How Boards of Inquiries Work--Op-Ed Piece

By Mayann Francis, executive director and CEO of the Nova Scotia Human Rights Commission

Over the last several years, boards of inquiry appointed under the Human Rights Act have attracted much public attention. I believe it is safe to say that the Kirk Johnson matter heightened interest in these hearings. Mr. Johnson's celebrity status and the allegation of racial profiling made against the Halifax Regional Police attracted the public's attention for different reasons.

Public attention was also focused on the outcome of an allegation of racial harassment against Play it Again Sports of Sydney by Dorothy Kateri Moore. Ms. Moore, a Mi'kmaq woman, alleged that her employer discriminated against her when he kept referring to her as "kemosabe" even though she had asked him to use her name or the Mi'kmaq term "nitap." The board of inquiry appointed in this case dismissed the complaint, saying Ms. Moore had not made it clear to her employer that she objected to the word "kemosabe." The Nova Scotia Human Rights Commission unsuccessfully appealed the board of inquiry decision to the provincial court of appeal and the Supreme Court of Canada.

The coverage of these hearings by the media, and some of the public comments following their decisions, have caused me to wonder whether independent boards of inquiry and their role in the human rights process is well understood.

I want to help clarify a process that some people may find confusing. As always, the starting point is the Nova Scotia Human Rights Act.

Section 22(2) of the Act allows the government to appoint three to 12 people to the commission, one of whom will be designated chairperson. Information gathered by human rights officers is placed before these commission members for review.

The commissioners have a few options: discontinue the complaint, send it back to staff for more investigation or an attempt to mediate a settlement, or refer it to an independent board of inquiry.

Section 32A(1) of the Act gives the commissioners the authority to appoint boards of inquiry if the evidence gathered by an investigation supports the allegation of discrimination. Section 29 encourages settlement of a complaint.

If a settlement cannot be reached, it appears that discrimination may have taken place and the commissioners believe there is a public interest involved, the matter could be referred to an independent board of inquiry.

Only this independent board can decide whether or not discrimination actually did occur.

So how does a complaint get from the commissioners to an independent board of inquiry? The commission chairperson asks the chief judge of the Provincial Court to nominate a one-person board of inquiry from a roster of lawyers that has been selected by an external panel. At one of their regular meetings, the commissioners endorse the nomination.

The lawyer is then officially appointed as a board of inquiry. The responsibility for what happens to the complaint passes from the commission to the board of inquiry.

Once appointed, it is up to the board of inquiry to convene a hearing. The commission is represented at the hearing by its lawyer; the complainant and respondent also appear, along with their own lawyers if they choose to have representation.

It is important to stress that the commission's lawyer does not represent the complainant. The commission's lawyer ensures that the evidence which is relevant to the complaint is fully presented to the independent board of inquiry.

The time between the appointment of a board of inquiry and the beginning of the public hearing can vary depending upon the availability of witnesses, preliminary motions and the schedules of all the parties. I recall one situation where a board of inquiry was put on hold pending the availability of one witness. This added months of waiting to the hearing.

Once the hearing is concluded, the board of inquiry renders a decision. This decision may be appealed to the Nova Scotia Court of Appeal by the commission, respondent or complainant. (This is what happened in the Dorothy Kateri Moore matter.) Once the appeal process is finished, the legal human rights process is concluded.

Recently, the commission and the respondent in the complaint of Karen Davison against the Nova Scotia Construction Safety Association, asked the court to clarify when an independent board of inquiry must issue its decision. The application asked the court to require the board of inquiry to produce its decision by a specific date. Parties to the application argued that the lack of a decision was denying justice to all the parties involved. The court agreed and ordered the independent board of inquiry to issue its decision by July 15, 2005.

Boards of inquiry are just one aspect of the legal human rights process. The commission's website, http://gov.ns.ca/humanrights/, provides more information on the Act, the commission's processes and boards of inquiry.