Aylward v. Nova Scotia (Human Rights Commission)

Aylward v. Nova Scotia (Human Rights Commission) Court Court of Appeal Date 2002-05-30 Citation 2002 NSCA 76 Docket CA 170451 Judge/Registrar/Adjudicator Glube, Constance R. (Honourable Chief Justice) (CA); Hallett, J. Doane (Honourable Justice) (CA); Freeman, Gerald B. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Aylward v. Nova Scotia (Human Rights Commission) - 2002 NSCA 76 - 2002-05-30 - Library Sheet Decision Content Date: 20020530 Docket: CA 170451 NOVA SCOTIA COURT OF APPEAL [Cite as: Aylward v. Nova Scotia (Human Rights Commission), 2002 NSCA 76] Glube, C.J.N.S.; Hallett and Freeman, JJ.A. BETWEEN: CAROL AYLWARD Appellant - and - THE NOVA SCOTIA HUMAN RIGHTS COMMISSION, JAMES COWAN, CHAIR OF THE BOARD OF GOVERNORS OF DALHOUSIE UNIVERSITY; TOM TRAVES, PRESIDENT OF DALHOUSIE UNIVERSITY; and DAWN RUSSELL, DEAN, FACULTY OF LAW, DALHOUSIE UNIVERSITY Respondents - and - VAUGHAN BLACK, H. ARCHIBALD KAISER, DIANNE POTHIER, THE ATTORNEY GENERAL OF THE PROVINCE OF NOVA SCOTIA, WAYNE MacKAY, RICHARD DEVLIN and PROFESSOR RICHARD EVANS Respondents/Interested Parties REASONS FOR JUDGMENT Counsel: Martin Doane for the appellant Michael J. Wood Q.C. for the respondent Human Rights Commission Eric B. Durnford, Q.C. for the respondents, Cowan, Traves and Russell John C. MacPherson, Q.C. for respondents/interested parties Black, Kaiser and Pothier B. Lynn Reierson for the respondents/interested parties MacKay and Devlin Raymond S. Riddell, Q.C. for the interested party Evans Edward A. Gores for the Attorney General of Nova Scotia Peter W. Kidston for the respondent Ombudsman not appearing Appeal Heard: April 3, 2002 Judgment Delivered: May 30, 2002 THE COURT: Appeal dismissed per reasons for judgment of Hallett, J.A.; Glube, C.J.N.S. and Freeman, J.A. concurring. HALLETT, J.A.: [1] The issue on this appeal is whether the Nova Scotia Human Rights Commission had the authority, either expressed or implied, to delegate to the Nova Scotia Ombudsman, in the manner done, its authority to inquire into a prospective complaint by the appellant Professor Aylward that the Chairman of Dalhousie University, its President, the Dean of the Law School (the Dalhousie respondents) and others, including professors at the Law School, discriminated against her with respect to employment on account of her race and gender. [2] Professor Aylward is a black woman who taught at the Law School. The matters giving rise to this appeal have had an excessively long and costly history all of which need not be recited in this decision. The Commission’s involvement began when Professor Aylward wrote the Executive Director of the Commission on August 26th, 1999, as follows: Dear Ms. Francis: I wish to file a discrimination complaint based on race against the Dalhousie Board of Governors, the President of Dalhousie University, Tom Traves, the Dean of Dalhousie Law School, Dawn Russell, and various members of the Dalhousie Law School Faculty including the following: Vaughan Black, Archie Kaiser, Dianne Pothier, Wayne McKay, and Richard Devlin. I am writing to you because this complaint raises unique issues of possible conflicts for the Nova Scotia Human Rights Commission. Namely, I was a Commissioner for the Human Rights Commission for three years. Wayne McKay, one of the respondents, was the Executive Director of the Nova Scotia Human Rights Commission for four years. All of the respondents from the Law School are members of the Nova Scotia legal community; and you and I are acquainted as a result of your past employment as Employment Equity Officer at Dalhousie University. Additionally, most of the persons acting as Boards of Inquiry for the Nova Scotia Human Rights Commission are either associated with Dalhousie Law School, Dalhousie University, and/or are members of the Nova Scotia Bar. Indeed, the legal counsel for the Commission is a past employee of Dalhousie University/Law School, a member of the Nova Scotia Bar, and is still associated with the Law School in the capacity of supervisor to Law Students at the Commission. Consequently, I do not believe that the Nova Scotia Human Rights Commission (or for that matter a Human Rights Commission in the Atlantic region) can process this complaint for the reasons mentioned above. Nor do I believe that a Board of Inquiry, either in the Province of Nova Scotia, or in the Atlantic region, can hear this complaint. Therefore, I am requesting that the entire complaint, from intake to investigation, to hearing (if applicable), be handled by a Human Rights Commission outside the Atlantic region; or alternatively, that the Director of the Nova Scotia Human Rights Commission arrange for some other appropriate independent body to handle the complaint. I look forward to your decision regarding this matter and thank you in advance for your consideration. [3] Then followed correspondence between the Executive Director of the Commission and Professor Aylward relating to this request. [4] On September 29th, 1999, the Executive Director of the Commission wrote Professor Aylward as follows: This is to acknowledge receipt of your letter dated September 29, 1999 and received in this office on September 24, 1999. Based upon the additional information you provided supporting your request that “the entire complaint from Intake to investigation, to hearing (if applicable), be handled by a Human Rights Commission outside the Atlantic Region, or alternatively, that the Director of the Nova Scotia Human Rights Commission arrange for some other appropriate independent body to handle the complaint” ... I have referred your matter to the Office of the Ombudsman to act as trustee in this