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Deighan v. Prince Edward Island Unit 2 School Board

Report of the Board of Inquiry concerning complaint filed with the Prince Edward Island Human Rights Commission on behalf of Mrs. Vera Deighan against Unit Two Board of School Trustees of Prince Edward Island

Prince Edward Island Board of Inquiry Under the Human Rights Act R.V. Dalzell

November 20, 1978
(40 paras.)


Table of Contents
Letter of Transmittal
Introduction
Issues before the Inquiry
Hearings - August 4, 1978
August 10, 1978
Reference to the Supreme Court Recovened hearing - November 6, 1978 Appendices:
Appendix A - Letter from the Minister of Labour
Appendix B - Notice of Hearing
Appendix C - Complaint filed with The Human Rights
Commission
Appendix D - Letter to J. Edward Laughlin, dated
March 22, 1978
Appendix E - Letter to J.E. Laughlin, dated April
13, 1978
Appendix F - Letter to Hon. G.A. Proud, dated May
13, 1978
Appendix G - Letter to Ronald V. Dalzell, dated
August 3, 1978
Appendix H - Letter to The Human Rights
Commission, dated August 15, 1978
Appendix I - Factum of Government of P.E.I.
Appendix J - Letter to Ronald V. Dalzell, dated
October 16, 1978
Exhibit 1 - Letter to Ronald V. Dalzell, dated
October 16, 1978
Exhibit 2 - Notice of Reconvened Hearing
Exhibit 3 - Presentation on behlaf of Board of
Trustees, Administrative Unit 2
Exhibit 4 - Brief on Behalf of Human Rights
Commission
Exhibit 5 - Letter from J. Melville Campbell,
dated November 16, 1978
Recommendations

LETTER OF TRANSMITTAL

Charlottetown, Prince Edward Island.
November 15, 1978.

Human Rights Commission of
Prince Edward Island,
68 University Avenue,
Charlottetown, P.E.I.
 
Attention: James R. Kelly, Chairman

May It Please Your Chairman:

      As a Board of Inquiry appointed under the provisions of The Prince Edward Island Human Rights Act, Stats. P.E.I. 1975, Cap. H-12.2 to investigate and seek settlement of the alleged discrimination and complaint filed with the Prince Edward Island Himan Rights Commission on behalf of Mrs. Vera Feighan against Unit Two Board of School Trustees, I submit to the Commission in purusance to section 26 of The Human Rights Act my Report and Recommendations.
 
Ronald V. Dalzell

INTRODUCTION

1      This Board of Inquiry consisting of myself was appointed by the Honourable George A. Proud, Minister of Labour for the Province of Prince Edward Island by letter dated June 28, 1978, attached hereto marked Schedule "A".  I was required to investigate and seek a settlement of the alleged discrimination complaint filed with The Prince Edward Island Human Rights Commission by Mrs. Vera Deighan against School Unit No. 2.  The parties to the complaint are as follows: (a) The Prince Edward Island Human Rights Commission; (b) The Unit Two Board of School Trustees; (c) Mrs. Vera Deighan, the complainant; (d) The Deputy Minister of Justice as an interested party; (e) The Teachers Federation of the Province of Prince Edward Island; and (f) The Deputy Minister of Education.

2      Immediately following my appointment I held a preliminary meeting with the Counsel involved, being Mr. Gerard Mitchell, acting on behalf of The Human Rights Commission and Mrs. Vera Deighan; and Mr. J. Melville Campbell, Q.C., acting on behalf of Unit Two Board of School Trustees to determine if there is any possibility of settlement prior to the matter being published for hearing.  I determined at that point in order to fully investigate and try to determine a possible ground of settlement, it would be necessary to have The Teachers Federation become involved, along with the Deputy Minister of Justice and Deputy Minister of Education.  After some preliminary work had been completed, public hearings were advertised to commence on the morning of the 4th of August, 1978 at the Supreme Court Building in Summerside and to be reconvened on Thursday, the 10th day of August, 1978 in Summerside.  Any person being a party to the complaint, and any person having any interest in the terms of the Board of Inquiry wishing to appear could be present at the time and place published in order that their position may be heard and presented to the Board of Inquiry.  Copies of this advertisement so published in newspapers in Summerside and Charlottetown are attached hereto marked Schedule "B".

3      I had reviewed the complaint filed with The Prince Edward Island Human Rights Commission by Mrs. Vera Deighan, on the 28th day of November, 1977.  Copy of said complaint is attached hereto marked Schedule "C".  [Ed. note:  The following form could not be reproduced online.  Please see paper copy.]

4      I have reviewed the decision of The Human Rights Commission as outlined in the letter to Mr. J. Edward Laughlin, Chairman of the Regional Administrative Unit Two sent by James R. Kelly, Chairman, on March 22nd, 1978.  Copy of said decision is attached marked Schedule "D".  In that particular letter the Commission concluded that the final decision of the Unit Two School Board was clearly a violation of section 11(1)(a) of The Human Rights Act, which states:
 
"No person or agency included in sections 6, 7, 8, 9 and 10 shall discriminate against an individual because of the age of the individual if the individual has attained the age of eighteen years and has not attained the age of sixty-five years."

