South Shore Regional Centre for Education v. Nova Scotia (Human Rights Board of Inquiry)

South Shore Regional Centre for Education v. Nova Scotia (Human Rights Board of Inquiry) Court Court of Appeal Date 2024-10-30 Citation 2024 NSCA 89 Docket CA 523836 Judge/Registrar/Adjudicator Bryson, Peter M.S. (Honourable Justice) (CA); Bourgeois, Cindy A. (Honourable Justice) (CA); Van den Eynden, Elizabeth (Honourable Justice) (CA) Document Type Decision Decision Content Nova Scotia Court of Appeal Citation: South Shore Regional Centre for Education v. Nova Scotia (Human Rights Board of Inquiry), 2024 NSCA 89 Date: 20241030 Docket: CA 523836 Registry: Halifax Between: South Shore Regional Centre for Education Appellant v. Nova Scotia Board of Inquiry under the Human Rights Act, the Nova Scotia Human Rights Commission, Cheryl Foley as litigation guardian of Cade Foley, the Province of Nova Scotia (Department of Education & Early Childhood Development) and the Attorney General of Nova Scotia Respondents Judge: The Honourable Justice Peter M.S. Bryson Appeal Heard: May 29, 2024, in Halifax, Nova Scotia Subject: Human Rights – Limitation Period – Statutory Interpretation Cases Cited: Shupe v. Redmond, 2022 NSCA 7; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2008 NSCA 108 [Harnish]; Nova Scotia (Attorney General) v. MacLean, 2017 NSCA 24; Izaak Walton Killam Health Centre v. Nova Scotia (Human Rights Commission), 2014 NSCA 18; Nova Scotia (Environment) v. Wakeham et al, 2015 NSCA 114; ExxonMobil Canada Ltd. v. Carpenter, 2011 NSSC 445; Olumide v. Nova Scotia Human Rights Commission, 2019 NSSC 223; Smith v. Nova Scotia (Human Rights Board of Inquiry), 2017 NSCA 27; Nova Scotia Liquor Corporation v. Nova Scotia (Board of Inquiry), 2016 NSCA 28; C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61; Zundel v. Canada (Human Rights Commission), [2000] 4 F.C. 255 (F.C.A.); Szczecka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333 (F.C.A.). Statutes Cited: Human Rights Act, R.S.N.S. 1989, c. 214. Facts: A human rights complaint was filed by a litigation guardian on behalf of her minor son, alleging racial discrimination by the South Shore Regional Centre for Education (South Shore) while the son attended Pentz Elementary School. The complaint detailed various instances of alleged discrimination beginning in 2013-14. The last contact between the complainant – (Respondent, Mr. Foley) and the South Shore Regional Centre for Education was a meeting on January 25, 2019. (paras 1 and 43). Procedural History: Nova Scotia Human Rights Commission, November 22, 2021: Appointed a Board of Inquiry to investigate the complaint (para 2). Parties Submissions: Appellant (South Shore Regional Centre for Education): Argued that the complaint was statute-barred as none of the alleged discriminatory acts occurred within the twelve-month limitation period required by the Human Rights Act. They also contended that the Board exceeded its jurisdiction by considering the January 25, 2019 meeting as discriminatory (paras 3 and 6). Respondents (Cheryl Foley and Nova Scotia Human Rights Commission): Asserted that the complaint was timely because the January 25, 2019 meeting was included in the complaint. They argued that the Board was entitled to consider extrinsic evidence and that the motion to dismiss was premature (para 7). Legal Issues: (1) Is the appeal premature? (2) Did the Board err in law in defining “complaint” under the Act? (3) Did the Board err in law by considering extrinsic evidence to determine whether the complaint was timely? (4) Was the complaint out of time? Disposition: The appeal was allowed, and the complaint was dismissed. Reasons: Per Bryson J.A. (Bourgeois and Van den Eynden JJ.A. concurring): The Court found that the appeal was not premature as the limitation issue was central to the Board's jurisdiction, and resolving it could prevent unnecessary litigation (paras 19-24). The Board erred in law by expanding the definition of "complaint" to include supplementary documents and evidence beyond the formal written complaint, which is contrary to the statutory requirements (paras 25-31). The Board improperly considered extrinsic evidence to determine the timeliness of the complaint, as the limitation period should be assessed based on the allegations in the formal complaint document (paras 32-40). The complaint was out of time because it did not allege any discriminatory conduct within the twelve-month limitation period, and the January 25, 2019 meeting was not described as discriminatory in the