when those disadvantages are based on or related to a prohibited ground of discrimination. Section 19(2) gives the Commission broad discretion in reviewing for approval and monitoring programs submitted for its consideration. Section 19(3) provides that once a program has been approved anything done in accordance with the program is not contrary to protections outlined in the Code.
The effect of section 19 is to provide a defence to a claim of discrimination to persons who have successfully applied for a special program. A special program has been approved to permit the Women’s Enterprise Bureau to advertise for females only to assist women in dealing with gender barriers to starting their own businesses. As well, the Federation of Newfoundland Indians was granted, subject to specific conditions, a special program to hire only members of its organization.
Section 20
S(20) (1) A person who has reasonable grounds for believing that a person has contravened this Act may file with the executive director a complaint in a form acceptable to the Commission.
(2) A complaint made under subsection (1) shall be made within 6 months after the alleged contravention occurs or, in the case of a continuing contravention, within 6 months after the last incidence of the alleged contravention.
(3) Where a complaint is made by a person other than the person who it is alleged was dealt with contrary to this act, the executive director may refuse to act on the complaint unless the person alleged to be offended against consents.
SYNOPSIS
Section 20(1) states that a person who reasonably believes that a person has had his or her rights pursuant to the Code violated may file a complaint with the executive director in a form which the Commission has decided is acceptable.
Section 20(2) states that a person who wished to file a complaint with the Commission must do so within six months of the alleged breach of the Code. If the breach of the Code has been taking place over a period of time, the person must file the complaint within six months of the last incident of the alleged contravention.
Section 20(3) states that the executive director may refuse to act on a complaint if the person making the complaint is not the person who has had their rights violated unless the aggravated party consents to the complaint.
ANNOTATIONS
In Dawe v. Newfoundland Liquor Corporation (1998) 31 C.H.R.R. D.259, a board of inquiry considered the complaint of Mr. Dawe who applied for the position of Liquor Control Inspector with the respondent. He was interviewed in October 1994 but was never directly informed that he would not be considered for the position. In October 1995 he received a response to a Freedom of Information Act request in which he learned that he was not considered for the position because a former supervisor had advised officials of the respondent that Mr. Dawe had a bad back. Mr. Dawe filed a complaint in February 1996. The board of inquiry ruled that Mr. Dawe’s complaint was filed too late given the wording of section 20(2) of the Code. Mr. Dawe had argued that since he was not informed about the result of the job competition until October 1995 he had suffered a continuing contravention of the Code as contemplated by section 20(2) until that date. The board rejected that argument and stated that there had been only one breach of the Code and that occurred in the Fall of 1994 when the respondent excluded Mr. Dawe from the job competition because of concerns about his back. The board also rejected Mr. Dawe’s argument that the "discoverability rule" as formulated by the Court of Appeal in Snow v. Kashyap 1995 125 Nfld. & P.E.I.R. 182 should apply to section 20(2). The discoverability rule states that a time limit in a statute does not commence to run until a person discovers that he or she has a claim. The decision is under appeal.
In Re The Queen in Right of Manitoba and Manitoba Human Rights Commission et al (1983) 2 D.L.R. (4th) the Manitoba Court of Appeal outlined the test for determining a "continuing contravention" in the following terms:
To be a "continuing contravention" there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination which could be considered as separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects or consequences.
In Brooks v. Canada Safeway Ltd. (1985) 38 Man. R (2d) 192 the Manitoba Court of Queen’s Bench distinguished the previous decision. In Brooks three women filed complaints with the Manitoba Human Rights Commission alleging that Canada Safeway’s sickness policy, which excluded coverage for the seventeen weeks around delivery, was discriminatory because of sex and family status. A board of inquiry had ruled that one of the women’s complaint was statute barred because of the six month limitation period in the Code. The decision was appealed to the Manitoba Court of Queen’s Bench. The Court ruled that the complainant was entitled to file her complaint anytime during the currency of the seventeen week period excluded from the group sickness policy.
Section 21
S(21) (1) Where a complaint is filed with the executive director, the executive director or a person designated by the executive director shall investigate the complaint and try to settle the matter.
(2) Before an investigation is started under subsection (1), the executive director shall give notice of the complaint and of the start of an investigation of the complaint to the person against whom the complaint is made.