5      The decision also indicates there are provisions under section 21 of the Act which allows for the Commission to inquire and endeavour to seek effective settlement of the complaint.  The Commission under the Chairperson of James R. Kelly asked the Unit Two School Board for expression of intention within fourteen days of March 22nd, 1978 if there is a possibility of an early settlement.

6      On April 13th, 1978 Chairman James R. Kelly of the Human Rights Commission wrote to E. J. Laughlin as Chairman of Unit Two Board of School Trustees again further explaining the decision of The Human Rights Commission asking for the matter to be reconsidered by the Unit Two Board of School Trustees. A copy of that further explanation and decision is attached marked Schedule "E".

7      Since settlement couldn't be achieved The Human Rights Commission wrote to the Honourable George A. Proud, Minister of Labour on May 31st, 1978 recommending that a Board of Inquiry be set up into this matter to investigate and seek a settlement of the complaint between the parties hereto. That particular letter to the Honourable George A. Proud outlines the various correspondence that has transpired between the parties and all other communications, verbal or written, that have existed between the parties up to that date and clearly outlines the findings of the Commission, being as follows:
 
(a)

School #2 did indeed have no choice but to reduce staff in view of departmental regulations governing response to declines in enrollment;

(b)

Certain staff members were automatically protected from the reduction process because secured in their position through tenure; and

(c)

Mrs.  Deighan was legitimately exposed to the process, but was in the last analysis eliminated (or not rehired) exclusively because of her age.

At this point the Commission was unable to effect a settlement and therefore asked a Board of Inquiry to set up in accordance with section 24(1) of The Human Rights Act. Copy of the letter of May 31st, 1978 is attached hereto marked Schedule "F".

8      After having consulted with the various parties concerned prior to the advertisement of the hearing, and considering section 25(1) of The Human Rights Act that the Board of Inquiry shall conduct a public inquiry into the matter referred to and shall give full opportunity to all parties to present evidence and make representations, it was necessary to have the Public Inquiry to seek and investigate a settlement, and if a settlement was not arrived at on August 4th, 1978, which was the date set for the initial hearing, then the matter would be reconvened on August 10th, 1978 to hear evidence for the purpose of investigating the complaint.

ISSUES BEFORE THE INQUIRY

9      The purpose of the Board of Inquiry as outlined in The Human Rights Act, section 24(1) is to investigate and to seek a settlement of any complaint placed before it.

10      As a result of trying to determine whether or not a settlement was in fact available between the parties, a number of issues arose, one of which was:
 
"In view of sub-section 1(2) of The Human Rights Act, Stats. P.E.I. 1975, C. 72, what is the status of section 11 of the said Human Rights Act in relation to other Statutes of Prince Edward Island, including related regulations, with which it conflicts."

11      This second issue which seems to be paramount and one which had to be answered prior to investigating the complaint and coming up with a recommendation to the Commission, was raised by all Counsel representing the interested parties.  Sub-section 1(2) of The Human Rights Act reads as follows:
 
This Act shall at the expiry of three (3) years from the date of this Act coming into force, be deemed to prevail over all other laws of this province and such laws shall be read as being subject to this Act;...."

Bearing in mind this particular sub-section the issue is whether or not the Unit Two Board of School Trustees which acted in accordance with section 2 of division C, part 1 of the existing Regulations made under The School Act, R.S. P.E.I. 1974, C. S-2 have in fact violated The Human Rights Act.

12      The second preliminary issue was whether or not the complainant was entitled to contribute to The Teachers Superannuation Fund for the remaining years up to the age of sixty-five.

HEARINGS

AUGUST 4, 1978:

13      At the August 4th hearing all parties were present and represented by Counsel, with the exception of Mrs. Vera Deighan who represented herself as the Complainant. Those persons in attendance and who took part in the actual hearing were:
 
J. Melville Campbell, Q.C. - Unit Two School Board Solicitor;
Gerard Mitchell, Esq. - Human Rights Commission Solicitor;
Graham W. Stewart, Esq. - Deputy Minister of Justice;
Lorne Moase Esq. - Deputy Minister of Education;
James Blanchard, Esq.  The Teachers Federation Executive Director;
James R. Kelly, Esq. and Mark Arnold, Esq.- Chairman and Resource Person respectively for Prince Edward Island Human Rights Commission;
Mrs. Vera Deighan - Complainant; and
Leonard Russell,.Esq. - Secretary of Unit Two School Board.

14      The hearings were opened at ten o'clock in the forenoon at the Summerside Supreme Court Building and all Counsel representing the various parties and Mrs. Deighan acknowledged the jurisdiction of the Board of Inquiry and raised no objections to the Inquiry taking place or to myself sitting as the Board of Inquiry.

