Labour and Employment Board decisions

Facts: The Complainant, Amegadze, a Black man originally from Togo in West Africa, immigrated to Canada in 2007, and he was involved with a New Brunswick Multicultural Association, assisting newcomers to settle in the province. The Complainant visited the Respondent car dealership, Automobiles Beresford Auto, to help a newcomer to buy a vehicle. While they were there, the owner of the dealership, Comeau, ignored them and behaved rudely with the Complainant. He raised his voice and told Amegadze that he “should be in Africa,” but was polite to the newcomer, who was not Black. Amegadze filed a complaint of race discrimination under the Act.

Decision: The Labour and Employment Board found that the Respondents had engaged in unlawful discrimination. It stated that the discriminatory treatment was clearly based on the protected characteristics of race, ancestry, national origin, and place of origin. The Board ordered the Respondents to pay general damages of $12,500 to the Complainant, and it ordered the Respondent Comeau to take mandatory human rights training.

Board of Inquiry HR-004-21, Labour and Employment Board (Marin), Decision dated 22 March 2023, 2023 CanLII 33446 (NB CTE), https://canlii.ca/t/jwvbf

Facts: The Complainant, Sock, was an Indigenous lawyer and member of the Elsipogtog Band. She was hired by Potter, then the Provincial Director of the Respondent, Legal Aid New Brunswick, in March 2004, to work as duty counsel for the Respondent. There was a difference in the understanding of her employment contract, as Sock believed that she was hired only to represent Indigenous clients in provincial courts, while Potter understood that he was hiring her to represent any client qualified for legal aid. As a result, Sock refused to represent any clients except Indigenous offenders whom she believed she was hired to represent. In May 2004, Sock refused a provincial court judge’s request to assist a non-Indigenous offender at a hearing.

Potter received comments and concerns from various judges and court staff regarding Sock’s performance and eventually scheduled a meeting with her in November 2004 to discuss these concerns. Sock and Potter disputed what Potter said at the meeting. According to Sock, Potter said that “a judge in Miramichi called [her] a lazy Indian.” However, according to Potter and another staffer present, Potter was recounting a conversation with a judge and had said that he did not want terms like “lazy Indian” used in his organization. The parties scheduled several more meetings to settle the matter, but they could not come to a mutually satisfactory understanding. In January 2005, Sock resigned from her position with the Respondent and filed a complaint, alleging that the Respondent had discriminated against her based on race and ancestry.

Decision: The Board dismissed the complaint. It noted that while Potter had said the words “lazy Indian” and certainly should not have, he did not intend to discriminate or cause harm at all, but rather to relay the observations of court officials about Sock’s performance. In dismissing the complaint, the Board also noted Sock’s testimony at the hearing where she said that she had “no reason to consider Potter a racist,” and that Potter had always been supportive, encouraging, and kind, and had supported enhanced legal services for Indigenous clients involved in the criminal justice system.

Board of Inquiry HR-003-07, Labour & Employment Board (Kenny), Decision dated January 7, 2008, 2008 CanLII 5615 (NB LEB), https://canlii.ca/t/1vrl5

Facts: The City of Saint John applied for an order prohibiting the Labour and Employment Board from hearing the matter based on lack of jurisdiction. The Court of Queen’s Bench denied the application, arguing that the Board should be allowed to determine the matters following a full hearing, subject to judicial review later.

Decision: The case was closed through mediation and withdrawn before the merits were heard.

Board of Inquiry HR-001-99, Labour & Employment Board (McGinley), Withdrawal Order dated February 3, 2000, [2000] NBHRBID No. 3 

Facts: The Respondent Daily Gleaner published several letters to the editor containing harsh anti-Francophone and anti-bilingualism sentiments. The Complainants, Fernand Levesque and Patrick Tardif, filed complaints against the Gleaner, alleging a violation of then-section 6(1) of the Act, which prohibited publications discriminating against “any class of persons because of [race or ancestry].”

Decision: The Board found that while the letters were violative of section 6(1) of the Act, it did not have jurisdiction to formally deal with the complaint. It found that the Act contains no provision for individuals to file complaints on behalf of groups that are discriminated against, despite the fact that section 6(1) prohibited discrimination against groups. Accordingly, the Board recommended that the Commission proceed by mediation to settle the violation of the Act.

Board of Inquiry (Webster), Decision dated September 10, 1974, 1974 CanLII 2260 (NB BHR), https://canlii.ca/t/jf7t1

Decision: The case was closed through mediation and withdrawn before the merits were heard.

Board of Inquiry HR-002-99, Labour & Employment Board (McGinley), Withdrawal Order dated February 8, 2000, [2000] NBHRBID No. 2 

Facts: The City of Saint John applied for an order prohibiting the Labour and Employment Board from hearing the matter based on lack of jurisdiction. The Court of Queen’s Bench denied the application, arguing that the Board should be allowed to determine the matter following a full hearing, subject to judicial review later.

Decision: The case was closed through mediation and withdrawn before the merits were heard.

Board of Inquiry HR-001-99, Labour & Employment Board (McGinley), Withdrawal Order dated February 3, 2000, [2000] NBHRBID No. 3

Facts: The Complainant, Amegadze, a Black man originally from Togo in West Africa, immigrated to Canada in 2007, and he was involved with a New Brunswick Multicultural Association, assisting newcomers to settle in the province. The Complainant visited the Respondent car dealership, Automobiles Beresford Auto, to help a newcomer to buy a vehicle. While they were there, the owner of the dealership, Comeau, ignored them and behaved rudely with the Complainant. He raised his voice and told Amegadze that he “should be in Africa,” but was polite to the newcomer, who was not Black. Amegadze filed a complaint of race discrimination under the Act.

Decision: The Labour and Employment Board found that the Respondents had engaged in unlawful discrimination. It stated that the discriminatory treatment was clearly based on the protected characteristics of race, ancestry, national origin, and place of origin. The Board ordered the Respondents to pay general damages of $12,500 to the Complainant, and it ordered the Respondent Comeau to take mandatory human rights training.

Board of Inquiry HR-004-21, Labour and Employment Board (Marin), Decision dated 22 March 2023, 2023 CanLII 33446 (NB CTE), https://canlii.ca/t/jwvbf

Facts: The Respondent Atlantic Colleges Athletic Association (ACAA) was an organization made up of member universities, and it was a regional conference of the Canadian Colleges Athletic Association (CCAA). The ACAA and CCAA both set rules intended to unify the eligibility rules for student athletes in intercollegiate sports at the regional and national levels. Teams seeking to compete in ACAA and CCAA competitions were required to comply with the rules of both organizations. One CCAA rule restricted the eligibility of “non-Canadians” to compete in regional and national conferences, defining “non-Canadians” as non-citizens who had not lived in Canada full-time for at least one year before the start of the competitive season (The Non-Canadian Rule).

The Complainant, Sahyoun, was an international student raised in the United Arab Emirates. Sahyoun came to Canada to study at the University of New Brunswick-Saint John (UNB-SJ) in 1998. The Complainant tried out for the UNB-SJ soccer team, but he was restricted from a regular playing position in ACAA competitions due to the Non-Canadian Rule. Sahyoun filed a complaint against the ACAA, alleging that the Non-Canadian Rule discriminated against him based on national origin and place of origin in the provision of services contrary to the Act.

Decision: The Board dismissed the complaint based on its finding that the Non-Canadian Rule was based on citizenship or place of residence, rather than on considerations of national origin or place of origin. It found that the rule’s requirement that a non-citizen athlete reside in Canada for at least one year was applied based only on citizenship, and not on the athlete’s national origin or place of origin. If Sahyoun had been a Canadian citizen or had resided in Canada for the required time, he would have been allowed to play. As the Act does not prohibit discrimination based on citizenship or place of residence, the Board did not have jurisdiction to proceed with the complaint and accordingly dismissed it.

Board of Inquiry HR–003-02, Labour and Employment Board (Couturier), Decision dated July 19, 2004, 2004 CanLII 66256 (NB LEB), https://canlii.ca/t/22h2v

Facts: The Complainant, Amegadze, a Black man originally from Togo in West Africa, immigrated to Canada in 2007, and he was involved with a New Brunswick Multicultural Association, assisting newcomers to settle in the province. The Complainant visited the Respondent car dealership, Automobiles Beresford Auto, to help a newcomer to buy a vehicle. While they were there, the owner of the dealership, Comeau, ignored them and behaved rudely with the Complainant. He raised his voice and told Amegadze that he “should be in Africa,” but was polite to the newcomer, who was not Black. Amegadze filed a complaint of race discrimination under the Act.

Decision: The Labour and Employment Board found that the Respondents had engaged in unlawful discrimination. It stated that the discriminatory treatment was clearly based on the protected characteristics of race, ancestry, national origin, and place of origin. The Board ordered the Respondents to pay general damages of $12,500 to the Complainant, and it ordered the Respondent Comeau to take mandatory human rights training.

Board of Inquiry HR-004-21, Labour and Employment Board (Marin), Decision dated 22 March 2023, 2023 CanLII 33446 (NB CTE), https://canlii.ca/t/jwvbf

Facts: The Respondent Atlantic Colleges Athletic Association (ACAA) was an organization made up of member universities, and it was a regional conference of the Canadian Colleges Athletic Association (CCAA). The ACAA and CCAA both set rules intended to unify the eligibility rules for student athletes in intercollegiate sports at the regional and national levels. Teams seeking to compete in ACAA and CCAA competitions were required to comply with the rules of both organizations. One CCAA rule restricted the eligibility of “non-Canadians” to compete in regional and national conferences, defining “non-Canadians” as non-citizens who had not lived in Canada full-time for at least one year before the start of the competitive season (The Non-Canadian Rule).

The Complainant, Sahyoun, was an international student raised in the United Arab Emirates. Sahyoun came to Canada to study at the University of New Brunswick-Saint John (UNB-SJ) in 1998. The Complainant tried out for the UNB-SJ soccer team, but he was restricted from a regular playing position in ACAA competitions due to the Non-Canadian Rule. Sahyoun filed a complaint against the ACAA, alleging that the Non-Canadian Rule discriminated against him based on national origin or place of origin in the provision of services contrary to the Act.

Decision: The Board dismissed the complaint based on its finding that the Non-Canadian Rule was based on citizenship or place of residence, rather than on considerations of national origin or place of origin. It found that the rule’s requirement that a non-citizen athlete reside in Canada for at least one year was applied based only on citizenship, and not on the athlete’s national origin or place of origin. If Sahyoun had been a Canadian citizen orhad resided in Canada for the required time, he would have been allowed to play. As the Act does not prohibit discrimination based on citizenship or place of residence, the Board did not have jurisdiction to proceed with the complaint and accordingly dismissed it.

Board of Inquiry HR–003-02, Labour and Employment Board (Couturier), Decision dated July 19, 2004, 2004 CanLII 66256 (NB LEB), https://canlii.ca/t/22h2v

Facts: The Complainant, Amegadze, a Black man originally from Togo in West Africa, immigrated to Canada in 2007, and he was involved with a New Brunswick Multicultural Association, assisting newcomers to settle in the province. The Complainant visited the Respondent car dealership, Automobiles Beresford Auto, to help a newcomer to buy a vehicle. While they were there, the owner of the dealership, Comeau, ignored them and behaved rudely with the Complainant. He raised his voice and told Amegadze that he “should be in Africa,” but was polite to the newcomer, who was not Black. Amegadze filed a complaint of race discrimination under the Act.

Decision: The Labour and Employment Board found that the Respondents had engaged in unlawful discrimination. It stated that the discriminatory treatment was clearly based on the protected characteristics of race, ancestry, national origin, and place of origin. The Board ordered the Respondents to pay general damages of $12,500 to the Complainant, and it ordered the Respondent Comeau to take mandatory human rights training.