(3) Following an investigation, the executive director shall make a report to the Commission and the Commission may determine whether or not to refer the matter to a board of inquiry.
(4) Where the Commission declines to refer a complaint to a board of inquiry, the complainant may apply to the Trial Division for an order that the Commission refer the complaint to a board of inquiry.
SYNOPSIS
Section 21(1) provides that the executive director or the staff of the Commission must investigate a complaint and try to settle the matter once a complaint is accepted.
Section 21(2) states that prior to starting the investigation the executive director must give notice of the complaint and the fact the investigation is starting to those who are named in the complaint as allegedly violating the rights of the complainant.
Section 21(3) requires the executive director to make a report to the Commission after an investigation has been completed and the Commission then decides whether or not to refer the complaint to a board of inquiry.
Under section 21(4), if the Commission decides not to refer a complaint to a board of inquiry, a complainant can apply to the Supreme Court, Trial Division, for an order requiring the Commission to refer the matter to a board of inquiry.
Section 21(4) does not impose a time limit for a complainant to apply to the Trial Division for an order referring his or her complaint to a board of inquiry.
ANNOTATIONS
In Woolworth Canada Inc. v. Newfoundland (Human Rights Commission) (1995) 25 C.H.R.R. D.227, the Court of Appeal stated that the "... scheme of the Code is to try and effect settlement before the matter is referred to a Board of Inquiry. Even in the face of an adamant complainant, both parties must be consulted on the possibility of settlement and positions explored." The Court also stated that the Commission, in investigating complaints, must act with procedural fairness, and therefore making available Commission documents to the complainant, and not the respondent, breached that duty.
In Ewtushik v. Department of Health and Human Rights Commission (1988 unreported) the Newfoundland Supreme Court dismissed an application by Ms. Ewtushik seeking an order that the Court refer her complaint to a board of inquiry. Ms. Ewtushik based her application on six separate grounds including the fact the Commission did not give detailed reasons for its decision. The Court acknowledged that the reasons given by the Commission for dismissing Ms. Ewtushik’s complaint were brief, but concluded they were sufficient to alert her as to why the matter was not proceeding to a board of inquiry. The Court stated that on applications made under section 21(4), it had the jurisdiction by virtue of section 34(2) of the Judicature Act and Rule 29.10 of the Rules of the Supreme Court to refer a complaint back to the Commission to correct breaches of procedural fairness when appropriate. This comment is noteworthy because the wording of section 21(4) does not contemplate the Court referring complaints back to the Commission.
In Slattery v. Canada (Human Rights Commission) (1994) 20 C.H.R.R. D.205 the Federal Court Trial Division confirmed that human rights Commissions, when investigating a complaint, must act with procedural fairness, which includes informing the parties to a complaint of the substance of the evidence obtained during the investigation and giving them the opportunity to respond to same. The Court also stated that human rights Commissions must be neutral and thorough. A lack of thoroughness may be compensated for by the ability of the parties to make detailed responses to investigation reports.
In S.E.P.Q.A. v. Canada (Human Rights Commission) (1989) 11 C.H.R.R. D.1, the Supreme Court of Canada stated that the test to be applied by the Canadian Human Rights Commission in determining whether a complaint should be referred to a board of inquiry is whether "... there is a reasonable basis in the evidence for proceeding to the next stage."
In Rodgers v. British Columbia (Council of Human Rights) (1993) 21 C.H.R.R. D.67, the British Columbia Supreme Court stated the following with respect to a human rights Commission’s approach to determining whether a complaint based on circumstantial evidence should proceed to a board of inquiry:
Where there is no direct evidence of discrimination but the question is whether an inference of discrimination may be drawn from the evidence in the investigation report, then the Council may determine whether there is a reasonable basis in the evidence to go to the next stage by using the test developed by Huddard J. in Onischak, supra, that being whether the complainant’s case has been taken out of the realm of conjecture. In arriving at this conclusion, quite clearly the collective experience and common sense of the Council members will have to be brought into play.