complaint (paras 41-58). This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 59 paragraphs. Nova Scotia Court of Appeal Citation: South Shore Regional Centre for Education v. Nova Scotia (Human Rights Board of Inquiry), 2024 NSCA 89 Date: 20241030 Docket: CA 523836 Registry: Halifax Between: South Shore Regional Centre for Education Appellant v. Nova Scotia Board of Inquiry under the Human Rights Act, the Nova Scotia Human Rights Commission, Cheryl Foley as litigation guardian of Cade Foley, the Province of Nova Scotia (Department of Education & Early Childhood Development) and the Attorney General of Nova Scotia Respondents Judges: Bryson, Bourgeois, and Van den Eynden, JJ.A. Appeal Heard: May 29, 2024, in Halifax, Nova Scotia Held: Appeal allowed, per reasons for judgment of Bryson J.A.; Bourgeois and Van den Eynden, JJ.A. concurring Counsel: Ian Pickard and Alex Warshick, for the appellant Jason Cooke, KC and Ashley Hamp-Gonsalves, for the respondent Nova Scotia Human Rights Commission Davies Bagambiire and Robert Perron, for the respondent Cheryl Foley Andrew Taillon, for the respondent Province of Nova Scotia (Department of Education and Early Childhood Development) (watching brief only) Eric K. Slone, for the respondent Nova Scotia Human Rights Commission Board of Inquiry (not participating) Edward A. Gores, KC, for the respondent Attorney General of Nova Scotia (not participating) Reasons for judgment: Introduction [1] Cheryl Foley is litigation guardian for her minor son. On November 6, 2019, Ms. Foley filed a human rights complaint alleging discrimination beginning in “2013-14” against her son while he attended Pentz Elementary School. Various examples of alleged discrimination were described in the complaint, relating to race or colour.[1] [2] On November 22, 2021, the Human Rights Commission appointed Eric Slone as a Board of Inquiry under the Act. [3] South Shore Regional Centre for Education (“South Shore”) brought a preliminary motion claiming the complaint was statute barred. South Shore argued that none of the alleged discrimination occurred within twelve months of the filing of the complaint as required by the Act. [4] The Board found that the last contact between the parties described in the complaint was a meeting on January 25, 2019. The Board considered what transpired at the January 25, 2019 meeting “might be considered discriminatory”. The Board did not say how. [5] The Board concluded: [45] In the result, I am not convinced that the complaint is bound to fail on limitation grounds. The entire record discloses allegations of ongoing discriminatory acts or omissions on the part of the SSRCE that, if accepted, would make the complaint timely. [Original emphasis.] [6] South Shore appeals, advancing two related arguments in its factum: 1. The Board erred in law when interpreting the complaint as a complaint within the statutory twelve month limitation period; and 2. The Board exceeded its jurisdiction by substantively amending the complaint by concluding the January 25, 2019 meeting constituted discrimination. [7] The respondents, Ms. Foley and the Commission, disagree. They say the complaint was timely because the January 25, 2019 meeting was included in the complaint. They also argue the Board was entitled to consider “extrinsic” evidence. Ms. Foley says the Board did not purport to amend the complaint. The Commission adds that the motion is premature, so this Court should not entertain the appeal. [8] For reasons given below, the appeal should be allowed. The January 25, 2019 meeting between the parties did not involve discriminatory conduct which would bring the complaint within the limitation period. None of the allegations in the complaint occurred within twelve months of filing the complaint. Extrinsic evidence cannot be considered to augment an untimely complaint. Investigation Report [9] Following the filing of the complaint, an administrative investigation was undertaken by a human rights officer. The purpose of the investigation was to determine whether to recommend appointment of a Board of Inquiry. [10] South Shore raised a preliminary objection that the complaint was out of time because there was no allegation of discrimination within twelve months of the filing of the complaint. Both South Shore and Ms. Foley made extensive submissions to the investigating officer. In her submissions, Ms. Foley expanded the allegations of discrimination in her complaint to allege new acts of discrimination, both at Pentz Elementary and at her son’s new school, Hebbville