15      I initially reviewed the complaint of Mrs. Vera Deighan and reviewed the decision of The Prince Edward Island Human Rights Commission as declared in its various letters to the Unit Two School Board.  Under the authority and position that must be taken by the Board of Inquiry at such a hearing, my main role is to seek a settlement of the complaint between these parties.  I questioned Mrs. Deighan to see if there was any possible area of settlement to be arrived at between herself and the Unit Two School Board and she proposed the following terms of settlement:
 
(a)

That the School Board reimburse her for the one year's pay for the school year commencing September 1, 1977 to the end of the school year June, 1978;

(b)

Mrs. Deighan also advised the Board of Inquiry that she would want superannuation payments paid to The Teachers Superannuation Fund in an amount equivalent to three and one-half years in order to allow her to receive full pension benefits from The Teachers Pension Fund, whether or not she was re-employed. Mrs. Deighan emphasized she had approximately three and one-half years go to to receive full pension contributions and after her number of years of service she felt entitled because she was relieved from duty in her opinion because of age.

16      The Board of Inquiry, therefore, had to request from The Teachers Federation whether or not the second part of the solution was possible and whether or not a teacher could in fact contribute to The Teachers Superannuation Fund when they are no longer employed under The School Act in Prince Edward Island and employed by the Province of Prince Edward Island.  The Teachers Federation did not know the particular answer and I undertook to provide to The Teachers Federation an answer as to whether or not an unemployed teacher is entitled to contribute to the Fund and receive full benefits of the Fund at the end of the contributive period.

17      I reviewed The Teachers Superannuation Act, Stats. P.E.I. 1975, Cap. 28, which was proclaimed July 1, 1975 and which repealed The Teachers Superannuation Act, R.S. P.E.I. 1951, Cap. 58 and I came up with the following opinion:
 
1.

The Teachers Superannuation Act applies to Mrs. Deighan by virtue of section 2 of the said Act which allows teachers to receive a pension who have made contributions under the old Superannuation Act prior to 1975;

2.

That the contribution to the Fund is authorized by sub-section 15(1) of the said Act which reads:

"Every teacher who has contributed to the Fund an amount established by regulations and not to exceed six and one-half percent of his total salary."
3.

Teacher is defined in sub-section 1(h) of the Act as being a person holding a valid subsisting license to teach, issued by the Minister and includes principals and other teachers in the schools. Salary is also defined in section 1(f) of the Act and includes total annual remuneration payable to a teacher for his services.

4.

Due to the fact Mrs. Deighan did not have a salary from teaching during this period of dismissal, Mrs. Deighan was not entitled to make contributions to the Superannuation Fund.

5.

Section 12 of the Act which provides limitations to the computation of teaching service provides for a payment up to two years absence.  However "Teaching Service" as defined in Section 1(g) in my opinion does not include the period in which Mrs. Deighan was in fact absent, however, section 12(1)(b) provides that a teacher may be absent for such periods of time totalling not more than two years, which may be granted to a teacher on the recommendation of the School Commission.  These back contributions which are referred to in section 12(1)(b) are governed by section 12(5) which states that a teacher who has been absent without pay or part pay for any reason, such as military service can only be paid when the teacher returns or is reinstated or reemployed as a teacher in the school system.  Mrs. Deighan, if she is not reinstated, would, therefore, not be entitled to make contributions or anybody make contributions on her behalf.

18      Based on the above findings, I, therefore, informed Mrs. Deighan and other interested parties, that Mrs. Deighan is not entitled to have someone pay on her behalf, or allow herself to pay on her behalf any contributions into The Teachers Superannuation Fund as regulated by The Teachers Superannuation Act, Stats.  P.E.I. 1975, Cap. 28.

19      After giving this particular opinion to the interested parties, Mrs. Deighan indicated she would have to be reinstated as a full teacher to be allowed to teach until she was sixty-five years of age, which again would amount to three and one-half years.  This second proposed settlement was not acceptable.

20      At that particular hearing the Deputy Minister of Justice, Mr. Graham Stewart, had read into the record his letter of August 3rd, 1978 indicating he felt before any further investigation can take place as required under my authority, the matter dealing with the possible conflict between The Human Rights Act and The School Act of the Province of Prince Edward Island must be dealt with.  Mr. Stewart's letter which is attached hereto as Schedule "G" clearly outlined that The Human Rights Act by virtue of section 33 does bind the Government of Prince Edward Island, meaning the Government or its agents cannot act in a discriminatory manner, however, sub-section 1(2) of The Human Rights Act does not come into force until December 12, 1979 (this letter refers to September 12, 1979).  Consequently as a result of section 1(2) the Deputy Minister of Justice indicated verbally, as well as in his letter, that the Unit Two School Board in this case acted lawfully and the Board acted in accordance with the then existing School Act Regulations.

21      As a result of receiving the letter of Mr. Graham Stewart and hearing Mr. Stewart at the hearing, discussions took place that all parties should be prepared at the August 10th hearing to present argument as to whether or not I had the power to continue on with this particular Inquiry without first having determined the issue of the priority of the various pieces of legislation, the priority especially of The Human Rights Act.  The matter was adjourned and reconvened on August 10th for further investigation and argument dealing with this area of conflict in the provincial legislation.