Section 22
S(22) (1) The executive director and a person appointed or designated by the executive director may, at all reasonable times, so long as it is reasonably necessary to determine compliance with this Act, enter a building, factory, workshop or other premises or place in the province
(a) to inspect, audit and examine books of account, records and documents; or
(b) to inspect and view a work, material, machinery, an appliance or article found there,
and the persons occupying or in charge of that building, factory, workshop, premises or place shall
(c) answer all questions concerning those matters put to them; and
(d) produce for inspection the books of account, records, documents, material, machinery, appliance or article requested
by the executive director or a person appointed or designated by the executive director.
(2) Where the executive director or a person appointed or designated by the executive director believes on reasonable grounds that a person has contravened this Act or the regulations, the executive director or a person appointed or designated by the executive director may with a warrant issued under subsection (3) at a reasonable time enter the building, factory workshop, premises or place and may investigate, inquire into and examine the affairs of the person in respect of whom the investigation is being made and into books of account, records or documents in relation to that person.
(3) A Provincial Court judge or justice of the peace who is satisfied by information upon oath or affirmation that there are reasonable grounds for believing that there is in a building, factory, workshop, premises or place anything that there are reasonable grounds to believe will give evidence with respect to an offence under this Act may issue a warrant authorizing the executive director or a person appointed or designated by the executive director to enter and search those premises and to make those inquiries and copies of books of account, records or documents, that are necessary, subject to those conditions that may be specified in the warrant.
(4) The owner or person in charge of the premises referred to in this section and persons found there shall give the executive director or a person appointed or designated by the executive director and named in the warrant reasonable help to enable that person to carry out his or her duties and functions under this section and shall provide the information that that person may reasonably require.
SYNOPSIS
Section 22(1) outlines the power of the executive director and Commission staff to enter premises to inspect records and to ask questions during the investigation of a complaint. The Commission staff must enter at a reasonable time and the inquiry must be reasonably necessary for the investigation of the complaint.
If the Commission staff has reasonable grounds to believe that the Code has been contravened, they can obtain a warrant under subsection (3) and enter the premises of the person against whom the investigation is being made. Section 22(2) provides a legal mechanism to gain entry to a premises should a person not permit that entry as contemplated in section 22(1).
Section 22(3) states that the Commission staff can obtain a warrant from a Provincial Court judge or justice of the peace if they can swear an oath or affirmation outlining reasonable grounds for believing that there is evidence in a premises relevant to an offence under the Code.
Section 22(4) compels the owner or person in charge of the premises being served with the warrant discussed in subsections (3) and (4) to assist the Commission staff in performing their duties and functions.
See section 33 for a discussion about the term "offence".
Section 23
S(23) (1) Where the executive director, or a person designated by the executive director, effects a settlement of a complaint he or she shall report the settlement to the Commission.
(2) Where the report referred to in subsection (1) is approved by the Commission, the executive director shall notify the parties that no further action will be taken with regard to the complaint unless the terms of a settlement are not complied with.
(3) Where the terms of a settlement referred to in subsection (1) or (4) are not complied with, the Commission may reopen the complaint and proceed as if a settlement had not been effected.
(4) A complaint shall be considered settled for the purpose of this Act only if the Commission approves the settlement and agrees to its terms.
SYNOPSIS
Section 23(1) requires the Commission staff to report settlement of complaints to the Commission. Section 23(2) states that if the Commission approves the settlement referred to in subsection (1) the Commission staff must notify the parties that it will take no further action on the complaint unless the terms of the settlement are not fulfilled by the parties. If the parties do not fulfil the terms of the settlement agreement the Commission, pursuant to section 23(2), will reopen the complaint and proceed as if a settlement had not been reached. Section 23(4) states that a settlement under the Code can only be reached if the Commission agrees to the terms of the settlement.
Section 24
S(24) Where the Commission refers a matter to a board of inquiry under subsection 21(3) or where a judge of the Trial Division orders the Commission to refer a matter to a board of inquiry under subsection 21(4), the chairperson of the Commission shall refer the matter to the chief adjudicator of the panel appointed under section 25 who shall hear the matter or refer it to another panel member.
SYNOPSIS
Section 24 outlines the procedure for appointing a board of inquiry. If the Commission, or a judge of the Trial Division refers a complaint to a board of inquiry the chair of the Commission shall refer the matter to the chief adjudicator. The process outlined in section 24 is integral to ensuring the institutional independence of boards of inquiry. The Commission is a party before a board of inquiry but it does not have the opportunity to pick particular individuals to be boards of inquiry. That task is left to the chief adjudicator who is independent of the Commission.