Academy. Some of the new allegations were within twelve months of the complaint. [11] In addition to challenging Ms. Foley’s substantive allegations, South Shore reiterated its limitation argument, and protested that this question could only be resolved based on the complaint, not the new allegations. [12] The reviewing officer recognized that South Shore’s limitation argument would require legal analysis. She recommended that the “complaint be referred to a Board of Inquiry, pursuant to section 32A(1) of the Human Rights Act, to determine whether discrimination occurred”. Issues [13] The Amended Notice of Appeal lists ten grounds. These are summarized as two in South Shore’s factum. [14] The issues can be conveniently restated: 1. Is the appeal premature? 2. Did the Board err in law in defining “complaint” under the Act? 3. Did the Board err in law by considering extrinsic evidence to determine whether the complaint was timely? 4. Was the complaint out of time? [15] This is a statutory appeal. Section 36(1) of the Act permits an appeal on a question of law only. The standard of review is correctness.[2] Is this Appeal Premature? [16] The Commission makes a preliminary objection that this Court should not entertain an appeal from an interlocutory motion, absent “exceptional circumstances”. [17] The Commission correctly argues that as a general rule courts are reluctant to consider appeals or judicial reviews of interim or interlocutory decisions, citing Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2008 NSCA 108 [Harnish], where the Court quoted from the Federal Court of Appeal, describing various reasons for judicial restraint: [9] In Zündel the Federal Court of Appeal states: [10] Are the applications for judicial review premature? As a general rule, absent jurisdictional issues, rulings made during the course of a tribunal’s proceedings should not be challenged until the tribunal’s proceedings have been completed. The rationale for this rule is that such applications for judicial review may ultimately be totally unnecessary: a complaining party may be successful in the end result, making the applications for judicial review of no value. Also, the unnecessary delays and expenses associated with such appeals can bring the administration of justice into disrepute. […] [12] In Szczecka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333 (F.C.A.) Létourneau J.A. held: . . . unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, especially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses which interfere with the sound administration of justice and ultimately bring it into disrepute. [p. 335] […] [Emphasis omitted.] [18] A number of cases relied upon by the Commission emphasized that resort to the Court by judicial review should await conclusion of the “administrative process”. But, unlike here, those cases involve regimes that provide for a statutory review and appeal of first instance decisions (for example, see C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61; Zündel v. Canada (Human Rights Commission), [2000] 4 F.C. 255 (F.C.A.); Szczecka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333 (F.C.A.)). [19] This case is a statutory appeal on a question of law. So it is even more limited in scope than the basis for review in cases cited by the Commission. Moreover, in this case the limitation issue goes to the basis of the Board’s jurisdiction. If the limitation period is not resolved until the hearing, extensive resources of time and money may be needlessly spent. [20] This Court has rejected a prematurity argument in a human rights case alleging a reasonable apprehension of bias against a board of inquiry, owing to the waste of resources that could occur if the issue of bias were not promptly resolved:[3] [27] Faced with these circumstances, it would seem to me to be a colossal waste of time and resources if we were to decline to consider the merits of the allegation of apparent bias on the grounds of prematurity, thus permitting Mr. Thompson to carry on with and complete what is sure to be a lengthy set of hearings, followed by post-hearing submissions, then deliberations, and the ultimate filing of a decision; yet, at the end of all of that, risking the possibility that if the Board’s decision were to find against the provincial government, a ground of appeal months (or years) later would likely raise the very same allegation that a reasonable apprehension of bias on the part of the Board had been established before the case was even heard. Such a prospect hardly seems sensible, efficient or just. [21] This Court has also considered preliminary appeals in human rights appeals.