Board of Inquiry HR-004-21, Labour and Employment Board (Marin), Decision dated 22 March 2023, 2023 CanLII 33446 (NB CTE), https://canlii.ca/t/jwvbf

Facts: The Complainant, Sock, was an Indigenous lawyer and member of the Elsipogtog Band. She was hired by Potter, then the Provincial Director of the Respondent, Legal Aid New Brunswick, in March 2004, to work as duty counsel for the Respondent. There was a difference in understanding of her employment contract, as Sock believed that she was hired only to represent Indigenous clients in provincial courts, while Potter understood that he was hiring her to represent any client qualified for legal aid. As a result, Sock refused to represent any clients except Indigenous offenders whom she believed she was hired to represent. In May 2004, Sock refused a provincial court judge’s request to assist a non-Indigenous offender at a hearing.

Potter received comments and concerns from various judges and court staff regarding Sock’s performance and eventually scheduled a meeting with Sock in November 2004 to discuss these concerns. Sock and Potter disputed what Potter said at the meeting. According to Sock, Potter said that “a judge in Miramichi called [her] a lazy Indian.” However, according to Potter and another staffer present, Potter was recounting a conversation with a judge and had said that he did not want terms like “lazy Indian” used in his organization. The parties scheduled several more meetings to settle the matter, but they could not come to a mutually satisfactory understanding. In January 2005, Sock resigned from her position with the Respondent and filed a complaint, alleging that the Respondent had discriminated against her based on race and ancestry.

Decision: The Board dismissed the complaint. It noted that while Potter had said the words “lazy Indian” and certainly should not have, he did not intend to discriminate or cause harm at all, but rather to relate the observations of court officials about Sock’s performance. In dismissing the complaint, the Board also noted Sock’s testimony at the hearing where she said that she had “no reason to consider Potter a racist,” and that Potter had always been supportive, encouraging, and kind, and had supported enhanced legal services for Indigenous clients involved in the criminal justice system.

Board of Inquiry HR-003-07, Labour & Employment Board (Kenny), Decision dated January 7, 2008, 2008 CanLII 5615 (NB LEB), https://canlii.ca/t/1vrl5

Facts: The Complainant, Attis, was a Jewish man and a father of three children, whose children were enrolled in the Respondent School District. The Complainant alleged that the Respondent discriminated against his family by failing to discipline Malcolm Ross (Ross), a teacher employed by the district, even though Ross did not work at the school attended by Attis’ children. Ross had been publishing materials denigrating persons of the Jewish faith since 1978, including publications on holocaust denial, four published books, and discriminatory letters published in various newspapers, written in his personal time, not while at work. The School District was aware of these activities, but it took no disciplinary action against Ross until 1988, under the assumption that it was not permitted to take action to restrict private expression. Attis’s complaint argued that the district’s failure to discipline and terminate Ross created a poisoned learning environment, discriminating against Attis’ children based on the grounds of religion and ancestry under the Act.

Decisions:

• New Brunswick School District No. 15 v New Brunswick (Human Rights Board of Inquiry), NB Court of Queen’s Bench, nos. M/M/278/88 and M/M/279/88, Decision on Judicial Review of the appointment of a Board of Inquiry dated January 19, 1989, 1989 CanLII 7931 (NB KB), https://canlii.ca/t/g9sm3

The School District applied that the referral to a Board of Inquiry be quashed. The Court of Queen’s Bench granted the application. The Court discussed the history of the term “services” as used in the Act and concluded that it was likely intended to include restaurants, public transportation, and the like, but not government benefits or public education. The Court also wrote that Attis was not an “aggrieved person” as conceived in the Act to file a complaint, because neither he nor his children had come into contact with Ross or attended his classes.

• New Brunswick School District No. 15 v Human Rights Board of Inquiry, NB Court of Appeal, nos. 31/89/CA, 36/89/CA, and 37/89/CA, Appeal from the 1989 Court of Queen’s Bench decision, dated September 8, 1989, 1989 CanLII 208 (NBCA), https://canlii.ca/t/1nzb0

Attis, the Commission, the Canadian Jewish Congress, and the Minister of Labour, appealed against the order to quash the Board of Inquiry. The Court granted the appeal and set aside the 1989 Queen’s Bench decision in its entirety. The Court of Appeal relied on the core interpretive principle that human rights legislation must be read broadly. Accordingly, it found that the Court of Queen’s Bench had been too restrictive with respect to its definitions of “services,” noting that if education was excluded from the scope of services, it would permit discrimination contrary to the Act’s purpose. The Court of Appeal also noted that the court should not have addressed the matter pertaining to the meaning of “aggrieved person”, because that risked deciding on the merits of the complaint prematurely, which was outside the scope of a judicial review. The Court of Appeal ordered the Board of Inquiry to proceed with the complaint.

Facts: The Complainant, Attis, was a Jewish man and a father of three children, whose children were enrolled in the Respondent School District. The Complainant alleged that the Respondent discriminated against his family by failing to discipline Malcolm Ross (Ross), a teacher employed by the district, even though Ross did not work at the school attended by Attis’ children. Ross had been publishing materials denigrating persons of the Jewish faith since 1978, including publications on holocaust denial, four published books, and discriminatory letters published in various newspapers, written in his personal time, not while at work. The School District was aware of these activities, but it took no disciplinary action against Ross until 1988, under the assumption that it was not permitted to take action to restrict private expression. Attis’s complaint argued that the district’s failure to discipline and terminate Ross created a poisoned learning environment, discriminating against Attis’ children based on the grounds of religion and ancestry under the Act.

Decisions:

• New Brunswick School District No. 15 v New Brunswick (Human Rights Board of Inquiry), NB Court of Queen’s Bench, nos. M/M/278/88 and M/M/279/88, Decision on Judicial Review of the appointment of a Board of Inquiry dated January 19, 1989, 1989 CanLII 7931 (NB KB), https://canlii.ca/t/g9sm3

The School District applied that the referral to a Board of Inquiry be quashed. The Court of Queen’s Bench granted the application. The Court discussed the history of the term “services” as used in the Act and concluded that it was likely intended to include restaurants, public transportation, and the like, but not government benefits or public education. The Court also wrote that Attis was not an “aggrieved person” as conceived in the Act to file a complaint, because neither he nor his children had come into contact with Ross or attended his classes.

• New Brunswick School District No. 15 v Human Rights Board of Inquiry, NB Court of Appeal, nos. 31/89/CA, 36/89/CA, and 37/89/CA, Appeal from the 1989 Court of Queen’s Bench decision, dated September 8, 1989, 1989 CanLII 208 (NBCA), https://canlii.ca/t/1nzb0

Attis, the Commission, the Canadian Jewish Congress, and the Minister of Labour, appealed against the order to quash the Board of Inquiry. The Court granted the appeal and set aside the 1989 Queen’s Bench decision in its entirety. The Court of Appeal relied on the core interpretive principle that human rights legislation must be read broadly. Accordingly, it found that the Court of Queen’s Bench had been too restrictive with respect to its definitions of “services,” noting that if education was excluded from the scope of services, it would permit discrimination contrary to the Act’s purpose. The Court of Appeal also noted that the court should not have addressed the matter pertaining to the meaning of “aggrieved person”, because that risked deciding on the merits of the complaint prematurely, which was outside the scope of a judicial review. The Court of Appeal ordered the Board of Inquiry to proceed with the complaint.

Facts: The Complainant, Sonnenberg, was a pastor and evangelist of the New Life Center Church located in Moncton. Sonnenberg approached the Respondent Lang, Director of Student Services at the Respondent Centre, Universitaire Saint-Louis Maillet (the Centre), to rent a room for a religious event. Lang and the Centre declined the request due to a general campus policy that barred rental access to public groups “likely to bother or involve the students,” whether the proposed rental was for a musical, commercial, religious, or other event. Sonnenberg filed a complaint, alleging that the Respondents had denied him a service or facility available to the public based on his religion contrary to the Act.

Decisions:

• Board of Inquiry (Larlee), Decision dated April 29, 1988, [1988] NBHRBID No. 1

The Board dismissed the complaint based on its finding that the room rental was not a “service available to the public” within the Act’s scope, and that no discrimination had taken place. Firstly, the Board relied on a Supreme Court of Canada judgement that interpreted the meaning of the term “available to the public” used in the Act to mean “available to the public at large” or “available to any member of the public.” Relying on this strict definition, the Board noted that the Centre’s campus and rooms were not available to the public at large, but they were meant for the use of students, staff, and other individuals specifically granted access. Accordingly, the Board decided that the Act was not applicable. It also noted that even if the Act had applied in the case, it would still have dismissed the complaint as unsubstantiated.

• Court of Queen's Bench, Decision on judicial review dated September 19, 1989, 1989 CanLII 8162 (NB KB), https://canlii.ca/t/gdjbx

Sonnenberg applied for judicial review of the Board’s decision. The Court of Queen’s Bench dismissed the application, noting that while the Act does apply to the actions of universities, the Board’s decision was reasonable to dismiss the complaint on its merits. Despite dismissing the complaint, the Court observed that the Board’s reliance on strict definitions of the terms “available to the public” and “services” was unreasonable because it ran counter to the principle of broad and liberal interpretation of human rights legislation. Further, according to the Court, the Board had wrongfully interpreted the case law it relied on, and that those cases and subsequent developments in case law would not support such strict interpretion of the definitions. However, the Court found no issue with the Board’s dismissal of the complaint on its merits. Accordingly, it dismissed the application for judicial review. 

Facts: The Complainant, Dunlop, was employed by the Respondent, Calvary Temple Inc., a church organization, as the manager of a service station and garage owned by the Respondent. Dunlop was subject to supervision by the Respondent and its Board of Directors. In his role, Dunlop was responsible for carrying out the Respondent’s directions and operating the service station, which provided services to the public and the Respondent’s fleet of vehicles. During his time as station manager, Dunlop went against the Respondent’s directions on several occasions, including providing credit to customers contrary to directions, setting higher prices for services than directed, and failing to meet administrative deadlines.

In April 1978, the Respondent’s Board of Directors requested that the church pastor visit Dunlop to address these issues. When the pastor visited Dunlop, he noted several issues with the management of the station, and suggested that if Dunlop attended church more, he might have more success at work. Two weeks later, the Respondent’s Board of Directors terminated Dunlop’s employment. Dunlop filed a complaint, alleging that he had been terminated because of his religious practice, contrary to then section 3(1) of the Act (now section 4(1)).

Decision: The Board found that there had not been a violation of the Act. While it noted that the pastor had improperly discussed Dunlop’s religious practices in relation to his employment, the pastor was not influential in the decision to terminate him. There was no evidence that the Respondent’s Board of Directors or its members improperly dismissed Dunlop because of his religion. Rather, there was significant evidence that he was terminated because of insubordination and conflict with administrators. Accordingly, the Board dismissed the complaint.

Board of Inquiry (Teed), Decision dated November 9, 1978, 1978 CanLII 3391 (NB BHR), https://canlii.ca/t/jfftx  

Facts: From 2001 until the end of the 2008, the women’s hockey team of the Respondent, University of New Brunswick (UNB), was included in the university’s sports program. In 2008, UNB reclassified several varsity sports teams to “competitive sports clubs,” including the women’s hockey team, which resulted in lower funding and less support from UNB for the women’s team. The men’s team was not affected. Sylvia Bryson, a UNB student and member of the women’s hockey team, filed a complaint, alleging that UNB’s reclassification of the team, in addition to consistent lack of funding for the women’s team compared to the men’s team from 2004-2008, was sex-based discrimination contrary to the Act. Janis Thompson, a volunteer for the women’s team, and Don Davis, the head coach, also filed similar complaints.