RECONVENED HEARING - AUGUST 10, 1978:

22      At the hearing on August 10th again all parties were represented, as in the August 4th hearing, with the addition of Alan MacPhee, Esq., representing The Teachers Federation.

23      Mr. Mitchell spoke on behalf of The Human Rights Commission and indicated this Board of Inquiry should not investigate the acts of discrimination until the question can be decided "what is the status of section 11 of The Human Rights Act in view of section 1(2) of The Human Rights Act in relation to other Statutes of Prince Edward Island including regulated regulations with which it conflicts".  After lengthy discussion on the legalities of the matter, J. Melville Campbell, Q.C., on behalf of the Unit Two School Board made the following motion:
 
I do so move that this Inquiry by preliminary report to the Human Rights Commission recommend that the matter be referred to the Supreme Court by the Minister of Labour who has indicated that he intends to do so under authority of The Judicature Act, upon such terms of reference as agreed upon by the parties officially before this Inquiry and that this Inquiry adjourn its hearing in deliberation pending the decision and direction of the Supreme Court.

24      After reviewing the various pieces of legislation and being of the opinion I could not make a final ruling on this matter until this particular issue has been referred to the Supreme Court, I adjourned the matter with consent of all parties including Mrs. Deighan, until the Reference was made to the Supreme Court.

25      I did on August 15th send to the Human Rights Commission a letter requesting that the Human Rights Commission through its Minister ask the Lieutenant Governor-in-Council to make such a Reference to the Supreme Court of Prince Edward Island In Banco pursuant to section 38 of The Judicature Act, R.S. P.E.I. 1974, Cap. J-3.  Notice of my letter of August 15th was sent to the Minister of Labour, Deputy Minister of Justice, Deputy Minister of Education, J. Melville Campbell, Q. C., Gerard E. Mitchell, Esq., and Alan MacPhee, Esq., representing The Teachers Federation.  A copy of this particular letter is attached hereto marked Schedule "H".

26      The matter was adjourned until the Supreme Court In Banco could make its findings known to the Government of Prince Edward Island and in particular to the Deputy Minister of Justice who in turn would advise the Human Rights Commission and the Board of Inquiry of the decision of the Supreme Court.

IN THE MATTER OF THE REFERENCE TO THE SUPREME
COURT OF PRINCE EDWARD ISLAND - IN BANCO PURSUANT
TO SECTION 38 OF THE JUDICATURE ACT.

27      Reference was made to the Supreme Court of Prince Edward Island on October 12th, 1978 and the basis of the argument on behalf of the Government of Prince Edward Island was presented by Mr. Graham Stewart.  A copy of his Factum and presentation is attached hereto marked Schedule "I".

28      Also present were Counsel representing The Human Rights Commission, being Mr. Mitchell and Counsel representing Unit Two Board of School Trustees, being Mr. J. Melville Campbell, Q.C., who presented arguments.

29      I did on October 30th, 1978 receive a letter dated October 16th, 1978 from Graham W. Stewart, Deputy Minister of Justice indicating the Reference by the Executive Council to the Supreme Court In Banco with respect to the conflict of legislation in our Province, was heard by that Court on October 12th, 1978.  Mr. Stewart advised me the Court delivered an oral Judgment from the bench at the conclusion of the hearing to the effect that section 11 of the Act is subject to and does not take precedence over other legislation or enactments of the Legislature which may conflict with that section until December 31, 1979.  He indicated that it was the opinion of the Court that sub-section 1(2) of The Human Rights Act dictated that the Act did not take precedence over other provincial legislation until the expiry of three years from the date of the proclamation which would not be until December 12th, 1978.  A copy of his letter is attached hereto marked Schedule "J".

30      I did on October 26th, 1978 send to the Guardian-Patriot newspaper and The Journal-Pioneer newspaper Notice indicating the Public Inquiry would be reconvened on Monday, the 6th day of November, 1978 at the hour of two o'clock in the afternoon at the Supreme Court Building in Summerside, and indicating also any person being a party to the complaint or any person having any interest in the above terms of the Board of Inquiry and wishing to appear shall be at the Inquiry at the time and place herein previously referred to.  This particular Notice was published October 30th and November 2nd.

RECONVENED HEARING NOVEMBER 6, 1978:

31      The Board of Inquiry was reconvened on November 6th, 1978 at two o'clock in the afternoon at the Supreme Court Building in Summerside to continue on with the investigation of the complaint of Mrs. Vera Deighan.  I placed on record as Exhibit #1 the letter from the Department of Justice, dated October 16th, received by myself October 30th, outlining the verbal decision of the Supreme Court In Banco on the matter of the priority of The Human Rights Act over other provincial legislation of our Province.

32      Also submitted as Exhibit #2 at the hearing was the Notice given to the Guardian-Patriot and the Journal-- Pioneer newspapers, published October 30th and November 2nd, 1978, showing the reconvened hearing for Monday, November 6th, 1978 at the hour of two o'clock in the afternoon.