[4] In Wakeham, the significant impact of the length and complexity of the proceeding met the “special circumstances” test. [22] The allegations here go back more than nine years. As South Shore argues, the inquiry is likely to be lengthy and involved. It has not been expeditious to date. It likely will not be expeditious going forward. A successful ruling on South Shore’s appeal could potentially avoid much time and expense. While this appeal has incurred some delay, it is by no means extensive in light of the length of the process to date. [23] In this case, the special circumstances include the jurisdictional issue raised by the limitation argument, together with the potential for extensive, expensive and possibly unnecessary litigation if South Shore’s appeal succeeds. [24] The Court should consider this appeal. Did the Board err in law when defining the complaint? [25] South Shore argues the Board’s fundamental error appears in paragraph 38 of its decision: [38] In my view, the Complaint before the Board at this point consists not only of the Complaint form itself, but the supplementary documents, and perhaps the evidence filed in support of the motion. At the very least, the two Rebuttal documents should not be ignored, as they were provided to the Commission before the referral to a Board of Inquiry was made. [Emphasis added.] [26] Both Ms. Foley and the Commission disagree. They argue that when addressing the limitation issue, the Board was entitled to consider the additional materials submitted to the investigating officer as well as the evidence filed with the Board. [27] The Act describes a complaint in section 29: Procedure on complaint 29 (1) The Commission shall 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. (2) Any complaint must be made within twelve months of the date of the action or conduct complained of, or within twelve months of the last instance of the action or conduct if the action or conduct is ongoing. [Emphasis added.] [28] It is obvious that the word “complaint” is used differently in ss. (1)(a) and ss. (1)(b). For the purposes of the limitation period in ss. (2), a complaint is a “document that provides the substance of the alleged violation” of the Act.[5] In ExxonMobil, the court rejected an interpretation of section 29 (1)(b) that “would elevate informal communications to the status of complaints” because “the scheme is premised on a formal complaint and a process of inquiry based on it”:[6] [13] The Act establishes procedures to be followed after the filing of a complaint. This includes approval of a settlement “after the filing of a complaint” in s. 32(1), the appointment of a board of inquiry “after the filing of a complaint” in s. 32A(1). The complaint determines the parties: s. 33. It determines the scope of the final decision: s. 34A. [14] Throughout the Act, “complaint” is treated as a document that provides the substance of the alleged violation and information about the parties harmed by it. For that reason, s. 29(1)(b) is difficult. Does it mean that the commission additionally obtains jurisdiction when it reasonably believes that a complaint has been prepared but not yet “made” or filed? Or, does it use “complaint” in a different sense than found in the rest of the Act, a sense that refers to the substance of a complaint, the grounds for complaining? [15] To apply the first sense has the attraction of consistency and the disadvantage of redundancy. (How can it be said that one has reasonable grounds for believing that a formal complaint “exists” although it has not yet been made?) To apply the second has the attraction of meaningful use. (The board can launch an investigation when it reasonably believes there are grounds for a complaint.) This has, however, the disadvantage of inconsistent use of the same word. Parliament and the legislatures are not expected to use the same word, in the same statute, with different senses. [16] As I see it, there has to be a substantial difference between the sense in which “complaint” is used in the phrase “reasonable grounds for believing that a complaint exists” in s. 29(1)(b) and the sense in which it is used in “makes a complaint in writing” in s. 29(1)(a), “complaint … made” in s. 29(2), and “an additional period to make a complaint” in s. 29(3). If complaint is understood in s. 29(1)(b) to be the same as in the other places, then s. 29(1)(b) is redundant. [17] Unlike all of the other provisions, which