Section 25
S(25) (1) The Lieutenant-Governor in Council shall on the recommendation of the minister appoint a panel of persons to act as members of boards of inquiry.
(2) A panel appointed under subsection (1) shall consist of at least 6 persons, 1 of whom shall be appointed by the Lieutenant-Governor in Council as chief adjudicator.
(3) The members of a panel appointed under this section shall not be members of the Commission.
(4) Members of the panel shall be appointed for a term of 3 years and are eligible for reappointment.
(5) A member of the panel may be removed from the panel by order of the Lieutenant-Governor in Council on recommendation of the minister where the minister is satisfied that there is reason for the removal.
(6) The Lieutenant-Governor in Council may determine the rate of remuneration of the members of the panel.
SYNOPSIS
Section 25 establishes a panel of adjudicators to act as boards of inquiry. The provisions of this section help maintain the independence of the boards of inquiry from the Commission. Subsection (1) states that the Lieutenant-Governor in Council, that is, the Cabinet, shall appoint the panel of adjudicators on the recommendation of the Minister of Justice. There are at least six panel members, none of whom shall be members of the Commission. A term of office for panel members is 3 years except where a member is seized with a matter, in which case the panel members can complete that particular matter after the expiration of their term. (See section 28.1) The Lieutenant-Governor in Council determines the rate of pay of panel members and may remove a member on the recommendation of the Minister of Justice if the Minister is satisfied there is reason for the removal.
The following are the current members of the adjudication panel:
Mary O’Brien Chief Adjudicator
Gillian Butler, Q.C. Member
Valerie Marshall Member
Maeve Baird Member
Kelvin Parsons Member
Elizabeth Heneghan, Q.C. Member
Glen Picco Member
Section 26
S(26) (1) The parties to a proceeding before a board of inquiry with respect to a complaint are
(a) the Commission, which shall have the carriage of the complaint;
(b) the person named in the complaint as the complainant;
(c) a person named in the complaint who is alleged to have been dealt with contrary to this Act;
(d) a person named in the complaint who is alleged to have contravened this Act; and
(e) a person specified by the board, upon notice, and after that person has been given an opportunity to be heard against his or her joinder as a party.
(2) A copy of the complaint shall be annexed to the notice of the hearing that is given to a party other than the Commission.
SYNOPSIS
Section 26 outlines who should be present at a board of inquiry. The Commission is a party to the proceedings and has carriage of the complaint which means the Commission is ultimately responsible for tendering evidence and making legal arguments with respect to the complaint. In addition to the Commission, the complainant and all respondents are parties to the proceedings. The board of inquiry has the authority to add additional persons as parties if it gives these persons proper notice and an opportunity to make arguments concerning whether they should be a party to the proceedings.
All parties to the proceedings have the right to be represented by lawyers. While complainants often rely upon the Commission lawyer to present evidence and make legal arguments, they can be represented by their own lawyer.
Subsection 26(2) states that a copy of the complaint shall be given to each party to the board of inquiry except the Commission. Indeed, by the time a complaint is to be heard by a board of inquiry it has been the practice of the Commission to forward to all parties not only the complaint form and investigation report, but, where practical, a copy of the entire file. While parties to the proceedings may have this information, the board of inquiry only receives the complaint form, thus requiring all relevant evidence to be presented before it.
Section 27
S(27) (1) A board of inquiry has the powers of a Commissioner appointed under the Public Inquiries Act.
(2) A board of inquiry shall inquire into the matters referred to it and give full opportunity to all parties to present evidence and make representations, through counsel or otherwise.
SYNOPSIS
Section 27(1) states that a board of inquiry has the powers of a Commission appointed under the Public Inquiries Act. The board has to give all parties the right to present evidence and make arguments and must hear the complaint without undue delay.
Section 3 of the Public Inquiries Act outlines the powers of a Commissioner. It states:
3 (1) The Commissioner or Commissioners shall have the same power to enforce the attendance of witnesses and to compel them to give evidence that is vested in a court of law in civil cases; and a false statement made by the witness on oath or affirmation shall be an offence punishable in the same manner as perjury.
