Court clears path for discrimination complaint to proceed to tribunal

A discrimination complaint filed by a former resident of a Cape Breton Mi’kmaq community can now proceed to a tribunal hearing, according to a recently filed Federal Court decision.

Justice Alan Diner has ruled that a decision by the Canadian Human Rights Commission to refer the complaint to a tribunal was “eminently reasonable” despite an objection from the Wagmatcook First Nation.

The ruling comes in the case of Annie Oleson who filed her complaint with the commission in 2014. Oleson alleged that Wagmatcook did not provide her with a barrier-free home, after her request for such in 2013.

As a result, Oleson alleged the band discriminated against her in failing to provide such residential accommodation.

According to the court decision, Oleson was assigned a mini-home in 2007 or 2008 where she resided with her two sons and granddaughter.

Wagmatcook had offered a larger, fully accessible home after the former resident had died but Oleson told the commission she declined the offer because the home was already spoken for by the family of the former resident.

In 2013, Oleson was 85 years old and using a wheelchair and requested a barrier-free home from the band council. Her request was not granted and the following year she filed a complaint with the federal human rights commission.

In December 2016, the commission ruled to refer the case to a full tribunal hearing.

In January 2017, the band filed a request for a judicial review of the commission decision with the Federal Court. Oleson died shortly after the review request was filed.

In its review application, Wagmatcook argued several points including the commission should have dismissed the complaint because it was “plain and obvious” it has no merit.

In his decision, Diner stressed several times that the human rights commission decision to refer matters to a tribunal is highly discretionary. Further, Diner explained, that the commission’s function is to screen, not determine the substance of the complaint.

“When the commission decides that an inquiry is warranted, it undertakes only a limited assessment of the merits of the complaint and its conclusions are not a final determination,” wrote Diner, in his decision.

Diner said the commission correctly adopted an investigative report into the complaint that formed the basis of its decision to refer the matter.

“As a result, reviewing court should be reluctant to intervene at the preliminary, referral stage, before the merits of the complaint have been adjudicated in the administrative process,” said Diner.

“I am satisfied that the evidence before the commission provided it with a reasonable basis for referring the matter to the tribunal. I agree with the conclusion in the report (investigation) that the subject matter of Ms. Oleson’s complaint engages the public interest, which further supports the commission’s decision to refer the complaint to the tribunal,” said Diner.