Decisions:

• UNB v NB Human Rights Commission and New Brunswick (PETL), NBKB nos. F-M-8-11, F-M-9-11, and F-M-10-11, Decision on Judicial Review of the referral to a Board of Inquiry dated April 29, 2013, 2013 NBQB 148 (CanLII), https://canlii.ca/t/fxflk

UNB filed an application for judicial review against the Commission’s referral of Bryson, Thompson, and Davis’s complaints to the Labour and Employment Board (LEB). UNB argued that the Commission had breached the obligations of procedural fairness and had incorrectly referred the complaints to the LEB, and that the complaints should be dismissed. The Court of King’s Bench found that the Commission had fulfilled its procedural obligations, but that Thompson and Davis’s complaints should have been dismissed, as they had not personally suffered any discrimination, as required by Section 17 of the Act. The Court quashed Thompson and Davis’s complaints but allowed Bryson’s complaint to proceed to the LEB.

• Board of Inquiry HR-007-10, Labour and Employment Board (Breen), Final Decision dated March 2, 2016, 2016 CanLII 10131 (NB LEB), https://canlii.ca/t/gnkv4

The Board held that the Respondent had discriminated against the Complainant. The Board noted the disparity in dedicated resources available to the Women’s Varsity Hockey Team (WVHT) compared to the Men’s Varsity Hockey Team (MVHT), as the women’s team did not have access to facilities and equipment, or to dedicated full-time coaching, physical therapy, and medical personnel, comparative to the men’s team. The University stressed that metrics related to the team’s morale, competitiveness, and recruitment value to the University were considered in the decision to cut funding for WVHT, but the Complainant argued that those metrics were impacted by the lack of resources available to women’s sports. The Board held that UNB could not justify the discrimination, as it had failed to consider alternatives, and had increased the funding for the MVHT following the elimination of the women’s sports program. The Board ordered that the WVHT be reinstated and that the University fund or facilitate financial support for it equitably with the MVHT. It also ordered the University to pay compensatory damages to the complainant.

Facts: According to General Regulation 84-20 under the Medical Services Payment Act (Regulation), provincial funding was to be denied for abortion services unless these were performed in a hospital by a gynecologist, and the abortion was certified as medically necessary by two physicians. Complainant A.A., a female physician and sexual healthcare provider, alleged that the Regulation was discriminatory against her, because of the “procedural hoops” required to access provincially funded abortions for her patients, and that it was discriminatory against women who choose to have an abortion. A.A. filed a complaint against the Respondent, the New Brunswick Department of Health, alleging sex-based discrimination in services.

Decision: The Respondent argued that the Board did not have jurisdiction to hear the complaint as the Act did not allow complaints of a “representative” nature or complaints filed on behalf of a class of persons; further, the respondent argued that the complainant was not an aggrieved person as defined in Section 17 of the Act, as she was not personally impacted by any limitations placed on abortions by the said Regulations.

The Board agreed that the Act did not allow complaints on behalf of a class of persons, unless they were filed by a person belonging to that class who had been aggrieved by the Regulation. Since, the complainant had not been personally denied an abortion due the Regulation, that part of the complaint was denied.

However, the Board found it appropriate to allow a full hearing to determine whether the complainant had suffered a denial of services under Section 5 of the Act due to the Regulations. That part of the complaint, therefore, was allowed to proceed.

AA v New Brunswick (Health Department), 2011 CanLII 35360 (NB LEB)

Facts: The Complainant, Hooper, was hired to work for the Respondent Foriere at the Respondent, Dante’s Dance Club Inc., which was owned by Foriere. When she was hired, the dance club was not yet established, so Hooper did various other tasks for Foriere. Throughout her employment, the Respondent repeatedly introduced Hooper to contractors and others as “the stripper” and as “his girlfriend.” The Complainant asked him to stop making these references multiple times, but he did not.

In February 2003, Foriere entered and locked a room that the Complainant was working in and attempted to force the Complainant to hug and kiss him. The Complainant refused, pushed him away, and left. Foriere terminated her employment. Hooper filed a complaint against the Respondents, alleging that Foriere and his company had discriminated against her by sexually harassing her in the course of her employment.

Decision: The Board found that the Respondent Foriere sexually harassed the Complainant. The Act defines sexual harassment as sexual conduct or comments that are reasonably known to be unwelcome, and this standard was clearly met by Foriere’s actions. While Foriere denied each of Hooper’s allegations, those allegations were corroborated by other witness testimonies. However, because Dante’s Dance Club was not yet established at the time of the alleged incidents, the Board found that only Foriere had engaged in discrimination. Accordingly, the Board ordered the Respondent Foriere to pay the Complainant $2,130 in lost wages and $5,000 in general damages; write a letter of apology; and undergo a human rights training program on sexual harassment.

Board of Inquiry HR-003-05, Labour & Employment Board (Filliter), Decision dated November 16, 2006, 2006 CanLII 63630 (NB LEB), https://canlii.ca/t/22h2w

The case was closed through mediation and withdrawn before the merits were heard.

Board of Inquiry HR-001-01, Labour and Employment Board (MacPherson), 2001, unpublished 

Facts: The Complainant, Green, was admitted to the Respondent Saint John School of Nursing on a probationary basis. He was subject to various probation conditions that required satisfactory performance in academic classes and clinical placements. After failing to meet those conditions, Green was dismissed from the school.

Green filed a complaint, alleging discrimination based on sex in the provision of services based on the Respondent’s failure to prevent differential treatment of male students in obstetrics. Green alleged that male nursing students in obstetrics were expected to work with a female supervisor, which was discriminatory based on sex. He also contended that the comments of another student and an instructor about condom use during a sex education class amounted to sexual harassment. Lastly, Green contended that he had been assaulted by a female student during a classroom exercise when she placed her hand over his mouth to prevent him from answering a question. He alleged that his dismissal was the result of continuing discrimination as shown by these incidents.

Decisions:

• Board of Inquiry HR-003-00, Labour and Employment Board (McGinley Blacquier, Quinn), Decision dated November 29, 2001, [2001] NBHRBID No. 1

The Board declared that the complaint was without merit and dismissed it in its entirety. First, while the treatment of male and female students in obstetrics did differ, it did not violate the Act as it was necessary to ensure the comfort level of patients. With respect to the second and third aspects of the complaint, the Board dismissed them as frivolous and found that they did not engage the Act, as they either constituted normal classroom sex education discussions, or harmless play. Accordingly, neither Green’s dismissal, nor the other activities of the Respondent were discriminatory.

• Court of Queen’s Bench, no. S/M/16/02, Decision on judicial review dated June 28, 2002, 2002 CanLII 47436 (NB KB), https://canlii.ca/t/1t9zh

Green applied for judicial review of the Board’s decision. The Court of Queen’s Bench dismissed the application, finding that the Board had been correct in its application of the Act. The Court reiterated that Green had been dismissed due to the requirements of the nursing program and not due to unlawful discrimination.

Facts: In 1980, the Respondent King’s Landing Corporation (King’s Landing) adopted a pay scale whereby seasonal workers would begin at a starting pay level and receive pay raises for each year of returning service, up to five years. Accordingly, all new female seasonal employees in 1984 and 1985 were hired at the starting pay level, irrespective of previous work experience elsewhere. However, during the same years, several new male employees were hired at higher pay levels, and the pay of several other male employees was increased beyond what would normally be permitted based on the 1980 pay scale. Female workers were denied these pay increases. Further, King’s Landing took cost reduction measures in 1985 that allegedly impacted some female employees disproportionately compared to male workers.

A total of 55 complaints were filed against the Respondent by its female employees, alleging that the employer had engaged in discrimination based on sex throughout 1984 and 1985.

Decision: The Board found that the Respondent had discriminated against the Complainants based on sex by failing to pay the female employees equally to male employees in similar positions. The Respondent conceded that the Complainants had established prima facie discrimination, but it submitted that accommodating the female employees would lead to undue hardship for the employer, based on financial considerations. The Respondent argued that due to its financial situation, which had led to operational cost reductions in 1985, it would not be possible to grant pay increases to female employees similar to those given to its male workers.

The Board did not accept this argument and noted that the Respondent had failed to establish undue hardship based on analysis of its financial statements. The Board also noted that financial hardship had not been considered when establishing wages for male workers. Accordingly, the Board found that the Respondents discriminated against the Complainants by applying an unequal payroll policy and by failing to satisfy its legal duty to accommodate up to the point of undue hardship. It ordered the Respondent to pay back wages to each Complainant, according to highest comparative pay scale for their positions during the 1984 and 1985 seasons. The Board also ordered the Respondent to pay $100 in damages to each Complainant.

Board of Inquiry (Mungall), Decision dated November 18, 1986, 1986 CanLII 6559 (NB BHR), https://www.canlii.org/t/jdx6v

Facts: The Complainant, Newman, was employed by the Respondent School District No. 8 as a casual bus driver. She was the most senior person on the district’s casual bus driver staff. In November 1983, Newman applied for a full-time driver position with the Respondent School District, but she was unsuccessful. Newman filed a complaint, alleging that the Respondent had discrimination against her based on the protected ground of sex.

Decision: The Board found that Newman’s sex was not a factor in the hiring process. Rather, the Board noted, based on the testimony of a Commission investigation officer and members of the Respondent’s hiring committee, that a male applicant had been hired to the position due to personal hardship. Accordingly, the Board dismissed the complaint. However, the parties came to settlement of the dispute after the Board’s hearing, under which Newman was hired for the next available full-time position as a school bus driver.

Board of Inquiry (Morris), Decision dated March 15, 1985, [1985] NBHRBID No. 1 Newman v School District No 8, [1985] NBHRBID No 1, [1985] NBHRBID No 1

Facts: The Complainants, Marianne Doherty and Cynthia Meehan, worked as waitresses for the Respondent employer, Lodger’s International (Lodger’s). In March 1981, the Respondent imposed a uniform requirement for women staff, which included high-heeled shoes, pantyhose, and shorts. There was no uniform for male staff. The Complainants worked a number of shifts wearing the required uniform, but they refused to wear the uniform after that because they had been subjected to sexual harassment by customers. Later that week, the Respondent’s manager instructed them that they would have to wear the uniform or they need not return to work. The Complainants filed a complaint alleging discrimination in employment based on sex contrary to then section 3(1) of the Act (now section 4(1)).

Decision: The Board found that the Respondent had violated the Act by imposing additional terms of employment based on sex, and by refusing to employ the Complainants for non-compliance with a sex-based rule. The Board ordered the Respondent to pay $1000 in lost income to the Complainants.

Facts: The Complainant, Joan Bulger, was employed as a doorman for the Respondent, the Royal Canadian Legion Branch No. 4. In May 1977, her employment was terminated, as the president of the Respondent Branch believed that the position was “no place for a lady.” Bulger filed a complaint, alleging that her termination was discriminatory based on sex, contrary to then section 3(1) of the Act (now section 4(1)).

Decision: The Board found that the issue hinged on discrimination based on sex, and that the Complainant had clearly been terminated because she was a woman. Accordingly, it recommended that Bulger be reinstated to her position, treated as any other employee in similar positions, and that the Respondent notify the Commission of any disciplinary action against Bulger for three months. The Commission made a corresponding order.

