Commission Asks Supreme Court of Canada To Hear Case

HUMAN RIGHTS COMMISSION--Commission Asks Supreme Court of Canada To Hear Case

For the first time in its 37-year history, the Nova Scotia Human Rights Commission will seek leave from the Supreme Court of Canada to appeal a decision of the Nova Scotia Court of Appeal. The appeal court ruling arose from a human rights complaint filed by Dorothy Kateri Moore, a Mi'kmaq woman.

The Court of Appeal decided on Oct. 29 to uphold a Feb. 17 decision by an independent human rights board of inquiry dismissing Ms. Kateri's Moore's complaint.

Ms. Moore, of Membertou, alleged that Trevor Muller, the owner of Play it Again Sports in Sydney, and Ronald Muller, a co-worker, discriminated against her when they referred to her as "kemosabe."

"The decision from the Court of Appeal raises a fundamental legal issue that speaks to overall attitudes in Nova Scotia regarding diversity in the workplace," said commission legal counsel, Michael Wood.

The independent chair of the board of inquiry, David J. MacDonald, ruled in February 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 Nova Scotia Court of Appeal.

In its October decision, the Court of Appeal rejected the commission's argument that the independent board erred by placing an undue burden on the complainant to prove she found the term offensive. Justice David Chipman, writing for the three-member appeal court panel, concluded Ms. Moore had not shown that the term was "notoriously offensive."

"The Nova Scotia Court of Appeal decision has made it all the more necessary to seek direction from the Supreme Court by saying the word in this case was not 'notoriously offensive'," said Mr. Wood. "Nova Scotians and Canadians in general need to understand what that phrase means in order to determine what is or is not considered acceptable behaviour in the workplace. We're hoping the Supreme Court of Canada will agree to hear this case and provide that guidance."

A complaint is referred to a board of inquiry when the Nova Scotia Human Rights Commission believes 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 board chair from a roster and the commissioners ratify the nomination. The complaint decision is then in the hands of the independent board.

Evidence collected during investigation of a complaint is presented at the hearing by the commission's legal counsel. The complainant and respondent can make submissions and question witnesses. The board chair then decides whether 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/2004decisions.htm .