matter. The Ombudsman’s office will determine the independent body to investigate your complaint. His office will contact you in due course. Subsequently, any further correspondence or contact should be made directly to the Office of the Ombudsman. I would like to take this opportunity to thank you for your patience and cooperation in providing us with additional information. (Underlining added) [5] On the same date, September 29th, 1999, the Executive Director wrote to the Nova Scotia Ombudsman as follows: Pursuant to your meeting with our legal counsel, Maureen Shebib, on September 15, 1999 to discuss policy referral of Human Rights complaints made against the Commission or the potential of a conflict of interest involving the Commission, to the Office of the Ombudsman, I am referring herewith three complaints for your attention. Two of the complaints are against the Commission. One alleges discrimination in the hiring and recruitment process for the position of Executive Director for the Nova Scotia Human Rights Commission and in the complainant’s letter of September 21, 1999, “in particular the aspect that the Mi’Kmaq are almost 100% excluded ...”. The second matter concerns the manner in which appointments to the Commission are made, and the third, the complainant requests that the Commission not handle their complaint because of the potential for conflict of interest and perception of bias. I have notified the complainant in items two and three above that their complaints have been referred to your office as trustee and that you will be in touch with them directly with regard to the process for handling their complaints under your trusteeship. I will await word from you on item one because of the potential for conflict of interest and/or perception of bias by your office itself, since you were part of the hiring panel for the Executive Director position. If you have any questions or concerns, please not hesitate to call me at 424-4622. (Underlining added) [6] Item three referred to in this letter relates to the complaint of Professor Aylward. These letters evidence the intention of the Commission, because of the possible perception of bias, to refer Professor Aylward’s complaint, which had not yet been put in writing, to the Ombudsman as trustee and that as such trustee, the Ombudsman would “determine the independent body to investigate” the complaint and that Professor Aylward should deal directly with the Ombudsman with regard to the process for handling the complaint. The letters and subsequent events show that this intention was given effect. [7] The Ombudsman then entered into discussions with the Ontario Human Rights Commission to have that Commission deal with Professor Aylward’s complaint. [8] On February 29th, 2000, the Ombudsman wrote the Executive Director of the Commission stating that in principle, the Ontario Human Rights Commission had agreed to investigate Professor Aylward’s complaint against Dalhousie. [9] On March 8th, 2000, Brian C. Crocker, Q.C., legal counsel for Dalhousie University, wrote to the Executive Director of the Commission, as follows: RE: Professor Carol Aylward We are dealing with an internal matter involving Professor Carol Aylward of the Faculty of Law and have received a letter from Mr. Burnley A. Jones, Barrister and Solicitor who states the following with respect to Professor Aylward: “In a related matter, I am aware that a Human Rights Complaint is before the Nova Scotia Human Rights Commission. The Complaint has been referred to the Office of the Ombudsman to arrange for an appropriate independent body from outside the Atlantic Region to investigate the Complaint.” We have previously been advised that Professor Aylward has filed a complaint against Dalhousie University with the Nova Scotia Human Rights Commission but we are unaware that any such complaint has been initiated. Could you please advise me whether the Nova Scotia Human Rights Commission is in receipt of a complaint against Dalhousie University from Professor Aylward and, if so, the status thereof. For future reference, it would be appreciated if you would forward copies of all future complaints against Dalhousie University to my attention. (Underlining added) [10] On April 3rd, 2000, Professor Aylward’s counsel, at that time B.A. “Rocky” Jones wrote the Ontario Human Rights Commission forwarding Professor Aylward’s complaint. The complaint named as respondents the Board of Governors of Dalhousie University, the Dalhousie Faculty of Law, individual respondents Tom Traves, the President, Dawn Russell, the Dean of the Law School, and six other professors at the Law School. The complaint set out that she was complaining about the terms or conditions of her employment. Paragraph 5 of the complaint form sets out specific dates of incidents of discrimination in employment and further states: ... there have been sustained and recurring patterns of direct, adverse effect and systemic discrimination affecting myself, other racial minority Faculty and Students and Racial Minority Applicants for both Faculty and Student positions at Dalhousie Law School ... As a result, I have had to work in an intensely discriminatory environment for nine years, including differential treatment in many contexts and cumulating (sic) in a false allegation in the course of my tenure and promotions proceedings which resulted in denial of my promotion to Associate Professor, which is normally awarded with tenure as a matter of course. Subsequent to my expressed intention to bring a Human Rights Complaint and a grievance with respect to these matters, I have experienced retaliation and a refusal to accommodate the cumulative effects of this discrimination