Board of Inquiry (Teed), Decision dated February 23, 1978, 1978 CanLII 3368 (NB BHR), https://canlii.ca/t/jfc71

Facts: The Complainant, Naugler, was employed by the Respondent New Brunswick Liquor Corporation as a casual store clerk. For the first 14 weeks of her employment, she worked an average of 30 hours a week. However, in the 15th week of her employment, she was assigned only 10 hours of work and was denied additional hours. Further, the Respondent terminated her employment the following week. Naugler called Herman, the Respondent’s district supervisor responsible for personnel decisions, and was told that the Respondent did not need any more full-time women employees. She filed a complaint, alleging that the Respondent had engaged in discrimination based on sex, contrary to then section 3(1) of the Act (now section 4(1)).

Decisions:

• Board of Inquiry (Kerr), Decision dated May 25, 1976, 1976 CanLII 2093 (NB BHR), https://canlii.ca/t/jffrt

The Board found that the Complainant’s sex was a factor in her termination. The Respondent disputed this, arguing that she had been terminated for poor work performance and for failure to carry out her duties. However, the Board noted that the Respondent did not produce evidence to support this as a reason for her dismissal, and the allegations of poor work performance originated only a few weeks before the termination. Further, Herman told a Commission investigator that the Respondent did not wish to have any more women full-time employees, and Naugler would have attained full-time status had she remained employed.

Accordingly, the Board recommended that the Respondent reinstate the Complainant to her position; pay her lost wages for her termination; assign her to a store in Fredericton; write a letter assuring the Commission of its compliance with the Act; inform its employees of the Act’s provisions; and design a program to eliminate discriminatory work practices, subject to the Commission’s supervision. The Commission made a corresponding order.

• Court of Queen’s Bench, Decision on judicial review dated August 24, 1976, 15 N.B.R. (2d) 324

The Respondent filed a judicial review application against the Commission’s order, asking that the order be either quashed in its entirety, or that the parts of the order be set aside, including the parts pertaining to the reinstatement and payment of past wages due to erroneous application of the Act and based on the principles of natural justice. The Court of Queen’s Bench granted the application in part.

The Court allowed the orders regarding the reinstatement in a Fredericton store and lost wages to stand, as the Commission was acting within the types of remedies allowed under the Act. However, the Court quashed the orders regarding informing employees about the provisions of the Act, writing of a letter assuring compliance with the Act, and designing a program to eliminate discrimination. The Court wrote that while the Act allowed those forms of relief, natural justice required further discussion and reasoning to support interference with an employer’s “general managerial policies”, factors that the Commission and Board had not considered.

Facts: The Complainant, Jacqueline MacBean, applied for a position in the administration of the Respondent, the Village of Plaster Rock. There were ten applicants for the position, four women and six men. The Village Council considered the applications and voted on the applications to decide which applications would proceed to interviews. Of the ten applicants, the four men were selected for interviews, while none of the four women applicants were invited for an interview. Subsequently, a man was hired to the position. MacBean filed a complaint, alleging that the Village Council had engaged in discrimination based on sex contrary to then section 3(1) of the Act (now section 4(1) by refusing to interview her and subsequently hire her.

Decision: The Board found that the Respondent discriminated against the Complainant. It considered a Commission investigation officer’s interviews and testimony as pivotal to the complaint. In those interviews, three of the five members of the Village Council stated that the position was best suited to be filled by a man or that it was a “man’s job.” The Board reasoned that because three of the five Council members had sexist views, the Council’s decision not to interview the Complainant was inevitably impacted by considerations of the applicant’s sex. Accordingly, the Board recommended that the Respondent assure the Commission of its compliance with the Act and write a letter of apology to the Complainant. The Complainant did not request monetary damages.

Board of Inquiry (Kerr), Decision dated November 6, 1975, 1975 CanLII 2031 (NB BHR), https://canlii.ca/t/jf7tg

Facts: The Complainant, Stairs, applied for a position at the Respondent, Maritime Co-Operative Services Ltd., and was interviewed. During the interview, representatives of the Respondent told the Complainant that, while she was the best qualified candidate for the position, she would not be hired because she was a woman. She was also told that had she been a man, she would have been hired on the spot. Stairs filed a complaint, alleging that the Respondent had engaged in discrimination based on sex contrary to then section 3(1) of the Act (now section 4(1)).

Decision: The Board found, based on the Complainant’s uncontested testimony, that the Respondent had engaged in discrimination contrary to the Act. It recommended that the Respondent and its managerial staff assure the Commission of its compliance with the Act, write a letter of apology to the Complainant, and pay her $150 in damages.

Board of Inquiry (Webster), Decision dated April 23, 1975, 1975 CanLII 2040 (NB BHR), https://canlii.ca/t/jf7tf

Facts: The Complainant, Robson, was terminated from her job by the Respondent, University of New Brunswick, according to a mandatory retirement provision in the collective agreement between UNB and Canadian Union of Public Employees (CUPE) Local 3339, which required retirement of certain group of employees at the age of 65. Following her termination, Robson’s membership with CUPE Local 3339 was also terminated. Robson filed a complaint of age-based discrimination against UNB, CUPE National Branch, and CUPE Local 3339.

Decision: The Board deliberated on the merits of the complaint, and it found that Robson’s retirement at age 65 came into effect under a bona fide retirement plan, and thereby, it was not discriminatory based on age under the Act, as it was protected by the Act’s section 4(6) exception to age discrimination. The Board, however, did not deliberate on the constitutionality of section 4(6), and set a future date for arguments of the parties on that issue.

Robson v University of New Brunswick Canadian Union of Public Employees, Local 3339, Board of Inquiry HR-002-20, Labour and Employment Board (Mombourquette), merits decision dated May 15, 2023, 2023 CanLII 56187 (NB LEB), https://canlii.ca/t/jxvrw

Facts: The Complainant, Leonard Way, was employed as a full-time school bus driver by the Respondent, School District 10, from 1989 until December 2006, when he turned 65. In December 2006, he was mandatorily retired under a provision of the Pupil Transportation Regulation under the Education Act (Regulation). The Regulation required increased medical testing for bus drivers between the ages of 60 and 65, and barred bus drivers from working past 65. The Complainant had no health conditions and had not been in any accidents. He filed a complaint alleging that the Respondent had engaged in age-based discrimination contrary to the Act.

Decision: The Board found that the Respondent had discriminated against the Complainant. Following the premise that age-based mandatory retirement is only prima facie discriminatory, the Respondent argued that the Regulation passed the Meiorin Test and was based on a bona fide occupational requirement (BFOR). The Board disagreed. The Meiorin Test has three parts: that a discriminatory standard or rule was “adopted in good faith”; that it was adopted for a purpose “rationally connected to the performance of the job;” that it was necessary for that purpose; and it would be impossible to accommodate the employee without imposing “undue hardship” on the employer. The Board accepted the Regulation’s mandatory retirement provision was adopted in good faith to ensure the safe transport of students. The Board, however, disagreed that mandatory retirement was necessary, per the third part of the Meiorin Test, noting that the Regulation already required medical testing and that the complainant was described at the time of his retirement as a “great driver.”The Board also received expert testimony that showed that there was very little evidence to support the assumption that drivers over the age of 65 are more at risk of causing accidents. Because the Regulation failed the Meiorin Test, it was found discriminatory. The Board ordered that Way be reinstated, that the Respondent School District and the Department of Education discontinue age-based mandatory retirement for drivers, and that the Respondents pay $5,000 to Way in general damages.

Board of Inquiry HR-002-08, Labour and Employment Board  (Breen), Final Decision dated February 2, 2011, 2011 CanLII 13074 (NB LEB), https://canlii.ca/t/fkjps

Facts: On September 14, 2004, the St. Anne Nackawic Pulp Company (St. Anne) was petitioned into bankruptcy. St. Anne had a pension plan regime for all of its employees. Pursuant to the terms of the Pension Benefits Act (PBA), the Respondent Office of the Superintendent of Pensions (Superintendent) intervened to administer the wind-up of the employee pension plans. The wind-up was conducted following the terms of Regulation 95-195 under the PBA (Old Regulation), which had the effect of restricting pension benefits to plan members aged 55 and over. Under its terms, former St. Anne employees younger than 55 years old would only be repaid their own contributions.

20 former St. Anne employees filed complaints against the Superintendent, arguing that the Superintendent’s administration of the Old Regulation discriminated against them based on their age. After the complaints were filed, the Old Regulation was retroactively repealed and replaced in December 2005 with a scheme that did not distinguish based on age.

Decisions

• Board of Inquiry HR-002-06, Labour and Employment Board (Filliter), Decision dated December 11, 2008, 2008 CanLII 71435 (NB LEB), [2008] N.B.H.R.B.I.D. No. 5, https://canlii.ca/t/226wp

The Board found that the Superintendent had engaged in discrimination based on age while implementing the terms of the Old Regulation, which used a distinction based on the age of the employees. It noted that the distinction was based on a stereotype that employees who were younger than 55 would be “more employable” than older employees. While the benefits were not actually distributed in a discriminatory manner due to the replacement of the Old Regulation in December 2005, the Superintendent had prepared to implement a discriminatory benefit distribution and communicated with the Complainants to that effect, thereby violating the Act. Accordingly, the Board ordered the Respondent to pay $3000 in general damages to each Complainant.

• Supt. of Pensions v Blair et al., NB Court of Queen’s Bench no. F-M-12-09, Decision on Judicial Review dated September 9, 2009, 2009 NBQB 242 (CanLII), https://canlii.ca/t/25kz9

The Superintendent applied for judicial review of the Board’s decision. The Court of Queen’s Bench upheld the finding of discrimination but quashed the Board’s order of damages as unreasonable. First, on the finding of discrimination, the Court criticized the Board for lack of clarity in the original decision, but it noted that the decision was correct because the Complainants had been denied a pension benefit due to their age. On the matter of damages, the Court emphasized that damages awards must follow from clear reasoning, which the Board had failed to provide. Accordingly, it struck down the damages award while retaining the finding of discrimination

Facts: The Complainant, Melrose Scott, worked for the Respondent, the Potash Corporation of Saskatchewan until June 1, 2004, when he turned 65 and was mandatorily retired. He was terminated pursuant to a mandatory retirement provision in the Respondent’s pension plan. Scott filed a complaint, alleging that the Respondent had engaged in age-based discrimination in employment contrary to the Act.

Decision: This decision concerned what test to apply to determine whether a pension plan that mandated age-based retirement was bona fide. The Commission and the Complainant argued that the Meiorin Test was applicable, which would require that a mandatory retirement provision be adopted in good faith; “adopted for a purpose rationally connected to the performance of the job;” be necessary for that purpose; and that it was impossible for the employer to accommodate the employee without incurring “undue hardship”.

The Respondent submitted that the test set up in Zurich Insurance Co. v Ontario (Human Rights Commission) should be applicable instead. The Zurich approach would only require an assessment whether the pension or retirement plan was “adopted honestly, in the interests of sound business practices,” without a practical alternative, and not to defeat human rights protections. The Board agreed with the Commission, reasoning that Zurich dealt with matters of insurance and not employment, while Meiorin was concerned with employment. Accordingly, it decided that the Meiorin Test should be applied to the Act’s pension plan exemption.

Board of Inquiry HR-004-04, Labour and Employment Board (Filliter), Preliminary Decision dated November 30, 2004, 2004 CanLII 94556 (NB BHR), https://canlii.ca/t/jdx71

Facts: The Complainant, Price, was employed as a police officer by the Respondent, City of Fredericton (City). In August 1998, Price sustained a serious workplace injury to his back, and he took medical leave and claimed benefits subject to the Workplace Health, Safety, and Compensation Commission Act. A case worker from the Workplace Health, Safety, and Compensation Commission (WHSCC) met with Price and City representatives to arrange a return-to-work plan whereby Price would return to light duties in August 1999. Price testified that he did not feel ready to return to work, but did not appeal against the medical opinion and return to work decision.