refer to a complaint being made, s. 29(1)(b) refers to grounds for believing that a complaint exists. The only circumstance in which the commission might reasonably believe that a complaint exists, although it has not been made, arises when the commission has information about a violation of the Act that could reasonably found a complaint. [18] That is to say, “complaint exists” means that there are reasonable grounds for believing that someone could rightly make a complaint. [19] This makes s. 29(1)(b) meaningful because it supplies a basis for the commission to launch an inquiry into its own complaint. [20] I reject the alternative interpretation of s. 29(1)(b) that would elevate informal communications to the status of complaints. The scheme is premised on a formal complaint and a process of inquiry based on it. The interpretation suggested for Ms. Carpenter would be inconsistent with the scheme and the certainty it is meant to achieve. It would also make s. 29(1)(a) nearly meaningless because in almost every case the obligation to make inquiries would arise at some vague time in the dialogue between a complainant of the commission. [Emphasis added.] [29] Consistently with ExxonMobil, the Nova Scotia Supreme Court has commented on what constitutes a complaint:[7] [153] A complaint must be in writing on a form prescribed or the Commission must have reasonable grounds to believe a complaint exists before there is a requirement to “inquire into and endeavour to effect a settlement of any complaint.” Mr. Olumide’s complaint was still at the initial inquiry stage - it was not on a form prescribed by the Director. In short, it was not yet a complaint under the Act. In addition, the NSHRC did not believe a complaint existed that should proceed to the formal complaint stage. I find that belief to be reasonable based on the Record before this Court. [Emphasis added.] [30] The foregoing is supported by comments from this Court in Smith v. Nova Scotia (Human Rights Board of Inquiry):[8] [66] … Once again, the appellant is incorrect. This Board was legally bound to adjudicate only those allegations that are put to it by the Nova Scotia Human Rights Commission in the complaint. This was precisely the issue that came before this Court in Nova Scotia (Environment) v. Wakeham, 2015 NSCA 114. [Emphasis added.] [31] The Board provides no statutory or analytical foundation for its expansive interpretation of “complaint”. A plain reading of section 29 (1) and (2), as well as a contextual reading of these sections within the Act as a whole, shows that the complaint is the written complaint described in section 29 (1)(a). Did the Board err in law by considering extrinsic evidence? [32] The parties filed materials respecting the limitation period with both the investigating officer and the Board. South Shore says it did so to explain that the new allegations of discrimination by Ms. Foley were prompted by its motion to dismiss on the limitation issue. Regardless, in the end, there was a lengthy record before the Board which included submissions made to the Commission’s investigating officer, before a Board was appointed. [33] None of this matters. The limitation period in section 29 (2) of the Act is grounded in allegations made in the complaint. [34] The complaint form itself is the foundational document that gives jurisdiction to the Board. The Board cannot “amend or consider” extraneous material if there is no jurisdiction on the face of the complaint itself. One cannot amend oneself into jurisdiction. [35] In this case the Board relied on Wakeham and Harnish to argue that it could consider events of a similar nature, not listed in the original complaint. But Wakeham and Harnish were not limitation issue cases. [36] Wakeham and Harnish involved potential amendments to a timely complaint of discrimination – something lacking here. Those cases decide whether the amendment would substantively alter the complaint, effectively adding new grounds, or whether the amendment would merely particularize existing grounds. That was not the question before the Board in this case. [37] The Board cannot assess whether a proposed amendment to a complaint is permissible until it has determined that there is a timely complaint of discrimination. The Board confuses these two steps of amendment and timeliness. The question for the Board on this motion to dismiss was whether the complaint, as alleged in the complaint form, complied with section 29 (2) of the Act. That question is distinct from whether the complaint can be amended. Whether the complaint can be amended in accordance with the test in Wakeham, is not relevant to whether the complaint is timely. [38] The tolling of the limitation period is defined by the complainant in the complaint, whose signature on the document “evidences his consent to the framing of the complaint”.