contrary to Section 11 of the Nova Scotia Human Rights Act. See enclosed documentation for further details. [11] Paragraph 6 of the complaint form provides as follows: 6. Based on the facts you outlined in 5(a) above, please explain why you believe the above incidents amount to discrimination under the Code. [12] Professor Aylward stated in response to this question: Differential treatment on the basis of the specified grounds resulting in direct, adverse effect, systemic discrimination and poisoned environment and retaliation constitute violations of the Nova Scotia Human Rights Act. [13] One cannot determine from the evidence whether this complaint form is that established pursuant to the Nova Scotia Human Rights Act or the form used by the Ontario Human Rights Commission. [14] On June 1st, 2000, the Governor in Council of Nova Scotia by Order-in-Council 2000-288 made a regulation (the Delegation Regulation) granting the Commission authority to delegate certain powers and duties. Section 3(1) provided: 3(1) The Commission, may, by written agreement entered into with the Ombudsman, another statutory human rights agency or a private organization, delegate to the Ombudsman, another statutory human rights agency, or private organization the authority to exercise or perform some or all of the Commission’s powers, duties and functions under the Act including endeavouring to effect a settlement, investigating and appointing boards of inquiry in relation to a complaint where in the opinion of the Commission, the Commission would be subject to a reasonable apprehension of bias or conflict of interest if it were to investigate the complaint. [15] As a consequence, on August 14th, 2000, Professor Aylward filed a fresh complaint with the Ontario Human Rights Commission. She added as parties to those named in her prior complaint filed with the Ontario Human Rights Commission, the Dalhousie Faculty Association, its officers and members of its executive committee. [16] As a result, on August 16th, 2000, the Ontario Human Rights Commission wrote Dean Russell of the Dalhousie Law School as follows: By order in Council of the Province of Nova Scotia dated June 1, 2000, the Nova Scotia Human Rights Commission, by written agreement entered into with the Ombudsman, Nova Scotia, has delegated to the Ontario Human Rights Commission, the authority to exercise or perform some or all of the Commission’s powers, duties and functions under the Nova Scotia Human Rights Act, including endeavouring to effect a settlement and investigate the complaint filed by the above-noted Complainant. Carol Aylward has filed a complaint under the Nova Scotia Human Rights Act alleging that Dalhousie University and Dalhousie University Law School and others, have discriminated against her on the basis of race, sex, and reprisal. Enclosed is a complaint form and the Complainant’s statement outlining the particulars of the complaint. For the sake of this complaint, the Ontario Human Rights Commission has not made a determination on the merits of these allegations. Rather, our role is to carryout an impartial investigation of the allegations. The investigation process is further outlined in the attached the Nova Scotia Human Rights Commission Guide to the Complaint Process and the Nova Scotia Human Rights Act. In keeping with the requirement to endeavour to effect a settlement, we wish to offer our services to mediate this matter based on the guidelines of the Ontario Human Rights Commission process. Mediation is a process offered at the beginning of the complaint process which allows parties an opportunity to resolve the complaint without going through the time and expense of a full investigation. The Commission’s Mediation Officers will facilitate a process wherein the parties to a complaint can create options for resolving the complaint. Mediation is voluntary. If you are interested in attempting to settle though mediation, please indicate so in your response or contact the Commission within ten days. A copy of the Ontario Human Rights Commission Guide to Mediation Services is attached, for your information. Should you be willing to participate in mediation, I would ask that you read the Mediation Agreement included in your package, sign the agreement and return it with your response to the allegations. Should you decide to proceed to investigation, please submit a response to the allegations within 30 days of the date of this letter. It is important to provide as much detail as you are able to as this information will be used to decide whether or not the matter should proceed further. Upon receipt of your response, an investigator will be appointed. The information which you provide will be shared with the Complainant who has 15 days from receipt to submit a rebuttal, a copy of which will be sent to you. Your co-operation in this matter is appreciated. (Underlining added) [17] I would note that there is no written agreement between the Commission and the Ombudsman as asserted in the first paragraph of this letter. A review of the letter to Dean Russell indicates that the Ontario Human Rights Commission perceived its mandate as including the investigation of the complaint and attempt to effect a settlement. It offered the mediation services which it normally provides as part of the process it follows in dealing with complaints. [18] On October 27th, 2000, Messrs. Cowan and Traves and the Dean of the Law School filed an originating notice application in the Supreme Court seeking an order in the nature of certiorari to quash and set aside certain decisions and/or actions of the Nova Scotia Human Rights Commission and/or the Ombudsman of the Province of Nova