After August 1999, Price had several short-term medical absences due to back pain flare-ups, though his doctors and the WHSCC believed that he had recovered enough to return to work. In February 2000, Price met with the Respondent Chief of Police (Chief) and asked for continued light duties at work, despite being medially cleared for fulltime work and duties by this time. Alternatively, Price asked for a $10,000 retirement allowance, which the Chief requested from the City. Price was on medical or vacation leave for much of the period between February and August 2000, and his Police Association representative negotiated a favorable retirement agreement with the City during that time. In August 2000, he retired under an agreement negotiated with the Police Association (Association) and the City. After retiring, Price filed a complaint, alleging that the Respondents, the City of Fredericton, the Chief of Police, and the Police Association, discriminated against him by failing to accommodate his physical disability and age, which led to his resignation.

Decisions:

• Board of Inquiry HR-001-03, Labour and Employment Board (Filliter) Interim Decision dated July 10, 2003, 2003 CanLII 89424 (NB BHR), https://canlii.ca/t/jdx79

The Respondents made several preliminary objections to the Board’s jurisdiction, including that it had no jurisdiction to consider police misconduct complaints, which are subject to the Police Act, and that the complaint should either be considered as a work grievance subject to the Police Association Collective Agreement, or a complaint against the individual President of the Police Association, subject to the Police Act. Further, the Association argued that because the complaint alleged only a violation of section 3(1) of the Act (discrimination by an employer), and not section 3(3) (discrimination by a union), it was not a party to the complaint.

In response, the Commission and the Complainant motioned to amend the complaint to include section 3(3). The Board dismissed each preliminary objection, recalling that human rights legislation prevails over contracts and other legislation, absent explicit legislative intent that another piece of law should prevail. Accordingly, given a conflict between the Human Rights Act and the Police Act’s conflict resolution provisions, the Human Rights Act prevailed. The Board granted the motion filed by the Commission and the Complainant, finding that the Complainant clearly intended to file against the Association despite the failure to reference section 3(3) in the original complaint submission.

• Board of Inquiry HR-001-03, Labour and Employment Board (Filliter), Decision dated January 21, 2004, 2004 CanLII 66255 (NB LEB), https://canlii.ca/t/22h2r

The Board considered several preliminary issues before deciding on the merits of the complaint. At the outset, it noted the withdrawal of the complaint against the Association, as it was settled before the merits were heard. The Complainant did not withdraw the matter against the City and the Chief, but the Association ceased to be a Respondent.

On the merits, the Board found no discrimination. It considered that Price had retired voluntarily rather than being terminated, and that the Respondents had reasonably accommodated Price by participating in the WHSSC return to work plan. There was no evidence that Price had advised the Respondents that a continuing back injury was causing an inability to fulfill his work duties, and from August 1999 forward, his family doctor and the WHSSC believed that he had sufficiently recovered. Accordingly, the Board decided that the Respondents were not incorrect to rely on the WHSSC’s advice and had not violated their duty to accommodate, and so dismissed the complaint.

Facts: In June 1981, the Complainant, Kuun, was mandatorily retired from his position as a professor at the Respondent University of New Brunswick (UNB). His retirement was pursuant to a clause in the UNB collective agreement which mandated a retirement age of 65 for professors. In 1981, Kuun filed a complaint with the Commission regarding the mandatory retirement, which was settled through mediation, and Kuun agreed to the university’s offer to extend his employment by two years and to retire at age 67.

The two years expired in June 1983 and Kuun was due to retire under the 1981 settlement agreement. However, Kuun filed a second complaint with the Commission, alleging that his mandatory retirement was discrimination based on age, contrary to then section 3(1) of the Act (now section 4(1). The June 1983 complaint was referred to a Board of Inquiry.

Decisions:

• Board of Inquiry (Goss), Decision dated October 26, 1983, 1983 CanLII 4757 (NB BHR)

The Board dismissed the complaint because Kuun’s mandatory retirement was not unlawful, and because Kuun was prevented from bringing the 1983 complaint due to the settlement agreement. First, on the complaint’s merits, the Board noted that while contracts cannot supersede the Act’s protections, section 3(6) (now section 4(6)) of the Act has exceptions for bona fide retirement plans in collective agreements. Because Kuun was retired under a bona fide retirement plan, the discrimination fell within the Act’s exception and was not unlawful. Second, the Board found that Kuun was estopped from bringing the 1983 complaint, as he had earlier consented to a settlement on the same matter. Accordingly, it recommended that the Commission dismiss the complaint, and the Commission made an order to that effect.

• Court of Appeal, Decision on judicial review dated August 29, 1984, 1984 CanLII 2940 (NB CA), https://canlii.ca/t/gb96b

Kuun applied for judicial review of the Board’s recommendation and the Commission’s order to dismiss his complaint. The Court of Appeal upheld the Commission’s order, emphasizing that while it is not justified for parties to contract out of the Human Rights Act’s protections, the 1981 settlement agreement was made according to the Act’s provisions. Because Kuun had agreed to that settlement voluntarily to retire in 1983, he was estopped from bringing the present complaint. 

Facts: The Complainant, Armand Buggie, was employed by the Respondent City of Moncton from 1972 until the fall of 1981, when he turned 65 and was terminated due to his age. Buggie filed a complaint against the City of Moncton, alleging that his termination was discriminatory based on the age protections of the Human Rights Act.

Decision:  The Board found that the Respondent had violated the Act. The Respondent did not dispute that Buggie’s age was the only reason for his termination, but it argued that the termination was subject to the Act’s exemption for mandatory retirement under its bona fide pension plans provisions (then section 3(6), now section 4(6)). However, Buggie was not a member of any pension plan with a mandatory retirement provision.

Accordingly, the Board recommended that Buggie be reinstated to his employment with the Respondent, that he be given back pay, and that the Respondent pay $1000 in costs. The Commission made an order to give force to the recommendations, based on the legislated process for such orders at that time.

Board of Inquiry (MacGregor), Decision dated May 8, 1984, 1984 CanLII 5091 (NB BHR), https://canlii.ca/t/jdx70

Facts: The Complainant, Charles Little, was employed as a crane operator by the Respondent, Saint John Shipbuilding and Dry Dock Company, from 1931 until 1977, when he was mandatorily retired at age 65 under a workplace policy. Little filed a complaint alleging that the Respondent had engaged in age-based discrimination contrary to then section 3(1) of the Act (now section 4(1)).

Decisions:

• Board of Inquiry (Bruce), Preliminary Decision dated October 9, 1979, [1979] NBHRBID No. 1

The decision deliberated whether a Board of Inquiry could hear evidence related to the existence of a bona fide occupational qualification (BFOQ). At the time, section 3(5) of the Act contained a provision that gave the Commission exclusive jurisdiction to “determine” the existence of BFOQs. The Board decided that it could hear that evidence and make recommendations to the Commission to determine the existence of a BFOQ, in line with the legislated mandate of Boards of Inquiry at the time.

• Board of Inquiry (Bruce), Decision dated January 15, 1980, 1980 CanLII 3657 (NB BHR), https://canlii.ca/t/jdx6t

The Board found that Little had been retired based on his age. It considered letters from the Respondent’s management staff that confirmed this fact, and that also acknowledged that the Complainant was in excellent health at the time of his termination. The Respondent argued that Little’s retirement was pursuant to a BFOQ and necessary to ensure safety in the workplace given the use of heavy machinery at the workplace and the increased likelihood of health risks among older persons. The Board refused to recognize this qualification as bona fide based on the argument that individual health varies among older populations, and because the Respondent had no concerns regarding the Complainant’s health when he was mandatorily retired. The Board recommended that Little be reinstated to his former job if deemed physically fit, or he be adjusted to an alternative job if considered not fit for the existing position, and that he be awarded special damages for lost pay. The Respondent was also directed to consult with the Commission to develop anti-discrimination workplace policies.

Facts: The individual Respondent, Dugay, was the sole owner of the  Respondent company, Fundy Roofing Ltd. The Complainant, East, had worked seasonally for the Respondents from 2004 until 2017, when he fell off a ladder while at work and sustained head and spinal cord injuries. After he applied for worker’s compensation and participated in WorkSafeNB rehabilitation programs, his case manager at WorkSafeNB and physician advised East to return to work with light duties and not climb ladders to avoid additional injury.

When East returned to work, Respondent Dugay belittled him in front of coworkers about his physical condition and assigned him to heavy roofing duties despite the medical advice. East was laid off at the end of his 2018 seasonal contract, and Dugay refused to rehire him or to discuss a return-to-work plan. East filed a complaint alleging employment discrimination based on physical disability.

Decision: The Board found that the Respondents discriminated against the Complainant based on physical disability, because while the Respondent had rehired East every year from 2004 until 2019, they refused to hire him when he developed a physical disability. The Board ordered Dugay to take human rights training on the duty to accommodate and pay $10,000 in general damages to the Complainant.

Board of Inquiry HR-002-23, Labour and Employment Board (LeBlanc), Decision dated 13 December 2023, 2023 CanLII 128825 (NB LEB), https://canlii.ca/t/k27pt

Facts: The Respondent, City of Dieppe, constructed a roundabout at a busy intersection in the city, replacing a four-way stop. The Complainant, Bourque-Coyle, who was legally blind, frequently used the intersection when it was a four-way stop. After the roundabout’s construction, she found it difficult to use the intersection and filed a complaint alleging discrimination in services based on physical disability.

Decision: The Respondent made a submission to bring the chief designer as an independent expert witness to testify on the roundabout’s value for road safety, speed control, and traffic management. The Board found that the suggested expert did not qualify as independent, because he intended to continue working for the City of Dieppe and thus would be potentially biased in favour of the employer.

The complaint was settled before the Board’s final decision was reached. The City of Dieppe removed the impugned roundabout

Board of Inquiry HR-003-13, Labour and Employment Board (Bladon), preliminary ruling dated February 12, 2014, 2014 CanLII 9590 (NB LEB), https://canlii.ca/t/g62xf

Facts: The Complainant, John Downey, was a motor vehicle body worker and painter employed by the Respondent, Keenan Truck Repair, which was owned by Joe Keenan. Downey took a medical leave in October 2008 to recover from a repetitive stress injury caused by his work. During his absence, Keenan began outsourcing Downey’s duties. In June 2009, Keenan Truck Repair tore down the Complainant’s workspace to expand other facilities, because it was not clear when Downey would return to work. In early October 2009, the Respondent terminated Downey’s sick leave benefits due to his one-year absence from the workplace. Downey was cleared to return to work in late November, but he was laid off due to the elimination of his position and workspace. Keenan offered him similar employment in inventory or as a mechanic, but Downey declined those jobs as they did not match his training. He filed a complaint alleging that the body shop’s closure, the termination of sick leave benefits, and the termination of employment constituted employment discrimination based on physical disability.

Decision: The Board dismissed the complaint. On the first question, it found that the complaint could not include the first two alleged incidents, because the Complainant conceded that he was not aware if his injury was a factor in those decisions until October 2013. On the second question, the Board found that the three incidents were not similar enough to qualify as continuing violations. On the final question, the Board noted that the Respondent had offered him two other jobs before the complaint was filed, so the employer had done its due diligence and the Complainant did not suffer physical disability discrimination in employment.

Board of Inquiry HR-002-13, Labour and Employment Board (Bladon), Decision dated February 14, 2014, 2014 CanLII 9593 (NB LEB), https://canlii.ca/t/g62xn

Facts: The Complainant, Taylor, was diagnosed with insomnia, panic disorders, anxiety, and depression. The Complainant went on medical leave from her job with the Respondent, McCain Foods, in October 2004 to mitigate her symptoms. She returned to work on March 16, 2005, but went on further leave following worsening symptoms. The Respondent terminated her employment in April 2005. Taylor filed a complaint alleging that the Respondent had engaged in discrimination based on mental disability contrary to the Act.