[9] [39] This is not unfair to the complainant who controls the narrative in the allegations advanced. Moreover, the complainant is assisted by the Commission staff who help prepare the complaint. The process accords these advantages to the complainant. It is not a heavy onus for the complainant, assisted by the Commission, to meet the minimal statutory requirements of jurisdiction, timeliness, prima facie case and the like. The Director may also extend the limitation period for the complainant’s benefit under section 29 (3) of the Act. [40] The Board lacks jurisdiction over untimely complaints because it is “ultimately a statutory tribunal governed and limited by the provisions of the parent legislation”.[10] A complaint cannot proceed to a hearing on its merits if there are no timely events or conduct complained of in the complaint form prescribed by the Director. It therefore follows that the Board cannot amend a complaint that does not include a timely allegation of discrimination because it lacks jurisdiction to do so.[11] Was the complaint out of time? [41] Section 29 (2) of the Act describes the time limit for making a complaint: Procedure on complaint 29 … (2) Any complaint must be made within twelve months of the date of the action or conduct complained of, or within twelve months of the last instance of the action or conduct if the action or conduct is ongoing. [42] The limitation period begins on the date on which the “action or conduct”[12] described in the complaint occurs. In IWK, this Court noted “the limitation period clearly tolls from the events described in section 29(2).”[13] These events appear in the written complaint. [43] Ms. Foley’s complaint begins: I, Cheryl Foley [on] behalf of Cade Foley, complain against the Province of Nova Scotia (Department of Education & Early Childhood Development – South Shore Regional Centre for Education) that from 2013 to January 25, 2019, the Respondent discriminated against me with respect to the Provision of or access to services or facilities because of my Race and/or Colour. [44] Although the meeting of January 25, 2019, is mentioned in the preamble, the complaint does not describe any alleged discriminatory conduct at that meeting. The complainant concludes: I refer to all the above information and allege that these actions constitute discrimination on account of my race and colour and that they are prohibited under Section 5(1)(a)(i)(j) of the Nova Scotia Human Rights Act. I have read (or had read to me) the above allegations and to the best of my knowledge, the information is true and accurate. [45] The Commission says the complaint was filed in time and on its face alleged that the January 25, 2019 meeting was captured by the complaint as discriminatory conduct or potential discriminatory conduct. [46] In the complaint, Ms. Foley described the January 25 meeting this way: When we had our last meeting on January 25, 2019, we specifically asked if there was funding available for counselling for this type of trauma. We told that there was none. This leaves us to try to find help on our own. The mother asked the new Director why there was money available for a student who received a physical injury, but there was no money available for emotional and mental trauma caused by the employees of the South Shore Regional Centre for Education. [47] The Commission and Ms. Foley elaborate that the complaint is timely because they say discrimination occurred “between 2013 and January 25, 2019”. Since the complaint was filed on November 6, 2019, it was within twelve months of the January 25 meeting. There are three difficulties with this argument. First, the complaint does not allege the January 25 meeting involved any discrimination. Second, that meeting is not included in the examples of discriminatory behaviour listed in the complaint. Third, in Ms. Foley’s submissions to the Commission’s investigating officer, she explicitly rejected the suggestion that the meeting was discriminatory: I never claimed these actions described in this paragraph were discriminatory. [48] The Board itself was ambivalent about any discrimination at the January 25 meeting: [13] It is not specifically alleged in the complaint form that the meeting on January 