33      At that particular hearing Mrs. Vera Deighan, the Complainant, was not in attendance and the only persons in attendance were J. Melville Campbell, Q.C., and Leonard Russell, Esq., on behalf of Unit Two School Board; and Mark Arnold, Esq., on behalf of The Human Rights Commission.  The Teachers Federation was not represented.

34      Under The Human Rights Act and the authority given to me under my appointment as a Board of Inquiry, I was of the opinion I must continue on with this particular hearing.  I am compelled to do so under section 25(1) of the said Act.  I asked for any presentations on behalf of the parties, although there was no evidence led by the Complainant or anyone dealing with the facts represented to the Human Rights Commission before they made their decision in March and April of 1978.  Mr. Melville Campbell's presentation on behalf of Unit Two School Board which is attached hereto marked Exhibit #3 makes it very clear the Unit Two School Board, in his opinion, acted properly and legally in following the provisions of The School Act even though inconsistent with The Human Rights Act.  Mr. Campbell also further indicated the Commission erred in finding as they did in charging an act of discrimination against Unit Two School Board.  Mr. Campbell suggested to the Board of Inquiry the following take place:
 
1.

That I examine and assess the finding of the Human Rights Commission in light of the decision of ruling of the Supreme Court In Banco;

2.

That the assessment be done that particular day, being November 6th, without hearing evidence in view of the fact that the issue goes to the question of jurisdiction;

3.

That I conclude the following:

(a) That the Board of Trustees of Administrative Unit No. Two acted properly and in accordance with the law and did not commit an act of discrimination in relation to Mrs. Vera Deighan;

(b)

There was in fact no act of discrimination under The Human Rights Act;

(c)

That The Human Rights Commission had no jurisdiction to make a finding on this matter where there is an obvious admitted inconsistency between the existing Statutes;

(d)

That the Commission erred in law in making their finding of discrimination in this matter.

35      Mr. Mark Arnold, representing The Human Rights Commission was not in a position to make a formal presentation at that time and he asked that the matter be set over for a short period of time to allow The Human Rights Commission to come up with a position paper in answer to Mr. J. Melville Campbell.'s presentation.  I indicated to Mr. Arnold that the matter had been set down by public notice for hearing on November 6th and if he wished to make a presentation that Mr. Campbell or the Unit Two School Board or any person wished to answer, then the matter would be re-opened.

36      I did on November 10th, 1978 receive from Mr. Gerard Mitchell, by mail, acting as attorney for The Human Rights Commission, a Brief on behalf of The Human Rights Commission, indicating the position of the Commission is as follows:
 
1.

It is not necessary to call any further evidence before this Inquiry in light of the particular decision;

2.

That the Inquiry should be closed and the Report madeconsistent with the requirements of The Human Rights Commission, simply indicating that in light of the decision of the Supreme Court of Prince Edward Island, Unit Two School Board did not contravene The Human Rights Act in regard to the complainant, Vera Deighan.

A copy of this particular Brief is attached hereto marked Exhibit #4.  I contacted J. Melville Campbell, Q.C., Attorney for Unit Two School Board to see if he wished to respond before the Public Inquiry on this Brief, and he wrote me on November 16th, 1978 confirming receipt of the Brief on behalf of The Human Rights Commission and indicated it is a consent to the matter being placed in evidence without any further presentation on his behalf or on behalf of Unit Two School Board.

37      The matter was then adjourned for my Report which was to be presented to The Human Rights Commission, which may direct it to be clarified or simplified and the Report shall then be sent to each of the persons affected and the Commission may publish this Report in any manner it considers appropriate.  The Human Rights Commission may also recommend to the Minister any action necessary to give effect to the recommendations of the Board of Inquiry.

38      It is, therefore, on the basis of the conclusion of the evidence which was ready November 10th, that I make my recommendations.

RECOMMENDATIONS OF THE BOARD OF INQUIRY

39      Pursuant to the authority appointing me as the Board of Inquiry in this matter under the provisions of The Human Rights Act and in particular pursuant to sections 24 and 25 of The Human Rights Act, I as a Board of Inquiry, make the following recommendations and report to The HumanRights Commission:
 
1.

That it was impossible to seek a settlement from the parties,on the following grounds:

(a) The proposed settlement was in law not available to Mrs. Deighan due to the provisions of The Teachers Superannuation Act, Stats, P.E.I. 1975, Cap. 28;

(b)

The parties being Mrs. Deighan and Unit Two School Board could not arrive at any settlement;

(c)

Unit Two School Board did not make any recommendation to have the matter settled since it is their opinion they complied totally with the provisions of The School Act and the appropriate Regulations.

2.

That the Board of School Trustees of Administrative Unit Two acted properly in accordance with The Human Rights Act, Stats. P.E.I. 1975, Cap. 72 and did not commit an act of discrimination in relation to Vera Deighan under the provisions of The Human Rights Act.

3.