Scotia in relation to Professor Aylward’s complaint. The respondents named in the originating notice action were Professor Aylward, the Commission, the Nova Scotia Ombudsman and the Attorney General of Nova Scotia. [19] By letter dated February 8th, 2001, the Commission’s in-house counsel advised counsel for all parties that the Commission could not afford to pay the Ontario Human Rights Commission’s minimum costs estimated at $50,000.00. The letter went on to state: The Commission acknowledges the jurisdiction of the Ontario Human Rights Commission to be involved with this matter is an issue now before the Court. The Nova Scotia Human Rights Commission now advises that on the current estimate, the cost of the services of the Ontario Human Rights Commission would exceed the Commission’s ability to pay. As a consequence, the Ontario Human Rights Commission’s services cannot be used. (Underlining added) [20] The application was heard by Justice Scanlan on March 1st, 2001. Shortly before the hearing the Commission, which had opposed the application in the written briefs filed with the Court, conceded that it did not have the authority to empower the Ombudsman or the Ontario Human Rights Commission to hear or investigate Professor Aylward’s complaint. The Commission was prepared to consent to an order quashing the decision to delegate the matter to the Nova Scotia Ombudsman. Professor Aylward opposed the application. At the conclusion of the hearing, Justice Scanlan rendered an oral decision granting the application. He subsequently filed written reasons. I would refer to the following portions of his written reasons: ¶ 1 ... The complainant notified the Nova Scotia Human Rights Commission that she would possibly make a complaint involving the Dalhousie Law School and several members of the faculty. She expressed concern that there was a potential conflict of interest if the Nova Scotia Human Rights Commission dealt with the complaint because of earlier relationships she and others involved in the matter had with the Commission. At the time she raised this concern, the persons who were the subject of the complaint were not aware of the possible complaint nor the subsequent steps taken by the Commission. The Commission decided to refer the matter to the Ombudsman and he then decided to refer the matter to the Ontario Human Rights Commission asking them to investigate and hear the complaint. When the Nova Scotia Commission referred the matter to the Ombudsman there was no statutory authority to delegate the power to investigate or hear the complaint. Subsequent regulatory changes and changes to the applicable protocol did not apply retroactively so as to cure the improper delegation of authority. The Applicant now asks this court to quash the original decision of the Nova Scotia Human Rights Commission to delegate the matter to the Ombudsman and the subsequent referral to the Ontario Human Rights Commission) ... ¶ 6 I am satisfied there was a lack of jurisdiction in relation to the referral to the Ombudsman and subsequent referral to the Ontario Human Rights Tribunal. That is conceded by the Human Rights Commission Counsel in the briefs as forwarded to the Court. Whether they were prepared to concede that error or not, there was no proper jurisdiction. There was no proper protocol and there was no regulatory [scheme] which would allow them to proceed with the referral to the Ombudsman or the Ontario Human Rights Commission. [21] In a subsequent decision Justice Scanlan made very substantial orders for costs against the Commission. [22] Justice Scanlan’s order, giving effect to his decision, preserves Professor Aylward’s right to file a complaint with the Commission. The order states in part: IT IS ORDERED THAT the Application herein be and the same is hereby granted and all actions by the Nova Scotia Human Rights Commission and/or the Ombudsman in attempting in good faith to delegate or transfer any of the powers or authorities of the Nova Scotia Human Rights Commission under the Human Rights Act in relation to the processing of the Complaint be and the same are hereby quashed and set aside so that the result is that the Complaint will have the same status that it had prior to the said attempted delegation or transfer of powers or authorities. [23] Professor Aylward appealed Justice Scanlan’s decision and Order to this Court. On December 5th, 2001, this Court granted her application to join parties to the appeal. [24] The Delegation Regulation was repealed by Order in Council 2001-607 effective on and after December 21st, 2001. [25] Counsel for Professor Aylward, in his factum filed with the Court on February 4th, 2002, states that the issue on the appeal is as follows: In a situation where the NSHRC had to disqualify itself from dealing with a proposed complaint by reason of bias, was it within the NSHRC’s authority to assign the investigation of the complaint to a competent, independent agency? [26] Counsel submits that the Commission, under the circumstances, had either the express or implied authority to delegate its authority to investigate her complaint in the manner it did. I disagree with this characterization of the issue as the Commission did more than assign the investigation of the complaint to an independent agency. Counsel submits that s. 24(1)(a) of the Nova Scotia Human Rights Act, R.S.N.S. 1989, c. 214, as amended and s. 29 of the said Act expressly authorized the delegation. The relevant parts of these sections provide: 24 (1) The Commission shall (a) administer and enforce the provisions of this Act; ... 