25, 2019 amounted to an act of discrimination, though counsel for the Complainant suggests ways it might be characterized as discrimination. Nevertheless, if that argument is not accepted, and if one cannot look beyond the four corners of the complaint form to find an incident of discrimination within a year of the filing date, the Complainant has a potential limitation problem. … [20] To summarize, here we have a complaint that on its face lists a date for the last instance of discrimination - January 25, 2019 - that would bring it within the limitation period, though it appears from elsewhere on the complaint that such date only involved a meeting between the Complainant and SSRCE Administration to discuss the situation with Cade, which event in itself was arguably not discriminatory. … [42] I am also satisfied that the mention of the January 25, 2019 meeting in the complaint form is an anchoring event for limitation purposes. While the meeting itself may not have been discriminatory, the Complainant says that in the meeting she spoke with the administration about the more recent incidents that were occurring at Hebbville Academy. Their inaction is light of such information might be considered discriminatory, as argued by counsel. [Emphasis added.] [49] The Board’s interpretative ambivalence cannot supply the deficiency which the complaint itself lacks: an allegation of discrimination within the limitation period. [50] The task of the Board in this case was to interpret the complaint in accordance with the Act. Sections 4 and 5 of the Act describe what discrimination means, and what conduct is prohibited because it is discriminatory. The Board never says that the January 25 meeting described an alleged act of discrimination and never purports to explain how it might be discriminatory. The Board’s equivocal comments quoted above are conclusory and lack analytical foundation. [51] Alternatively, relying upon Smith,[14] Ms. Foley suggests this is a case of ongoing discrimination which dispenses with the need for a timely complaint. Respectfully, Ms. Foley misreads Smith which accepted that “work reassignment” within the limitation period was, in the circumstances, a discriminatory act: [15] In his preliminary ruling, Mr. Murray determined that he was bound by the complaint as drafted. The acts specified in the complaint related to events that occurred since 2005. The only specific instances of discrimination and retaliation alleged by the appellant were in relation to his re-assignment to the Bedford/Sackville Hub, and his involvement in a program to reduce innocent absenteeism. [Emphasis added.] [52] As previously observed, the Board’s expansion of the meaning of “complaint” allowed the Board to comment that:[15] “the entire record discloses allegations of ongoing discriminatory acts or omissions on the part of the SSRCE, that if accepted would make the complaint timely” [Original emphasis omitted; Emphasis added.] [53] The Board fails to say what in the record would make the complaint timely even if it were considered to be a case of “ongoing discrimination”. In Smith, the Court said the Board could not inquire into events outside the period specified in the complaint unless there was also an incident of discrimination within that limitation period. Smith quoted with approval from the Board’s preliminary decision where it emphasized the need for a timely allegation of discrimination: [59] Similarly, at ¶9-12 of his preliminary decision defining the scope of the inquiry, Mr. Murray said: [9] The Act concurrently restricts my authority to inquire into and to adjudicate upon actions or conduct. For distinct instances of alleged discriminatory acts or conduct, these must have occurred within 12 months of the date of the complaint: Izaak William Killam Health Centre v. Nova Scotia (Human Rights Commission), 2014 NSCA 18 (CanLII), at paras. 