That the Human Rights Commission should inform the Board of School Trustees of Administrative Unit Two that the School Board did not contravene The Human Rights Act with regards to the complainant Vera Deighan and as a result the Board cannot be found to have acted in a discriminatory way against Mrs. Deighan on the basis of that particular act.

4.

I, as a Board of Inquiry, cannot make any findings as to whether or not there were any other acts of discrimination before The Human Rights Commission due to the fact there was no evidence presented to me by the complainant and/or The Human Rights Commission which would allow me to make a ruling or finding that there there any facts presented indicating discrimination other than the matter dealt with under The Human Rights Act, being the age factor.

5.

That the Board of Inquiry would ask in the future when any complaints are made before The Human Rights Commission that the parties appear at an actual hearing to be able to hear any evidence which may be presented to the Commission and to answer any allegations or complaints presented at that particular hearing.  This hearing should not be a formal hearing conducted under the Civil Rules of Procedure.  All facts which are found and going to be presented to the Commission should be presented to the parties involved so they will have an opportunity to answer any facts or any complaints which are alleged by the investigative officer of The Human Rights Commission.  It seems to be under the provisions of The Human Rights Act that the Commission has a right to investigate any complaint and in order to arrive at a settlement, I think it will be necessary for all parties concerned to at least meet with the Commission and discuss the matter in some detail to see what allegations are before the parties to insure proper format for settlement.

6.

I also recommend that if a decision is made by The Human Rights Commission alleging discrimination, they must specifically outline in the decision the act of discrimination under the Act.  The reason I make this recommendation is I found the decision of the Commission was not clear in this matter and I was a bit confused as to exactly what acts of discrimination under The Human Rights Act the decision was made.

7.

I would also recommend that any further Boards of Inquiry commenced under The Human Rights Act that all and every piece of evidence and information which went to help the Commission form its decision should be part of the preliminary material sent to the Board of Inquiry in order to allow it to investigate the complaint as outlined in The Human Rights Act.

40      The above recommendations are respectfully submitted this 20th day of November, A.D.

*  *  *  *  *

APPENDIX A

Province of Prince Edward Island
P.O. Box 2000
Charlottetown
Prince Edward Island
C1A 7N8

June 28, 1978

Mr. Ronald Dalzell
Farmer, Dalzell & Farmer
P.O. Box 1597
Charlottetown,  P.E.I.

Dear Mr. Dalzell:
 
RE: Alleged Discrimination Complaint Filed With The Prince Edward Island Human Rights Commission on Behalf of Mrs. Vera Deighan -- School Unit No. Two

Pursuant to the authority vested in me by Section 24(1) of The Prince Edward Islald Human Rights Act, R.S.P.E.I. 1975 Cap. H-12.2; you are hereby appointed a Board of Inquiry to investigate and seek settlement of the above captioned Complaint. Parties to the Complaint are:

P.E.I. Human Rights Commission -- J.R. Kelly, Chairperson, P.O. Box 2000, Charlottetown, P.E.I., Phone 892-3416

Mr. Edward Laughlin, Chairman, School Unit No. Two (Respondent), 272 MacEwen Road, Summerside, PHone 436-2133

Mrs. Vera Deighan (Complainant), 261 Arcons Street, Summerside, Phone 436-9474

The appointment is effective from June 28, 1978.

Should you require further advice or assistance on this matter, please do not hesitate to contact the Deputy Minister of Labour, Phone 892-3416.

Please find enclosed for your information a copy of the Prince Edward Island Human Rights Act.  Please note in particular Sections 24, 25, and 26; defining the appointment, powers, terms of refence and reporting procedure.

Yours very truly,

George A. Proud
Minister of Labour

seb
Enclosure -- Human Rights Act
 
cc: Mrs. Vera Deighan

Mr. Edward Laughlin

*  *  *  *  *

APPENDIX B

CANADA
PROVINCE OF
PRINCE EDWARD ISLAND
 
WHEREAS Mr. Ronald V. Dalzell, Esq. has been appointed by The Honourable George A. Proud the Minister of Labour pursuant to The Prince Edward Island Human Rights Act, R.S.P.E.I., 1975, Cap. H-12.2 to be a Board of Inquiry;

- and -

To investigate and seek settlement of an alleged discrimination complaint filed with The Prince Edward Island Human Rights Commission on behalf of Mrs. Vera Deighan against Unit 2 Board of School Trustee, Prince Edward Island

      TAKE NOTICE that the Hearing of the Board of Inquiry shall commence on Friday the 4th day of August, A.D., 1978 at the hour of 10:00 o'clock in the morning at the Supreme Court Building in Summerside and it shall be reconvened on Thursday the 10th day of August, A.D., 1978 at 10:00 o'clock in the morning at the same place and thereafter the Inquiry shall be held as the Board of Inquiry orders.

      AND KNOW THEREFORE any person being a party to the Complaint or any person having any interest to the above terms of the Board of Inquiry and wishing to appear shall be at the in Inquiry at the times and place herein previously referred to.

RONALD V. DALZELL
BOARD OF INQUIRY

*  *  *  *  *

APPENDIX C

[Quicklaw note:  The following is a facsimile of the form used to file a aomplaint with the Prince Edward Island Human Rights Commission.]