Decision: The Complainant applied to amend her complaint to include physical disability in addition to mental disability. The Complainant argued that the addition would better reflect the allegations, as insomnia may fall within the Act’s definitions of either physical or mental disability, and the change would not impact the substantive matter at issue in the complaint. The Board agreed and granted the application.

This case was closed before the merits were heard.

Board of Inquiry HR-006-07, Labour and Employment Board (Bladon), Interim Decision dated January 27, 2010, 2010 CanLII 6529 (NB LEB), https://canlii.ca/t/283b9

Facts: The Complainant, Price, was employed as a police officer by the Respondent, City of Fredericton (City). In August 1998, Price sustained a serious workplace injury to his back, and he took medical leave and claimed benefits subject to the Workplace Health, Safety, and Compensation Commission Act. A case worker from the Workplace Health, Safety, and Compensation Commission (WHSCC) met with Price and City representatives to arrange a return-to-work plan whereby Price would return to light duties in August 1999. Price testified that he did not feel ready to return to work, but did not appeal against the medical opinion and return to work decision. After August 1999, Price had several short-term medical absences due to back pain flare-ups, though his doctors and the WHSCC believed that he had recovered enough to return to work.

In February 2000, Price met with the Respondent Chief of Police (Chief) and asked for continued light duties at work, despite being medially cleared for fulltime work and duties by this time. Alternatively, Price asked for a $10,000 retirement allowance, which the Chief requested from the City. Price was on medical or vacation leave for much of the period between February and August 2000, and his Police Association representative negotiated a favorable retirement agreement with the City during that time. In August 2000, he retired under a favorable agreement negotiated with the Police Association (Association) and the City.

After retiring, Price filed a complaint, alleging that the Respondents, the City of Fredericton, the Chief of Police, and the Police Association, discriminated against him by a failure to accommodate his physical disability and his age, which led to his resignation.

Decisions:

• Board of Inquiry HR-001-03, Labour and Employment Board (Filliter) Interim Decision dated July 10, 2003, 2003 CanLII 89424 (NB BHR), https://canlii.ca/t/jdx79

The Respondents made several preliminary objections to the Board’s jurisdiction, including that it had no jurisdiction to consider police misconduct complaints, which are subject to the Police Act, and that the complaint should either be considered as a work grievance subject to the Police Association Collective Agreement, or a complaint against the individual President of the Police Association, subject to the Police Act. Further, the Association argued that because the complaint alleged only a violation of section 3(1) of the Act (discrimination by an employer), and not section 3(3) (discrimination by a union), it was not a party to the complaint. In response, the Commission and the Complainant motioned to amend the complaint to include section 3(3).

The Board dismissed each preliminary objection, recalling that human rights legislation prevails over contracts and other legislation, absent explicit legislative intent that another piece of law should prevail. Accordingly, given a conflict between the Human Rights Act and the Police Act’s conflict resolution provisions, the Human Rights Act prevailed. The Board granted the motion by the Commission and Complainant, finding that the Complainant clearly intended to file against the Association despite the failure to reference section 3(3) in the original complaint submission.

• Board of Inquiry HR-001-03, Labour and Employment Board (Filliter), Decision dated January 21, 2004, 2004 CanLII 66255 (NB LEB), https://canlii.ca/t/22h2r

The Board considered several preliminary issues before deciding on the merits of the complaint. At the outset, it noted the withdrawal of the complaint against the Association, as it was settled before the merits were heard. The Complainant did not withdraw the matter against the City and the Chief, but the Association ceased to be a Respondent. On the merits, the Board found no discrimination. It considered that Price had retired voluntarily rather than being terminated, and that the Respondents had reasonably accommodated Price by participating in the WHSSC return to work plan. There was no evidence that Price had advised the Respondents that a continuing back injury was causing an inability to fulfill his work duties, and from August 1999 forward, his family doctor and the WHSSC believed that he had sufficiently recovered. Accordingly, the Board decided that the Respondents were not incorrect to rely on the WHSSC’s advice and had not violated their duty to accommodate, and so dismissed the complaint.

Facts: The Complainant, Daigle, was employed by the Respondent Griffin’s Pub under supervision of the Respondent manager, Peterson, beginning in March 2000. On April 5th, 2000, the Complainant suffered abdominal pains and cramping while at work, and left work early at Peterson’s suggestion. On April 20th, 2000, the Complainant went to a hospital emergency room before a work shift due to similar cramping. Peterson terminated her employment the following week and stated that her termination was due to “lack of dependability” resulting from her illness. Daigle filed a complaint alleging that the Respondents had terminated her employment because of a perceived physical disability, contrary to the Act.

Decisions:

• Board of Inquiry HR-002-02, Labour & Employment Board (Lawson), Decision dated October 20, 2003, 2003 CanLII 64198 (NB LEB), https://canlii.ca/t/22h2s

The Board decided that while there was no doubt that Daigle was terminated because of a perceived physical disability, as her symptoms did not rise to the level of “severity, permanence, and persistence” to qualify as a physical disability for the purpose of the Act. The Board relied on the Supreme Court of Canada decision in Quebec v Boisbriand (2000) to argue that while the Act defined physical disability to include “any degree of disability [including as] caused by illness, while the Act defined physical disability to include “any degree of disability [including as] caused by illness,”  normal ailments are excluded from the meaning of disability under the Act. The Board held that the Complainant’s cramps, though severe, were “more of a normal ailment” than a disability. Thus, though Peterson did believe the Complainant suffered from a disability and terminated her employment for that reason, her termination was not discrimination contrary to the Act because her illness was a “normal ailment.” Accordingly, the Board dismissed the complaint.

• Court of Queen’s Bench no. F/M/2/04, Decision on judicial review dated November 14, 2005, 2005 NBQB 403 (CanLII), https://canlii.ca/t/1m13c

The Commission applied for judicial review of the Board’s decision, asking that the Court of Queen’s Bench quash the dismissal of the complaint. The Court found that the Board had correctly applied the Act and dismissed the Commission’s application.

The case was closed through mediation and withdrawn before the facts and merits could be heard by the Board.

Board of Inquiry HR-001-98, Labour & Employment Board (McGinley), Withdrawal Order dated February 15, 1999, [1999] NBHRBID No. 1 

Facts: The Complainant, Chouinard, had monocular vision, and the Respondent refused to employ him because of the disability. Chouinard filed a complaint alleging discrimination based on physical disability under the Act.

Decision: The decision concerned whether a Board of Inquiry could hear evidence and determine the existence of a bona fide occupational qualification (BFOQ), given an existing provision in the Act that gave the Commission the power to determine whether a BFOQ existed. The Board found that it had the power based on Little v Saint John Shipbuilding and Dry Dock Co., [1979] NBHRBID No. 1, which had held that the Board had the power to “recommend” that a BFOQ be recognized, and a set of legislative amendments in 1985 had expanded the powers of Boards of Inquiry to include final orders.

Board of Inquiry (MacLean), Preliminary decision dated October 29, 1987, [1987] NBHRBID No. 1 

Facts: The Complainant, Barton, sustained an injury to his leg in 1976, resulting in a physical disability. However, Barton was able to stand, walk, and run, despite chronic pain. In 1980, Barton applied for a position as a trainee engineer for the Respondent, New Brunswick Electric Power Commission (NBEPC). As part of the application, Barton underwent a medical examination and a doctor working for the NBEPC reported that he was able to adequately walk, run, and climb to carry out required job duties. Barton was directed to report to an NBEPC facility for training, but he was called into a meeting with NBEPC’s director of employment who told him that he would not be hired because of his disability. When Barton offered to demonstrate his ability, the director declined him that opportunity. Barton filed a complaint, alleging that NBEPC had engaged in discrimination based on physical disability, contrary to then section 3(1) of the Act (now section 4(1)).

Decision: The Board found that NBEPC had discriminated against the Complainant, and it was evident that Barton had been refused employment because of his disability. The Respondent argued that the ability to “walk, stand, and climb” was a bona fide occupational qualification, and that Barton had been denied employment pursuant to this qualification requirement. However, Barton had not been found medically incapable of performing these functions, and the medical examination had declared him capable of these functions. Accordingly, the Board ordered the Respondent to pay Barton lost wages and general damages for the discrimination.

Board of Inquiry (Stanley), Decision dated September 2, 1981, 1981 CanLII 4376 (NB BHR), https://canlii.ca/t/jdx6g

Facts: The Complainant, Martin, had a diagnosis of major depression (recurrent and adjustment disorder) and worked for the Respondent, E.C. Wellness Centre. Martin had various duties, including warehouse and order preparation tasks. Following stressful conditions at work, her anxiety and depression disorders exacerbated, and she took a medical leave. When Martin returned to work on February 1, 2018, her duties had been drastically reduced and subjected to a new daily quota. She met with her manager that day, who told her that “another sick leave would be a terrible burden on the Respondent,” and asked a series of improper questions about her condition. Her employment was terminated the following day. Martin filed a complaint of employment discrimination based on mental disability.

Decision: The Board found that the Respondent had discriminated against the Complainant based on mental disability, because the Complainant was fired following a medical leave without any performance-based reasons. The Board also noted that the manager had asked a series of inappropriate questions about the Complainant’s disability, including whether it would be a “recurring issue.” The Board ordered the Respondent to pay $12,852 in special damages, and $12,500 in general damages to the Complainant.

Board of Inquiry 001-21, Labour and Employment Board (Filliter), Decision, 2021 CanLII 60990 (NB LEB), https://canlii.ca/t/jgzh9

Facts: The Complainant, Taylor, was diagnosed with insomnia, panic disorders, anxiety, and depression. The Complainant went on medical leave from her job with the Respondent, McCain Foods, in October 2004 to mitigate her symptoms. She returned to work on March 16, 2005, but went on further leave following worsening symptoms. The Respondent terminated her employment in April 2005. Taylor filed a complaint alleging that the Respondent had engaged in discrimination based on mental disability contrary to the Act.

Decision: The Complainant applied to amend her complaint to include physical disability in addition to mental disability. The Complainant argued that the addition would better reflect the allegations, as insomnia may fall within the Act’s definitions of either physical or mental disability, and the change would not impact the substantive matter at issue in the complaint. The Board agreed and granted the application.

This case was closed before the merits were heard.

Board of Inquiry HR-006-07, Labour and Employment Board (Bladon), Interim Decision dated January 27, 2010, 2010 CanLII 6529 (NB LEB), https://canlii.ca/t/283b9

Facts: The Complainant, A.B., was employed by the Respondent, Brunswick News Inc., in various positions from 1965 until 2002. In 2000, the Complainant attempted to commit suicide, and was hospitalized and diagnosed with major depressive disorder, a mental disability within the scope of the Act. Prior to this incident, he was working as a circulation supervisor, but following his return to work, he was placed to a lower-level mailroom position in an attempt to fulfill a medical request for a less stressful work environment. The demotion exacerbated his mental distress. A.B. was again hospitalized in late 2000 following another suicide attempt, following which he returned to work in June 2001. He was appointed to a supervisory position in a new telemarketing division. A.B. did not meet performance goals in this position and frequently expressed dissatisfaction with the work. Eventually, he was terminated from the position in June 2002. He filed a complaint in December 2002, alleging that his termination was discriminatory based on mental disability, contrary to the Act.

Decisions:

• Board of Inquiry HR-007-06, Labour & Employment Board (Bladon), Interim Decision No. 1 dated March 27, 2008, 2008 CanLII 16159 (NB LEB), https://canlii.ca/t/1wlcp

This interim decision concerned a motion by the Respondent for the Complainant’s psychologist to produce medical records related to the Complainant’s depression. The Complainant consented to disclosing the records, but the doctor did not. The Board ordered their disclosure.

