Appeal directs reporting of settlement agreement involving Aylesford business

The Nova Scotia Court of Appeal has allowed an appeal that will result in the reporting of a restorative agreement reached following a human rights complaint by a former employee of an Aylesford company.

Dewayne Charlton filed a complaint with the Nova Scotia Human Rights Commission on Oct. 31, 2014. Homestead Cheese Sales Inc. of Aylesford had employed him as a truck driver. Charlton suffered a hernia in July 2014 and Holmestead placed him on medical leave.

Charlton had corrective surgery on Aug. 26, 2014. In October of that year, he broached his return to work with Holmestead’s Nick Tziolas.

According to Charlton’s complaint, Tziolas accused him of “doing nothing all summer but lazing around at home instead of coming to work,” and terminated Charlton’s employment. Charlton’s complaint said Holmestead discriminated based on disability.

According to Holmestead, Charlton had been observed doing physical work, from which Tziolas inferred that he was malingering. A written decision from the Nova Scotia Court of Appeal states there has been no trial to determine the accuracy of either version.

In June 2015, the Human Rights Commission appointed Kathryn Raymond as chairwoman of a one-person Board of Inquiry. On Oct. 7, 2015, the commission’s counsel informed Raymond that the parties had agreed to settle the day before on the basis that Holmestead would apologize to Charlton and pay him two week’s pay, $752.08.

When the Board of Inquiry reconvened with the parties and the commission’s counsel on March 15, 2016, Raymond was presented with a written “Restorative Agreement” signed by Charlton, Holmestead and counsel for the commission.

On Sept. 14, 2016, the Board of Inquiry issued a written decision that declined to report the Restorative Agreement. Though the commission’s board of commissioners had approved the Restorative Agreement and the commission’s counsel had signed it, the commission’s chairperson had not yet signed it because she was out of the country.

The Restorative Agreement stated that “the parties have discussed the kinds of communication and policy required to ensure a safe and respectful work environment”; the parties’ conversation “provided education on the obligations of both parties to ensure a respectful work environment”; and Holmestead “agreed to explore ways to ensure the company follows the proper procedures when dealing with employees and conflict.” In the board’s view, this was insufficient to satisfy the “public interest.”

On Oct. 18, 2016, the commission filed a Notice of Appeal, as permitted by the Human Rights Act on a question of law from a Board of Inquiry’s decision.

In a written decision from the Nova Scotia Court of Appeal dated June 20, Judge Joel Fichaud said the Restorative Agreement “satisfied every standard” that Section 34 (5) of the Human Rights Act assigns to the Board of Inquiry.

Fichaud stated that, “The Chair’s refusal to ‘report’ the Restorative Agreement resulted from the misinterpretation of the Board’s powers under s. 34(5). No reasonable construction of s. 34(5), in its statutory scheme and context, permitted the Board to intrude into the merits of the settlement on the bases cited for the Board’s refusal to report the Restorative Agreement.”

“I would allow the appeal, set aside the Board of Inquiry’s decision as unreasonable, and substitute an order that directs the reporting of the Restorative Agreement under s. 34(5) of the Human Rights Act,” Fichaud stated in the written decision.

In handing down his decision, Fichaud would not award costs.