Commission's Appeal of Board Ruling Unsuccesful

HUMAN RIGHTS COMMISSION--Commission's Appeal of Board Ruling Unsuccessful

Nova Scotia's Court of Appeal has rejected the Nova Scotia Human Rights Commission's request that it overturn a board of inquiry ruling in the complaint of a Mi'kmaq woman.

Dorothy Moore of Membertou alleged that Trevor and Ronald Muller, the owners of Play it Again Sports in Sydney, discriminated against her when they referred to her as "kimosabe."

The independent chair of the board, David J. MacDonald, ruled in February 2004 that discrimination did not take place because Ms. Moore had not shown she was offended by the remark. The Nova Scotia Human Rights Commission appealed that decision to the Court of Appeal.

In its brief to the court, the commission argued that the board chair erred in law when he placed an undue burden of proof on Ms. Moore.

In its decision on Friday, Oct. 29, the court rejected this argument and pointed to the finding of fact made by Mr. MacDonald. Mr. MacDonald concluded that discrimination had not taken place and that Ms. Moore left employment with Play It Again Sports following a specific dispute with Trevor Muller regarding her work.

The commission is still considering whether or not it will seek leave to appeal the ruling to the Supreme Court of Canada.

"We will want to review what the court has said thoroughly before deciding if we will appeal the ruling," said commission legal counsel Michael Wood.

A complaint is referred to a board of inquiry when the commissioners of the Nova Scotia Human Rights Commission believe a prima facie case of discrimination is made after an investigation by a human rights officer. The chief judge of the Provincial Court selects a nominee to chair the hearing from a roster and the commissioners ratify the nomination. The decision on the outcome of the complaint is then in the hands of the chair of the board.

Evidence collected during the investigation of a complaint is presented at the hearing by the Human Rights Commission's legal counsel. The complainant and respondent are able to make submissions and question witnesses. The board chair then decides whether or not discrimination has occurred.

All parties have a right to appeal decisions of boards of inquiry to the Nova Scotia Court of Appeal.

Copies of the original board decision and the ruling of the court of appeal are available on the commission's website at http://gov.ns.ca/humanrights/decisions/default.htm .