COMPLAINT UNDER THE PRINCE EDWARD ISLAND
HUMAN RUGHTS COMMISSION
(COPIES OF ACT AVAILABLE)
To: The Human Rights Commission

68 University Avenue

P.O. Box 2000

Charlottetown, P.E.I.

C1A 7N8

Phone:  892-3416

I (Mrs.) Vera Deighan residing at XXXXXXXXXXXXX, Summerside, P.E.I.
 
Telephone number: Home:  xxxxxxx Work/Business: ..........
complain against Unit 2 Board of School Trustees

of

Summerside, P.E.I. (P.O. Box 2500)

who on, or about Apr. 28, 1977

(date of alleged act of discrimination)

did inmy view discriminate against me because of my:
 
[ ] race [ ] religion [ ] creed [ ] color [ ] sex
[ ] marital status [x] age* [ ] ethnic/national origin
[ ] political belief [ ] physical handicap*

in the matter of:
 
[x] employment [ ] accomodation [ ] services
[ ] property [ ] pay [ ] membership in business/trade

professional association

[ ] membership in employee [ ] volunteer service

organization

[ ] advertising [ ] associating with an individual

or class of individuals

[ ] for having laid a complaint/given evidence/assistance under the P.E.I. Human Rights Act.
*Note:

age & physical handicap apply only in matters of pay & employment.

THE PARTICULARS ARE (USE BACK OF THIS FORM IF NECESSARY)
 
Dated at

Summerside, P.E.I.  this date  November 28, 19777.

Vera Deighan (Signature of person making complaint)
 
FOR OFFICE USE ONLY: Date complaint received  28 Nov. 1977
Complainant (Mrs.) Vera Deighan Case number 77#8

Respondent

Nd. of School Trustees

Nature of Complaint:  Dismissal from teaching position (particulars taken on interview with Complainant)
 
Section of Human Rights Act applying S. 11(1)(a)
Action taken ............................................

*  *  *  *  *

APPENDIX D

March 22, 1978

Mr. J. Edward Laughlin
Chairman
Regional Administrative Unit 2
P.O. Box 2500
Summerside, P.E.I.
ClN 4L9

Dear Mr. Laughlin:

Re: Mrs.  Vera Deighan

The Prince Edward Island Human Rights Commission has completed its investigation into the complaint brought before it by Mrs. Vera Deighan.  The Commission has reasoned in the following manner:
 
a)

The Board did indeed have no choice but to reduce staff in view of Departmental regulations governing response to declines in enrollment.

b)

Certain staff members were automatically protected from the reduction process because secured in their position through tenure.

c)

Mrs. Deighan was legitimately exposed to the process, but was in the last analysis eliminated (or not rehired) exclusively because of her age.

The Commission therefore concluded that tha final decision of your Board was clearly in violation of Section 11(l)(a) of the Human Rights Act which states;
 
No person or agency included in sections 6,7,8,9 and 10 shall discriminate against an individual because of the age of the individual if the individual has attained the age of eighteen years and has not attained the age of sixty-five years.

In addition Section 21 of the Act states:
 
The Commission shall inquire into and endeavour to effect a settlement of any complaint of a violation of this Act...

Therefore with a view to reaching an early settlement the Commission wishes to receive your expression of intention within fourteen days of receipt of this letter.

Yours truly,

JAMES R. KELLY
Chairperson

c.c.  Mrs. Vera Deighan

*  *  *  *  *

APPENDIX E

April 13, 1978

Mr. E.J. Laughlin, Chairman,
Unit 2 Board of School Trustees,
P.O. Box 25OO, 272 MacEwen Road
Summerside, Prince Edward Island.

Dear Mr Laughlin

The Human Rights Commission acknowledges receipt of your letter of April 5, 1978; it now approaches the task of a fitting reply.  The Commission realizes with embarrassment how different must be the two letters.  Yours was firm, decisive and in view of the communication to which it was responding, quite justified and reasonable.  The Commission's present reply, by contrast, must - at least in its opening stages - be heavily marked with apology and regret.  The reason for this, quite simply, is a cleric error in the final editing of our letter of March 22nd,  which though involving only a single word, had the effect of seriously distorting the intent, if not the substance, of the Commissionts mind to date on the matter at issue between the Commission and your Board of School Trustees.

While it is usually neither necessary, nor perhaps even in the best taste, to bother with details in trying to explain away an error, perhaps the Board would indulge the Commission to the extent of a few lines of detail on this one occasion, since these details could, hopefully, beyond question, demonstrate from the whole context of the Commission's earlier letter what the real intent of that letter was.