24, 36. The Izaak Walton Killam case dealt with a specific event that occurred on a clearly identifiable date. [10] Where the allegation is that there has been an ongoing act of discrimination, or ongoing discriminatory behaviour, then it is only necessary that the last instance occurred within the 12 months prior to the signing of the complaint to satisfy the limitation period. If there is a “last instance” within 12 months of the complaint, there is no apparent statutory restriction on how far back my authority to inquire could extend. This is particularly important with respect to claims involving systemic discrimination, or complaints related to patterns or habits of behaviour in relation to specific individuals which are perceived as discriminatory. ... [12] ... Based on this approach to limitation provisions in human rights legislation, “ongoing” discrimination in our Act would therefore appear to contemplate behaviour that is recognizable as a series of separate but successive actions involving the complainant, each of which could constitute a violation of the Act. [Emphasis in original.] [54] In the further alternative, Ms. Foley argues that section 29 (2) can be read disjunctively, so that instances of “ongoing” discrimination need not be particularized in the complaint. As long as something discriminatory happened in the preceding twelve months, the complainant need not describe it, so the complaint is not out of time. For ease of reference, section 29 (2) is reproduced here: (2) Any complaint must be made within twelve months of the date of the action or conduct complained of, or within twelve months of the last instance of the action or conduct if the action or conduct is ongoing. [55] Ms. Foley maintains that the words “complained of” only apply to the first part of the sentence, and do not modify “action or conduct” in the second part of the sentence. On this logic, a complainant must particularize a discrete act of discrimination, but can be coy about ongoing discrimination. One of the most significant amendments to the Act in 2008 was the introduction of the twelve month limitation period, to be consistent with other jurisdictions. Neither the proponents of the limitation amendments,[16] nor Ms. Foley suggest any reason for such a novel distinction. Ms. Foley’s interpretation would disrupt the entire scheme of the Act. It is the complaint document that “provides the substance of the alleged violation and information about the parties harmed.”[17] But according to Ms. Foley, the alleged wrongdoer would be denied any knowledge of recent acts of discrimination. [56] Apart from the inconsistency introduced to the limitation period by Ms. Foley’s submissions, her argument ignores this Court’s decision in Nova Scotia Liquor Corporation v. Nova Scotia (Board of Inquiry) [18] where Justice Bourgeois explained: [114] As noted earlier, what constitutes "ongoing" or "continuous" conduct has been considered in the human rights context, particularly in relation to statutory limitation periods. In order to fall within the exception to an otherwise defined limitation period, the older behaviour must be of the same character as that which has been the subject of more recent complaint (see para. 106). By way of example, a dated complaint of racial discrimination cannot be considered if the current complaint is one founded on mental disability. However, a dated complaint of gender inequality may circumvent the 12 month limitation period, if there is a current complaint of discrimination on the basis of sex. [Emphasis added.] [57] In other words, otherwise statute-barred conduct may be captured by a complaint describing ongoing acts of a similar character, at least one of which occurred within the twelve month limitation period, and is described in the complaint. [58] It does not matter if this were a case of ongoing discrimination, because there is no act of discrimination described in the complaint itself which could bring it within the twelve month limitation period. [59] The appeal should be allowed and the complaint dismissed. Bryson J.A. Concurred in: Bourgeois J.A. Van den Eynden J.A. [1] The complaint was filed on a form prescribed by the Human Rights Commission, in accordance with the Human Rights Act, R.S.N.S. 1989, c. 214, (the “Act”). [2] Shupe v. Redmond, 2022 NSCA 7, at paras. 21-23, applying Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. [3] Nova Scotia (Attorney General) v. MacLean, 2017 NSCA 24, at para. 27. [4] Izaak Walton Killam Health Centre v. Nova Scotia (Human Rights Commission), 2014 NSCA 18; Nova Scotia (Environment) v. Wakeham et al, 2015 NSCA 114. [5] ExxonMobil Canada Ltd. v. Carpenter, 2011 NSSC 445, at para. 14. [6] ExxonMobil, at para. 20. [7] Olumide v. Nova Scotia Human Rights Commission, 2019 NSSC 223, at para. 153. [8] 2017 NSCA 27, paras. 11 and 66. [9] Smith, para 11. [10] Wakeham, at para. 19. [11] Wakeham, at para. 19. [12] S. 29 (1)(a) Act. [13] 2014 NSCA 18, at para. 36. [14] 2017 NSCA 27. [15] Board decision, para. 45. [16] Bill No. 16 – Human Rights Act, 2nd reading, Nova Scotia Legislature Debates, 60-2, No. 07-8 (3 December 2007) at 688 (Hon. Cecil Clarke). [17] ExxonMobil, at para. 14. [18] 2016 NSCA 28.