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. [27] I do not accept the submission of counsel for Professor Aylward that there is express authorization in the Act to delegate to the Ombudsman the s. 29 duties of the Commission and the Director as was done in this case. I will deal with this in more detail later in this decision. [28] As this Court must look to the Act to determine the intent of the Legislature, I will review the essential parts of the Act. [29] In Part I, s. 2 sets out the objects and purposes of the Act in a very general manner. Section 4 defines what constitutes discrimination under the Act. Section 5 provides that no person shall in respect of a number of specific instances discriminate against an individual or class of individuals on account of race, colour, sex, etc. There are exceptions provided for in s. 6. [30] Part II of the Act states that the Nova Scotia Human Rights Commission that was “heretofore constituted is continued” (s. 22(1)). Paragraph 24(1) spells out the duties of the Commission including the duty referred to in s. 24(1)(a). Section 26 provides that the Governor in Council shall appoint a Director of Human Rights who is the chief executive officer and a member of the Commission and that the Director shall perform duties and functions prescribed by the Act, by the Commission or by regulations. [31] Part III of the Act deals with administration. I have already quoted s. 29. [32] Section 32 provides: 32(1) When, at any stage after the filing of a complaint and before the commencement of a hearing before a board of inquiry, a settlement is agreed on by the parties, the terms of the settlement shall be referred to the Commission for approval or rejection. (2) Where the Commission approves or rejects the terms of a settlement referred to in subsection (1), it shall so certify and notify the parties. (Underlining added) [33] Section 32A authorizes the Commission to appoint a board of inquiry to inquire into a complaint after the filing of a complaint. Section 32A(3) provides that no member, officer or employee of the Commission is eligible to be appointed to a board of inquiry. [34] In my opinion, s. 29 establishes what is the core function of the Executive Director and the Commission with respect to complaints. Pursuant to s. 29, where a person has made a written complaint or where the Commission has reasonable grounds for believing that a complaint exists, the Commission shall instruct the Director or some other officer to both inquire into the matter and endeavour to effect a settlement of any complaint of an alleged violation of the Act. However, pursuant to s. 32(1) it would appear that it is only after the filing of a complaint, and before the commencement of a hearing by a board of inquiry, that a settlement that is agreed upon by the parties shall be referred to the Commission for approval or rejection. This provision of s. 32 seems to be a pre-condition, that before a settlement that is agreed to by the parties can be submitted to the Commission for approval or rejection there must have been a written complaint filed. [35] I would note that Ms. Aylward has never filed a complaint with the Commission. The complaint she filed on August 14th, 2000, was with the Ontario Human Rights Commission. [36] Pursuant to s. 32A of the Act the Commission is empowered to appoint a board of inquiry to inquire into a complaint but only after such a complaint has been filed. Section 33 sets out who shall be parties before a board of inquiry with respect to any complaint and such parties include the Commission and any person named in the complaint as having contravened the Act. [37] The Act gives a board of inquiry broad jurisdiction and powers to determine if any person has contravened the Act (s. 34(7)). [38] The Act provides for an appeal to this Court from a decision or order of the Board on a question of law (s. 36(1)). [39] Pursuant to s. 42(2) the Governor in Council is authorized to make regulations that it deems necessary or advisable for the attainment of the objects and purposes of the Act. [40] In summary, the Act creates a mechanism to identify and deal with human rights complaints of discrimination. The core function of the Director is to inquire into and endeavour to effect a settlement of complaints. The primary function of the Commission with respect to complaints that have been filed is to approve or reject a settlement agreed upon by the parties and to appoint boards of inquiry to determine if there has been a violation of the Act as alleged by a complainant. Neither the Director nor the Commission determines if the complaint has merit; that is done by a board of inquiry appointed by the Commission. The Commission’s role with respect to complaints is limited in the manner I have described. [41] I reject the submission of counsel for Professor Aylward that the action of the Director in engaging the Ombudsman was authorized pursuant to s. 24(1)(a) of the Act. Section 24(1)(a) of the Act is a general power that one will find in virtually all statutes that create administrative bodies to perform a function authorized by the enabling statute. That section gives the Commission the power to administer the Act but within the confines of the specific duties and powers as spelled out in the Act. [42] Counsel did not refer us to s. 32A(3) but it seems to me to have some relevance on the issue as to whether or not someone other than the Director or other officer of the Commission can investigate a complaint. The section provides as follows: 32A(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. [43] One might infer from this section that a person other than the Director or an officer of the Commission can investigate a complaint, that is, perform some sort of investigation on behalf of