(2) A witness shall not be excused from answering a question upon the ground that the answer to the question may tend to criminate the witness, or may tend to establish his or her liability to a civil proceeding at the instance of the Crown or of a person.
(3) Where a witness objects to answer upon the ground that the answer may tend to criminate him or her or may tend to establish his or her liability to a civil proceeding at the instance of the Crown or of a person, and where but for this Act or the Canada Evidence Act the witness would have been excused from answering the question and although the witness is because of this Act or the Canada Evidence Act compelled to answer the answer so given shall not be used or receivable in evidence against the witness in a criminal proceeding taking place later, other than a prosecution for perjury in the giving of the evidence.
ANNOTATIONS
In Human Rights Commission v. Department of Health et al (1998) 31 C.H.R.R. D.405, the Newfoundland Court of Appeal stated that section 27(2) "... is nothing more than a legislative mandate of one of the basic requirements of procedural fairness - according each party the opportunity to be heard... [it] cannot be interpreted as prohibiting certain issues from being heard separately - provided of course, the opportunity to present evidence and make representations in respect of that issue is offered to each party." The Court of Appeal held that a board had the discretion to hear preliminary objections to its jurisdiction, that is, its authority to proceed with the matter.
Section 28
S(28) (1) A board of inquiry
(a) shall, where it finds that a complaint is not justified, order that the complaint be dismissed; and
(b) may, where it finds that a complaint is justified in whole or in part, order the person against whom the finding was made to do 1 or more of the following:
(i) to stop the contravention complained of,
(ii) to refrain in future from committing the same or a similar contravention,
(iii) to make available to the person discriminated against the rights, opportunities or privileges he or she was denied contrary to this Act,
(iv) to provide compensation to the person discriminated against, including compensation for all or a part of wages or income lost or expenses incurred because of the discriminatory action, and
(v) to take whatever other action the board considers appropriate.
(2) A board of inquiry may make whatever order as to costs that it considers appropriate.
(3) An order of a board of inquiry shall be binding on all parties.
(4) An order or decision of a board of inquiry shall be made in writing, together with a written statement of the reasons for the order or decision and copies of them shall be provided to the parties.
SYNOPSIS
Section 28(1) states that a board of inquiry can dismiss a complaint if it finds that the complaint is not justified. The board has broad remedial powers if it finds that a complaint is justified including taking whatever action the board considers appropriate. The board can make whatever order considering the payment of costs to successful parties that it considers appropriate. The order of the board is to be made in writing and accompanied by written reasons for the order. The order is binding upon all parties.
ANNOTATIONS
In Hanlon & Lewis v. Department of Justice (1994) 1993 St. J. No. 5196 (unreported) the Newfoundland Supreme Court stated as follows with respect to whether human rights complainants can recover general damages:
Consistent with the spirit of human rights legislation, "compensation" must also include damages for imponderable or intangible things for which there is no monetary equivalent. In cases of discrimination in relation to employment there can be a wide range of emotions that can affect the discriminated person. These emotions can include embarrassment, frustration, anger, rejection and depression. An employer’s discriminatory practice could also affect a person’s self-esteem and confidence. These intangible consequences of discrimination may conveniently be called "emotional damages".
Section 28.1
S28.1 (1) Where a board of inquiry has begun to consider, review, hear and decide upon a matter that has been referred to it, and appointment of a member expires before he or she gives a decision, the appointment of that member shall, for the purpose of deciding upon that matter, be considered to have been extended and the member continues to have all the power conferred by this Act to consider, review, hear and decide upon that matter.
(2) Subsection (1) applies to extend the appointment of a member of a board of inquiry whose appointment may have expired before this section comes into force as well as to the extension of the appointment of a member whose appointment expires after this section comes into force.
SYNOPSIS
Section 28.1(1) states that irrespective of the fact that, by virtue of section 25(4), persons are appointed to a panel of adjudicators for a three year period, they can finish a specific board of inquiry despite the expiration of their term. This section means that a board of inquiry does not have to be concerned when its adjudicator’s term expires before it finishes hearing a complaint and makes its ruling.
Section 28.1(2) states that section 28.1(1) applies to boards of inquiry which may have had their terms expire prior to the enactment of this section. Section 28.1 came into force in June 1998.
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