• Board of Inquiry HR-007-06, Labour & Employment Board (Bladon) Interim Decision No. 2 dated May 21, 2008, 2008 CanLII 29757 (NB LEB), https://canlii.ca/t/1xtv1

This interim decision concerned a motion by the Respondent to stay the complaint for procedural delay. The complaint was originally filed in December 2002, but the processing, investigation, and mediation processes before referral to the Labour and Employment Board took almost four years, followed by another 15 months of pre-hearing evidence production. This resulted in a total five years and nine months between the complaint being filed and the Board’s hearing of its merits. However, the Board decided that the delay would not prejudice the Respondent, as the Respondent had been consistently engaged in the process. The Board dismissed the application to stay the complaint.

Facts: The Complainant, Cudmore, alleged that her minor child with ADHD, “N,” had been discriminated against in the public school system due to a failure to provide reasonable accommodations. N was enrolled in public schools in the Respondent School District 2 from September 1992 until September 1999, when he was enrolled in Landmark East, a Nova Scotia boarding school that specialized in education for students with learning disabilities. Throughout N’s time in the NB public school system, he had somewhat limited success in language and math classes, despite school staff having designed a number of individual learning plans for his benefit. School staff testified that despite the existence of these individual learning plans, which included dedicated tutoring and other District resources made available to the Complainant, the Complainant never used those resources. Similarly, the Complainant had provided only limited information to the school about N’s medical circumstances to assist them in designing his accommodations.

In 1999, the Complainant applied for funding from the Respondent Department of Education for N to attend Landmark East, but it was declined as school staff and psychologists believed that N could be accommodated in public schools, and so sending him to Landmark East would be unnecessary. The Department of Education also noted that the policy of funding student transfers to Landmark East was discontinued by 1998, and the funding was redistributed to the school districts to support other accommodations. Cudmore filed a complaint alleging that School District 2 and the Department of Education (the Respondents) discriminated against N by failing to accommodate his learning disability contrary to the Act.

Decisions:

• Board of Inquiry HR-003-01, Labour and Employment Board (MacPherson), Decision dated August 13, 2003, 2003 CanLII 64199 (NB LEB), https://canlii.ca/t/22h2t

The Labour and Employment Board dismissed the complaint, finding that the Complainant had not established prima facie discrimination. While the documentation regarding the accommodations given to N was “improperly maintained,” the Board found that the school staff had done their best to accommodate N based on the information they had received about his learning disability. Because the Complainant did not establish prima facie discrimination, the Respondents’ duty of reasonable accommodation to the point of undue hardship was not engaged. Accordingly, the Board dismissed the complaint.

• New Brunswick Human Rights Commission v New Brunswick (Dept. of Education), NB Court of Queen’s Bench no. M/M/0088/04, Judicial review of the Board’s ruling to dismiss dated February 25, 2005, 2005 NBQB 90 (CanLII), https://canlii.ca/t/1jtw9

The Commission applied for judicial review of the Board’s decision, arguing that the Board had erred on various points. The Court of Queen’s Bench dismissed the application, finding that the Board’s decision was correct and reasonable, and even if the Commission’s arguments were valid, they would not raise to the standard to prove that the Board’s decision was “unreasonable,” which was the standard required to overturn the Board’s decision.

The case was closed through mediation and withdrawn before the merits were heard.

Board of Inquiry HR-003-99, Labour & Employment Board (McGinley), 2001 (unpublished) 

This case was closed through mediation and withdrawn before the merits were heard.

Board of Inquiry HR-004-99, Labour & Employment Board (McGinley), Withdrawal Order dated February 3, 2000, [2000] NBHRBID No. 1 

Decision: The case was closed through mediation and withdrawn before the merits were heard.

Board of Inquiry HR-002-99, Labour & Employment Board (McGinley), Withdrawal Order dated February 8, 2000, [2000] NBHRBID No. 2

Facts: The Complainant, Neville Tracey, worked for McLellan, the owner of Melanson’s Waste Management (Melanson’s). In early 2002, Tracey asked a coworker, Bishop, on a date, and later, they began a romantic relationship. Bishop was an office manager and was partially responsible for the company’s payroll. In August 2002, the Respondent McLellan learned of Tracey and Bishop’s relationship. He gave an ultimatum that they either end their relationship or one of them would be terminated. A week later, McLellan terminated Tracey’s employment because of his relationship with Bishop. Tracey filed a complaint, arguing that his termination was unlawful discrimination based on marital status, contrary to the Act. Tracey and Bishop were not legally married at the time of his termination.

Decisions

• Board of Inquiry HR-009-06, Labour & Employment Board (Filliter), Decision dated February 21, 2007, 2007 CanLII 71256 (NB LEB), https://canlii.ca/t/22h30

The Labour and Employment Board found that the Respondents had violated the Act. It held that even though Tracy and Bishop were not legally married, their relationship was protected under the ground of marital status. The Board followed the principle that human rights legislation should be interpreted expansively, and it found that to assign marital status protections only for legal spouses would run counter to that principle. Secondly, the Board found that the termination was unlawful discrimination based on marital status. It was clear that the termination was prima facie discriminatory, so the Board applied the Meiorin Test to assess whether the termination was based on a bona fide occupational requirement. The test has three parts: the Respondents must show that a discriminatory rule was “adopted for a purpose rationally related to the performance of the job,”; that it was adopted in a good faith belief that it was necessary; and that the rule was reasonably necessary and included all reasonable accommodations up to the point of undue hardship. On the first part, the Board found that the termination decision was not rationally connected to the job, because if a conflict of interest arose respecting Tracey’s payroll, there were other managers who could cross-check Bishop’s work. On the second part of the test, the Board held that the termination was based on business interests in good faith. On the third part, the Board reiterated that the option to have another manager cross-check Bishop’s work would be a simple accommodation that the employer could provide to avoid conflict of interest risk, and the accommodation would not cause undue hardship. The Board ordered that the Respondents pay $2000 in damages to the Complainant, write a letter of apology, and undergo human rights training.

• 502798 N.B. Inc. v N.B. Human Rights Commission, NB Court of Queen’s Bench, no. S/M/52/07, Decision on Judicial Review dated December 5, 2008, 2008 NBQB 390 (CanLII), https://canlii.ca/t/2323j

McLellan and Melanson applied for judicial review of the Labour and Employment Board’s decision, arguing that the Board erred in considering the Complainant’s relationship as marital status; that it erred in its application of the Meiorin Test; and that it erred in its damages award to the Complainant. The Court of Queen’s Bench agreed with the Board’s finding respecting the marital status determination and prima facie discrimination. Secondly, however, the Court stated that the Board applied the first part of the Meiorin Test incorrectly. The first part of the test is designed to assess a rule’s “general purpose,” not to ask whether there is a less intrusive way to accomplish that purpose, which should be assessed under the third part of the test. The Court upheld the rest of the Board’s application of the Meiorin Test. The Court stated that the general purpose of the termination was to avoid conflicts of interest and disclosure of confidential information between romantic partners. Finally, the Court struck down the order requiring McLellan to undergo human rights training, as it found that he had acted in good faith throughout the process and did not intend to discriminate against the Complainant.

Facts: The Complainants, A.A. and B.B., were same sex partners. In December 1999, they decided to have a child, and B.B. became pregnant through artificial insemination. When the child, C.C., was born, the Complainants decided that the child would take A.A.’s surname to recognize her role as a parent. However, the Respondent New Brunswick Department of Health and Welfare (DHW), responsible for administering the Vital Statistics Act (VSA), refused to register the child with A.A.’s surname, because then-sections 8 and 9 of the VSA did not allow the registration of a child to two parents of the same gender. In February 2002, A.A. applied to adopt C.C. However, the Respondent New Brunswick Department of Family and Community Services (FCS), responsible for administering the Family Services Act (FSA) and adoption services, refused this application because the Complainants were not legally married. As a result, pursuant to then-section 66 of the FSA, A.A. would have to adopt the child as an individual and not as B.B.’s partner, and B.B. would be required to divest her parental rights to allow the adoption. A.A. filed a complaint, alleging that the Respondents DHW and FCS engaged in discrimination based on sexual orientation and marital status in the provision of services contrary to the Act.

Decision: The Board found that the Respondents had engaged in discrimination.  Firstly, with respect to DHW and the Vital Services Act, the Respondent DHW argued that the VSA’s purpose was to ensure the accurate registration of a child’s biological parents. However, the Board noted that the VSA allowed the registration of a mother’s husband as a father or the registration of women who gave birth using a donor egg as mothers without regard to genetic relationships, which undermined the Respondent’s argument. It also followed the precedent of an identical case from British Columbia, Gill v British Columbia (Ministry of Health) (No. 1), [2001], in finding that DHW had discriminated against the Complainants by refusing to allow the birth registration forms to reflect A.A.’s parental role.

Second, the Board found that the Respondent FCS had discriminated against the Complainants by its requirement of a legal marriage before gay or lesbian parents could apply for joint, spousal adoption, given the fact that gay or lesbian partners could not get legally married at that time. The Board drew on several similar cases from Ontario and Nova Scotia to find that, while the prerequisite of legal marriage before spousal adoption was prima facie applied equally, it had a clear adverse effect against gay and lesbian couples who could not marry. Accordingly, the Board ordered the Respondents pay $7,500 to A.A. and $5,000 to B.B. in damages for injury to their dignity and self respect.

Board of Inquiry HR-004-03, Labour and Employment Board (Bladon), Decision dated July 28, 2004, 2004 CanLII 94548 (NB BHR), https://canlii.ca/t/jdx77

Facts: The Complainant, Thorpe, was nominated for the Respondent Mount Allison University’s (Mount A) writer-in-residence program. She was informed that she would be hired for the position, but the program was suspended before she was hired. Thorpe filed a complaint, alleging that Mount A had engaged in employment discrimination based on marital status contrary to the Act. The Commission determined that the complaint was “not without merit” and referred the matter to the Labour and Employment Board for final determination.

Decisions:

• Mount Allison University v Thorpe et al., NB Court of the Queen's Bench no. F/M/55/98, Decision on Judicial Review dated December 15, 1999, 1999 CanLII 32740 (NB KB), https://canlii.ca/t/gb322

Mount A applied for judicial review of the Commission’s referral to the Labour and Employment Board. It argued that the Commission’s “not without merit” finding exceeded its jurisdiction, showed bias toward the Respondent, indicated a failure to conciliate the complaint, and, additionally, that the Commission had failed to properly investigate the complaint. The Court of Queen’s Bench dismissed the application, noting that the Commission can dismiss complaints that are “without merit” under Section 19(2) of the Act. The Board noted that it cannot be said that the Commission violated its authority or showed bias by adhering to its legislated mandate of referring complaints to the Board.

• Mount Allison University v Thorpe, NB Court of Appeal no. 5/00/CA, Appeal from the 1999 Queen’s Bench Decision, 2000 CanLII 49364 (NB CA), https://canlii.ca/t/jdc4r

Mount A appealed the December 1999 Queen’s Bench decision. The Court of Appeal dismissed the appeal, adding that the Commission’s “not without merit” finding simply “expressed the opinion [that this was a complaint] that it was not prepared to dismiss [as without merit].”

• Board of Inquiry HR-001-00, Labour & Employment Board (Couturier), Withdrawal Order dated October 16, 2000, [2000] NBHRBID No. 4

This case was closed through mediation and withdrawn before the merits were heard.