the Executive Director or the Commission. Counsel did not refer to this subsection in their submissions. [44] It might also be inferred from s. 32A(3) that an investigator would only be appointed in connection with complaints in writing as it is only with respect to such complaints that a board of inquiry may be appointed by the Commission. Furthermore, an investigator, assuming without deciding that one can be appointed to investigate a complaint, would not have the power to effect a settlement. A settlement can only be sought by the Director or some other officer who has been instructed by the Commission to inquire into and endeavour to effect a settlement (s. 29). I would equate the words “inquire into” with investigate. That aside, the function delegated to the Ombudsman in this instance involved something very different than merely investigating a complaint. [45] Section 29 of the Act is clear. 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 the Act. This is a mandatory direction to the Commission as to what it is to do when a person aggrieved makes a complaint in writing or if the Commission has reasonable grounds for believing that a discrimination complaint exists. I tend to think that under the circumstances of this case that the Commission had reasonable grounds for believing that a complaint by Professor Aylward against Dalhousie existed. The Commission can either cause the complaint to be inquired into and an attempt made to have the parties settle or the Commission could appoint a board of inquiry once the complaint is filed (s. 32A). [46] I reject the submissions made on behalf of Professor Aylward that the words “other officer” as they appear in s. 29 are not limited to persons who are officers of the Commission but would include another body such as the Ontario Human Rights Commission or for that matter the Ombudsman. In my opinion, such an interpretation is completely unreasonable. Given the context of s. 29, “other officer” means an officer of the Commission other than the Director. [47] Although counsel did not bring it to our attention (possibly because they felt it was not relevant as a complaint had not been filed with the Commission), I would note that on October 15, 1991, the Governor in Council had made Regulation “N.S. 221/91" pursuant to the power conferred on the Governor in Council by s. 42 of the Act. The relevant sections of the Regulation provide: 1 The Nova Scotia Human Rights Commission may, at any stage after the filing of a complaint, request the Chief Judge of the Provincial Court to nominate a person or persons for appointment by the Commission to a Human Rights Board of Inquiry to inquire into the complaint if the Commission is satisfied that, having regard to all circumstances of the complaint, an inquiry thereinto is warranted. 2 ... 3 Upon receipt of a request from the Nova Scotia Human Rights Commission, the Chief Judge of the Provincial Court shall nominate a person or more than one person for appointment by the Commission to a Board of Inquiry to inquire into the complaint to which the request relates. 5 Upon receipt of a nomination from the Chief Judge of the Provincial Court, the Nova Scotia Human Rights Commission may, for any valid reason, reject the nomination and so notify the Chief Judge in writing. 6 Upon receipt of a rejection of a nomination, the Chief Judge shall nominate another person in that person’s place. (Underlining added) [48] The Regulation does not state whether the Commission may reject such second nominee or, if rejected, does not provide for further nominations. However, the Commission can only reject a nomination for a valid reason. [49] Section 1 of the said Regulation makes it clear that, it is only after a complaint has been filed, that the Commission may make this request of the Chief Provincial Court Judge. I would again note that Professor Aylward had not filed a written complaint with the Commission on or before September 29th, 1999, when the Executive Director of the Commission engaged the services of the Nova Scotia Ombudsman pursuant to the letters which I have previously set out. However, the Regulation is relevant in the sense that it seems to provide a mechanism that is sufficiently broad that it could be engaged in circumstances such as existed here as a result of Professor Aylward’s allegations that the Commission was biased and that any board of inquiry appointed by the Commission from persons residing in the Atlantic Provinces would also be biased. In my opinion, a consideration of the Regulation is relevant to the appellant’s submission that “administrative necessity” dictated that the Executive Director take the action she did. [50] On September 29th, 1999,when the Executive Director authorized the Ombudsman to handle Professor Aylward’s complaint there was no express authority in the Act for the Executive Director to delegate to the Ombudsman that function. It is clear from the Executive Director’s letter of September 29th, 1999 to Professor Aylward that the Commission intended that the Ombudsman would also determine the independent body to investigate the complaint. It is likewise important to note that the Executive Director did more than simply authorize the Ombudsman to investigate, which power might be implied from the wording of s. 32A(3) of the Act, but rather, the Executive Director intended to and did delegate to the Ombudsman the duty of handling the complaint including the power to determine what independent body would investigate the complaint. [51] There is nothing in the Act that empowers the Executive Director to delegate her duty to endeavour to effect a settlement to the Ombudsman. The September 29th, 1999, letters