Supreme Court of Canada Refuses To Hear Case

HUMAN RIGHTS COMMISSION--Supreme Court of Canada Refuses To Hear Case

The Supreme Court of Canada will not hear the Nova Scotia Human Rights Commission's appeal of a decision that the commission said raises questions about harassment and diversity in Canadian workplaces.

"We're disappointed," said commission CEO Mayann Francis. "We had hoped the Supreme Court of Canada would provide legal guidance, not just for Nova Scotians but for all Canadian workplaces. The standards have already been established for sexual harassment. We thought this case might help establish clearer guidelines for dealing with discrimination and the cultural differences one finds in a diverse workplace."

The Supreme Court announced today, April 28, that it will not hear an appeal in the case of Dorothy Kateri Moore, of Membertou. The court does not give reasons for dismissal of leave applications.

Ms. Moore filed a complaint with the Nova Scotia Human Rights Commission in 1999, alleging that Trevor Muller, the owner of Play it Again Sports in Sydney, and Ronald Muller, a co-worker, discriminated against her when they referred to her as "kemosabe."

An independent board of inquiry was held into the complaint. The chair of that board of inquiry, David J. MacDonald, ruled in February of 2004 that discrimination did not take place because Ms. Moore had not clearly shown she was offended by the remark.

The Nova Scotia Human Rights Commission appealed the ruling to the Nova Scotia Court of Appeal -- arguing that the independent board had erred by placing an undue burden on the complainant to prove that she found the term offensive.

In October 2004, the Court of Appeal rejected that argument, upholding the independent board of inquiry's decision. Justice David Chipman, writing for the three-member appeal court panel, concluded Ms. Moore had not shown that the term was "notoriously offensive."

Ann E. Smith, legal counsel for the Nova Scotia Human Rights Commission, said the commission had hoped the Supreme Court could clarify that term. "People need to understand what that phrase means in order to determine what is or is not considered acceptable behaviour in the workplace," she said. "What I consider 'notoriously offensive' you may not. We wanted some legal standard that would help people."

Ms. Smith said the Supreme Court does not give explanations for the cases it accepts or denies. "The Supreme Court's refusal to hear the case in no way indicates that the questions we have raised are not worth pursuing. It simply means the issue is not one the Supreme Court wanted to address at this time."

Ms. Francis said that means that the commission will continue to consider other ways of clarifying the parameters.

"Attitudes regarding diversity -- and understanding of the cultural differences in the way that individuals deal with difficulties -- have far-reaching implications for Nova Scotia's racially visible, African Nova Scotian and First Nations communities," she said. "They will impact future immigration patterns and, therefore, the province's economic future. We need to continue to work on this.

"This is about much more than the use of one word. It's about establishing standards that are clear to employers and to employees, standards that protect and encourage diversity and that protect every person's rights under the Human Rights Act."

Copies of the original decision by the independent board of inquiry and the ruling of the Nova Scotia Court of Appeal are available on the commission's website at gov.ns.ca/humanrights/decisions/2004decisions.htm