Facts: The Complainant, Terri Henwood, was employed as a casual employee by the Respondent company, Tri-Gil Paving and Construction Limited, which was owned by the Respondent Gillcash. The Respondent company originally hired the Complainant at the request of her husband, Darrell Henwood, a foreman for the Respondent, in early June 1994.

However, the Complainant was laid off without notice in July 1994 after she and her husband were stationed at the same job site. When the Complainant asked the reason for the layoff, the Respondent Gillcash told her that he did not want “a husband and wife working for the same company.” The Complainant filed a human rights complaint, alleging that her employment was terminated because of her marital status.

Decision: The Respondents argued that the Complainant had been dismissed due to a shortage of work and company seniority rules, which stipulated that longer-term employees would be prioritized over short-term workers like Henwood. However, the Board found that the Respondents had violated the Act, as no such rules formally existed and Henwood was immediately replaced following her termination, which undermined the Respondent’s argument that she had been let go due to shortage of work. Additionally, according to Gillcash’s testimony to the Board, the testimonies of other employees, and the Respondents’ correspondence to the Board, there were apparent contradictions regarding the Respondent’s policies and the events leading up to the Complainant’s termination. Accordingly, the Board found that the Complainant’s testimony was more reliable, and that the Respondents had unfairly terminated her employment based on her marital status. The Board ordered the Respondents to pay $5,700 to the Complainant in general damages and compensation for lost wages.

Board of Inquiry HR-001-97, Labour & Employment Board (Lordon), Decision dated September 18, 1997, 1997 CanLII 24853 (NB BHR) https://canlii.ca/t/jdx6x

Facts: The Complainants, A.A. and B.B., were same sex partners. In December 1999, they decided to have a child, and B.B. became pregnant through artificial insemination. When the child, C.C., was born, the Complainants decided that the child would take A.A.’s surname to indicate her role as a parent. However, the Respondent New Brunswick Department of Health and Welfare (DHW), responsible for administering the Vital Statistics Act (VSA), refused to register the child with A.A.’s surname, because then-sections 8 and 9 of the VSA did not allow the registration of a child to two parents of the same gender. In February 2002, A.A. applied to adopt C.C. However, the Respondent New Brunswick Department of Family and Community Services (FCS), responsible for administering the Family Services Act (FSA) and adoption services, refused this application because the Complainants were not legally married. As a result, pursuant to then-section 66 of the FSA, A.A. would have to adopt the child as an individual and not as B.B.’s partner, and B.B. would be required to divest her parental rights to allow the adoption. A.A. filed a complaint, alleging that the Respondents DHW and FCS engaged in discrimination based on sexual orientation and marital status in the provision of services contrary to the Act.

Decision: The Board found that the Respondents had engaged in discrimination.  Firstly, with respect to DHW and the Vital Services Act, the Respondent DHW argued that the VSA’s purpose was to ensure the accurate registration of a child’s biological parents. However, the Board noted that the VSA allowed the registration of a mother’s husband as a father or the registration of women who gave birth using a donor egg as mothers without regard to genetic relationships, which undermined the Respondent’s argument. It also followed the precedent of an identical case from British Columbia, Gill v British Columbia (Ministry of Health) (No. 1), [2001], in finding that DHW had discriminated against the Complainants by refusing to allow the birth registration forms to reflect A.A.’s parental role. Second, the Board found that the Respondent FCS had discriminated against the Complainants by its requirement of a legal marriage before gay or lesbian parents could apply for joint, spousal adoption, given the fact that gay or lesbian partners could not get legally married at that time. The Board drew on several similar cases from Ontario and Nova Scotia to find that, while the prerequisite of legal marriage before spousal adoption was prima facie applied equally, it had a clear adverse effect against gay and lesbian couples who could not marry. Accordingly, the Board ordered the Respondents pay $7,500 to A.A. and $5,000 to B.B. in damages for injury to their dignity and self respect.

Board of Inquiry HR-004-03, Labour and Employment Board (Bladon), Decision dated July 28, 2004, 2004 CanLII 94548 (NB BHR), https://canlii.ca/t/jdx77

Facts: The Complainants, Hill and Brewer, were both gay men and members of a local LGBTQ+ advocacy organization in Fredericton. In 1995, both Complainants requested the then-Mayor of Fredericton, Brad Woodside, to proclaim a weekend in June 1995 as Gay Pride Weekend on behalf of the City Council. The proposed Gay Pride Weekend would include an AIDS memorial, a vigil for discrimination and violence against gay persons, and other community events. The Respondent Mayor refused the request, arguing that he could not make a mayoral proclamation regarding “controversial issues” and that sexual orientation “has no place in city chambers.” Hill and Brewer filed complaints against the Mayor, arguing that his refusal was a denial of a service based on sexual orientation under the Act.

Decision: The Board found that the Mayor had discriminated against the Complainants. The Respondent argued that the Mayor refused to make the proclamation based on a personal preference not to recognize issues that were related to controversial topics, health concerns, “general community activities,” or sexual orientation. However, the Mayor’s decision was untenable because it was not based on a written policy, and the Respondent had made proclamations respecting similar AIDS memorials and community events in the past. The Board found that the Mayor had refused to make the proclamations because of sexual orientation rather than a legitimate reason, thus violating the Act. It ordered that the Mayor consult with the Complainants to design a mutually satisfactory proclamation of Gay Pride Weekend.

Board of Inquiry (Bruce), Decision dated September 17, 1998, 1998 CanLII 29914 (NB BHR), https://canlii.ca/t/jdx6m

Facts: The Complainant, S.W.E., began working under the Respondent B.K. in August 2003. Beginning in October 2003, S.W.E.’s supervisor at work, B.K., made comments that made him uncomfortable, including unwanted romantic and sexual advances. In December 2003, the Complainant informed the Respondent that the continued advances were making him uncomfortable. The Respondent did not stop these advances. In June 2004, the Respondent sexually assaulted the Complainant while they were travelling for a conference. S.W.E. filed a complaint, alleging that the Respondent had engaged in discrimination and sexual harassment contrary to the Act.

Decision: The Board found that the Respondent sexually harassed the Complainant, based on the definition of sexual harassment as sexual conduct or comments that are reasonably known to be unwelcome. The Board found that this standard had been met, as B.K. had engaged in unwanted conduct from October 2003 until June 2004, despite having been told directly that the conduct was unwelcome. It ordered B.K. to pay the Complainant $15,000 in damages.

Board of Inquiry HR-005-06, Labour & Employment Board (Filliter), Decision dated August 23, 2007, 2007 CanLII 37872 (NB LEB), https://canlii.ca/t/1sx81

Facts: The Complainant, Steeves, was employed by the Respondent employer RPK Inc., and worked under the supervision of the individual Respondent, Johnson. Throughout her employment, Johnson made a variety of inappropriate sexualized comments about the Complainant’s body and private life. On May 6, 2005, the Complainant was at work when Johnson touched her on the buttocks without consent. Steeves filed a complaint, alleging that Johnson had engaged in discrimination by sexually harassing her, contrary to the Act.

Decision: The Board held that the Act defines sexual harassment as sexual comments or conduct reasonably known to be unwelcome and that Johnson had clearly engaged in such conduct. Accordingly, it ordered that RPK Inc. pay the Complainant $2000 in general damages.

Board of Inquiry HR-005-07, Labour & Employment Board (Filliter), Decision dated October 16, 2007, 2007 CanLII 49161 (NB LEB), https://canlii.ca/t/1tpq2

Facts: The Complainant, Hooper, was hired to work for the Respondent Foriere at the Respondent Dante’s Dance Club Inc., which was owned by Foriere. When she was hired, the dance club was not yet established, so Hooper did various other tasks for Foriere. Throughout her employment, the Respondent repeatedly introduced Hooper to contractors and others as “the stripper” and as “his girlfriend.” The Complainant asked him to stop making these references multiple times, but he did not. In February 2003, Foriere entered and locked a room that the Complainant was working in and attempted to force the Complainant to hug and kiss him. The Complainant refused, pushed him away, and left. Foriere terminated her employment. Hooper filed a complaint against the Respondents, alleging that Foriere and his company had discriminated against her by sexually harassing her in the course of her employment.

Decision: The Board found that the Respondent Foriere sexually harassed the Complainant. The Act defines sexual harassment as sexual conduct or comments that are reasonably known to be unwelcome, and this standard was clearly met by Foriere’s actions. While Foriere denied each of Hooper’s allegations, those allegations were corroborated by other witness testimonies. However, because Dante’s Dance Club was not yet established at the time of the alleged incidents, the Board found that only Foriere had engaged in discrimination. Accordingly, the Board ordered the Respondent Foriere to pay the Complainant $2,130 in lost wages and $5,000 in general damages, to write a letter of apology, and to undergo human rights training on sexual harassment.

Board of Inquiry HR-003-05, Labour & Employment Board (Filliter), Decision dated November 16, 2006, 2006 CanLII 63630 (NB LEB), https://canlii.ca/t/22h2w

This case was closed through mediation and withdrawn before the merits were heard.

Board of Inquiry HR-002-00, Labour & Employment Board (MacDonald), Withdrawal Order dated October 27, 2000, [2000] NBHRBID No. 5 

The case was closed through mediation and withdrawn before the merits could be heard by the Board.

Board of Inquiry HR-002-98, Labour & Employment Board (McGinley), Withdrawal Order dated April 15, 1999, [1999] NBHRBID No. 2 

The case was closed through mediation and withdrawn before the merits were heard.

Board of Inquiry HR-003-98, Labour & Employment Board (McGinley), Withdrawal Order dated April 15, 1999, [1999] NBHRBID No. 3 

Facts: The Complainant, Daigle, was employed by the Respondent Fredericton Fire Department as a clerk and typist. She worked with the Respondent Hunter, a platoon chief for the Fredericton Fire Department. The City of Fredericton terminated her employment in January 1987 based on unsatisfactory performance. Daigle alleged that the performance issue had arisen due to sexual harassment by the Respondent Hunter, which had resulted in a poisoned work environment. Daigle filed a complaint against Hunter, the Fredericton Fire Department, and the City of Fredericton, alleging that the Respondents had engaged in or failed to prevent sexual harassment, based on then section 7.1 of the Act (now section 10).

Decision: The Board found that Daigle had not adequately established that she had been sexually harassed. While it accepted Daigle’s testimony that the Respondent Hunter had made a number of unwanted, potentially sexualized remarks, it also accepted testimony that Hunter had stopped this behavior when it was clear that it was unwelcome. The Board also noted that Daigle had not reported any sexual harassment while employed by the Respondents, but she only mentioned it after she was terminated. It also noted testimony by other members of the Fire Department that nobody had witnessed or heard about any sexual harassment conduct by Hunter. The complaint was dismissed.

Board of Inquiry (Ruben), Decision dated November 7, 1988, 1988 CanLII 8979 (NB BHR), https://canlii.ca/t/jdx7v

Facts: The Complainant, Rita Belliveau, was employed as a supply bus driver for the Respondent, District No. 13 School Board, throughout 1977 and 1978. In November 1978, Belliveau filed a complaint of discrimination with the Commission. From that date until October 1979, she was called to work only three times and was later terminated. Belliveau filed a complaint alleging reprisal by the Respondent for filing a complaint with the Commission in employment contrary to then section 8 of the Act (now section 11).

Decision: The Board found that the Complainant had been wrongfully dismissed for reprisal due to her complaint with the Commission. The decision turned on the testimony of a witness for the Respondent, who had told multiple people that he had terminated her employment because of her complaint. The Board recommended that the Complainant be reinstated to her position and be paid $500 in damages.

Board of Inquiry (Savoie), Decision dated January 19, 1981, 1981 CanLII 4378 (NB BHR), https://canlii.ca/t/jdx7c