and the subsequent acquiescence of the Commission in what was being undertaken by the Ombudsman and the Ontario Human Rights Commission impliedly endorsed the actions taken by the Ombudsman in engaging the Ontario Human Rights Commission to investigate and to endeavour to settle the complaint. [52] The Act empowers the Commission to appoint boards of inquiry to inquire into complaints. That is a function to be performed by the Commission. There is nothing in the Act which authorizes the Commission to delegate this function. The Legislature intended that the Commission would appoint boards of inquiry. These actions taken by the Executive Director and the Commission show an abdication of the respective duties imposed on them pursuant to ss. 29 and 32A(1) of the Act. There is no express power in the Act to delegate the mandatory duty to inquire into and attempt to effect a settlement nor is there a power to delegate to the Ombudsman the function of appointing another body to perform these duties. This is what happened. [53] Furthermore, there was nothing in the 1991 Regulation which would authorize such a delegation of authority by the Ombudsman. It is conceded that the so-called Delegation Regulation made on June 1st, 2000, did not have retroactive effect. As a result, the delegation on September 29th, 1999, to the Ombudsman could not be saved by the passage of the Delegation Regulation. [54] I also reject the submissions of counsel for Professor Aylward that because of the bias which she perceived (which view the Director of the Commission apparently acquiesced in judging by the course of conduct followed by the Director), that “administrative necessity” dictated that the Director act as she did in authorizing the Ombudsman to “handle” the complaint. In support of this submission that the delegation was justified, counsel relies on Peralta v. Ontario (1985), 49 O.R. (2d) 705 (Ont. C.A.); Reimer v. Saskatchewan (Human Rights Commission), [1992] S.J. No. 547 (Q.L.)(Sask. C.A.); and Nova Scotia (Human Rights Commission) v. MacDonald, [1999] N.S.J. No. 416 (Q.L.)(N.S.S.C.). In my opinion, these decisions are either clearly distinguishable or irrelevant to the issue before this Court. [55] Peralta involved the validity of provincial regulations. The province had been issuing licenses to commercial fishermen which only placed quotas on one particular species of fish. Generally, the licenses gave the fishermen unrestricted fishing. In 1984, the licenses were suddenly based on past performance and placed quotas on a number of species. The government claimed that this was essential in terms of conservation. The respondents challenged the validity of the regulations on a number of grounds asking the court for judicial review. The Divisional Court declared the regulations invalid. One of the grounds for this was the argument that the provincial regulations were an unauthorized sub-delegation. The Ontario Court of Appeal allowed the appeal thus validating the sub-delegation. This was upheld by the Supreme Court of Canada which issued only a brief oral judgment. The Court of Appeal did not found its decision upon “administrative necessity.” The Court found that the quotas were actually inserted pursuant to the federal rather than the provincial regulations. But the Court did address the basic question as to whether there was authority to sub-delegate. The Court of Appeal looked at the amendments to the federal Act (not addressed by the lower court) and found that the changes in wording clearly had some significance. The previous Act was set up so that the Governor in Council was to make regulations “prescribing the terms and conditions under which a license or lease is issued.” The term ‘prescribing’ had been changed to ‘respecting.” The Court stated at p. 716: The amendment must have had some purpose and significance and, in my opinion, Parliament was ensuring that the Governor in Council was empowered to delegate to others the administration of its regulations. [56] In this appeal, counsel for Professor Aylward relies upon paragraphs such as the following from the judgment in Peralta: When courts have considered whether delegation of ministerial powers were intended, considerable weight has been given to “administrative necessity”, that is, it could not have been expected that the Minister (in this case, the Governor in Council) would exercise all the administrative powers given to him. ... (at p. 717) [57] I fail to see how this argument applies to the Commission in the circumstances of Professor Aylward’s complaint. It is not the same situation. The Commission’s core function with respect to complaints is to cause the complaint to be investigated and if a settlement is reached, approve it or reject it, and, if appropriate, appoint a board of inquiry to determine if the Act has been violated as alleged in the complaint. It is not a situation where a wide spectrum of administrative duties has been imposed on the person or body which could not possibly all be accomplished without the need to delegate. In my opinion, the concept of “administrative necessity” applies to situations where powers are such that no one person or group could possibly do them all. Neither the Executive Director nor the Commission can be heard to be said that they delegated their functions required of them pursuant to the Act because it was impossible to investigate the complaint due to a large volume of complaints they were dealing with. On the contrary, the delegation was made due to an allegation of bias. [58] In Reimer, the “Lesbian and Gay Pride Committee” applied for a parade permit. They were refused one. They filed a complaint with the Human Rights Commission against the Police Commission and the police chief. The Commission appointed an investigating officer who determined that there was “probable cause.” At this point, the Commission then followed its usual procedure of attempting to reach a settlement through its own solicitor. The settlement attempts failed. Police Chief Reimer applied for prohibition to prevent the formal inquiry arguing that the regulations had not been followed which provided that settlement would be conducted by the inquiry officer, the Director or the Assistant Director of the Commission. The lower court had issued prohibition and the Commission appealed. The appeal was allowed. The Court of Appeal found that there was a clear conflict between the regulations and the statute. The statute allowed the settlement to be effected by the Commission or any person designated by the Commission. The regulations then restricted that power. The Court found that where there is such a conflict, the terms of the statute prevail. Sub-delegation must be authorized and here it was clearly authorized by statute. There are no arguments made over “administrative necessity;” it is a clear case where the statute expressly allowed such delegation. [59] In Nova Scotia (Human Rights Commission) v. MacDonald, the issue involved a complaint before the Commission. The Commission had contacted a witness , Mr. MacDonald; he was not a party. He was willing to provide information but wanted Mr. Duplak, solicitor for a party involved present. He did not want Mr. Duplak present as his own solicitor but to “provide support and assistance.” The Commission agreed that Mr. MacDonald could bring an independent solicitor to the interview but refused to interview him in the presence of a solicitor for one of the parties. The Commission applied to court for an order that Mr. MacDonald be interviewed without legal counsel representing one of the parties present. There was some argument that the Court had no authority to grant such an order. Justice Davison noted the purpose of human rights legislation and the rights of such bodies to determine their own procedures. There had been argument that Mr. MacDonald should only have to answer interrogatories or furnish information as he saw fit. That was not the way in which human rights investigations usually proceeded. Justice Davison considered the request of Mr. MacDonald as amounting to a refusal to provide information as required by the Act. He granted the order. [60] There is nothing in that case applicable to this appeal, let alone distinguishable. Allowing a human rights commission to follow its own procedure is not the same as allowing them to sub-delegate a core function without authority. There was no argument in that case about sub-delegation or administrative necessity. The decision is not relevant. [61] Apart from the fact that these cases do not support counsel’s submission, it is of significance that there was in place on September 29, 1999, the 1991 Regulation which appears to have been capable of being engaged to resolve the problem that was facing the Commission because of the allegations of bias raised by Professor Aylward. Therefore, in my opinion, the doctrine of “administrative necessity” is not engaged with respect to Professor Aylward’s allegation of bias. [62] In summary, had the Legislature intended that the Director or the Commission have the power to delegate their responsibilities to inquire into a complaint in the manner dictated by the Act it would have so provided. The Legislature did grant to the Governor in Council the power to enact regulations it deemed necessary or advisable for the attainment of the objects and purposes of this Act. Those objects and purposes as described in s. 2 of the Act include the stated purpose of recognizing that human rights must be protected by the rule of law (s. 2(c)) and the stated purpose to extend the statute law relating to human rights and to provide for its effective administration. N.S. Regulation 221/91 authorizes an independent person, the Chief Judge of the Provincial Court, to nominate a person or persons for appointment by the Commission to a board of inquiry to inquire into the complaint to which the request relates (s. 3). In my opinion, this Regulation could be engaged in the face of an allegation of bias to ensure the appointment of an independent person or persons to inquire into a complaint had one been filed. This was the only regulation in place at the time the delegation of duties was made to the Ombudsman on September 25, 1999. The 1991 Regulation did not authorize the delegation to the Ombudsman by the Executive Director, whether it was made with or without the sanction of the Commission. [63] In response to questions raised by the Court at the conclusion of oral submissions we have now been advised by counsel for the Commission that there has been no change in the position of the Commission on financing the Ontario Human Rights Commission’s involvement as expressed in the February 8th, 2001, letter referred to in para. 19 of this decision. Disposition of the Appeal: [64] On September 29th, 1999, neither the Director nor the Commission had authority, expressed or implied, to delegate to the Ombudsman the responsibilities imposed on the Commission by s. 29 and s. 32A(1) of the Act. [65] Justice Scanlan did not err in granting the Order dated May 9th, 2001. The appeal ought to be dismissed with costs to the “Dalhousie respondents” in the total amount of $2,000.00 inclusive of disbursements and to the respondents Pothier, Kaiser and Black in the total amount of $750.00 inclusive of disbursements. Hallett, J.A. Concurred in: Glube, C.J.N.S. Freeman, J.A.