To explain then: A first draft of the letter in question simply stated a conclusion at which the Commission had arrived,  and stated it in blunt terms: The Commission found that the Board's decision in the affair of Mrs. Vera Deighan had been arrived at "exclusively" on the basis of age". and was, therefore, discriminatory and in contravention of the Human Rights Act.  Upon reflection, however, the Commission deemed that this first statement was neither fair nor accurate.  There had indeed been several other factors operative in the Board's decision not to re-hire Mrs. Deighan (e.g. the whole need and duty of reducing staff in the first place was something quite outside any control of the Board). For this reason, the Commission carefully re-worded its communication to the Board:  there would not be merely the blunt delivery of a categorical decision against the Board; there would be a report of the Commission's reasoning, which reasoning fully recognized the presence of various unavoidable forces at work in the staffing situation.  Further, the Commission would indeed have to insist on the same negative finding, but would do so with the clear admission of probable good faith on the part of the Board; most blame would be attributable to the conflict between the School Act's ruling regarding tenure and that of the Human Rights Act prohibiting discrimination on the basis of age.  The Commission's statement of its actual decision would close with the words: "The Board's decision was made ultimately on the basis of age".  Unfortunately, through a most regrettable clerical error, the adverb "exclusively" of the original statement found its way into the revised statement.  The Commission believes that the Board should have no difficulty in accepting the truth of this whole explanation, for it will be clear that the offensive term "exclusively" makes no sense in its place in the letter which finally arrived in the Board's hands.

With this lengthy explanation and apology finally completed, the Commission now ventures a proposal to the Board which will, admittedly, involve a modifying of the definitive stance adopted in the Board's letter of April 5th; but the Commission sees two grounds for hoping that the Board may respond positively to the proposal.

First; the proposal: The Commission feels that it would now be quite possible for the Board with full dignty to reconsider its original decision regarding the the hiring of Mrs. Deighan; the Commission further feels that the Board may find it not only possible but even attractive, as an ernest of its declared non-discriminatory attitude for it so to reconsider. The Commission, moreover, now formally makes that proposal.

The Board will ask: "On what two grounds?"  lt The Commission answers:

(a)  The Commission trusts that it has made it clear in the course of the discussion, that, however great the good faith of the Board, it has gotten itself involved in an act that contravenes a Statute of this Province.

(b)  The Department of Education itself has recently instituted in the Legislature a petition for amendment of that provision of the School Act which conflicts with the Human Rights Act in the matter of discrimination on the grounds of age and in the area of employment.  It is this provision of the School Act, of course, which up until now has given a semblance of legality to the Board's decision now under dispute.

The Commission concludes this rather lengthy communication with an official request and then with a protestation and appeal.

By way of request, the Commission respectfully, but with authority, asks that the Unit Two Board of School Trustees give prompt and ernest reconsideration to its decision not to rehire Mrs. Vera Deighan and that, within fourteen days of receipt of this letter, it communicate its decision to this Human Rights Commission.

By way of protestation, this Commission protests that it has been its attitude and policy from the outset to pursue the objectives of the Human Rights Act by way of discussion and education, assuming, without reserve, that the great majority of the citizens of this Province are already solidly disposed in favour of these same objectives.  Legal action should be a last resort.

Finally, by way of appeal, the Commission - realizing that a group of citizens devoted enough to serve long hours on a School Board is at least as well disposed as any fellow citizens serving on a Human Rights Commission - appeals to the Board members to be big enough to bend a little, if their conscience so allows them in the present matter, so as to give leadership in the higher social goals envisaged by the Human Rights Act.

Wth respect and best wishes,

James R. Kelly
Chairperson

JRK:gfs.

*  *  *  *  *

APPENDIX F

May 31, 1978

Honourable George A. Proud
Minister of Labour
Province of Prince Edward Island

Dear Mr. Proud:

The Prince Edward Island Human Rights Commission has, in the course of processing a complaint, come to the point of having to recommend a board of inquiry into the matter, The Commission herewith supplies the relevant data and enters its recommendation.

On November 28, 1977 the Prince Edward Island Human Rights Commission received a complaint from Mrs. Vera Deighan of Summerside.  The complaint alleged that she had been discriminated against because of her age in the matter of employment.  To be more specific, she was not rehired for her position as a teacher at Parkside School in Summerside.  In accordance with Section 21 of the Human Rights Act the Commission proceeded with an investigation into the particulars of this complaint.

On December 6, 1977 a letter was sent to Mr. Edward Laughlin, Chairman of School Unit No. Two, asking that the Board supply to the Human Rights Commission the full particulars concerning the reason or reasons why Mrs, Deighan's contract was not renewed.  On December 9, 1977 the Commission received a letter from Mr. Laughlin explaining the basis for his Board's decision.  His letter was based on the School Act, Section 43 (7), which reads as follows:
 
Notwithstanding any contract of employment or provision of this Act, where the number of teachers required in a regional administrative unit is lessened, if the regional school board of that unit gives notice in writing as in Section 42, the regional school board may terminate the contract of any teacher.

In addition, Division C, Section 2(3) of the Regulations was given as further rationale:
 
Following termination of the permanent contract of a teacher at age sixty years, a regional school board may engage such teacher on a year to year basis between the ages of sixty and sixty-five years.

This indicates, the letter pointed out, that for any teacher over the age of sixty there can be no guarantee of continued employment.

On January 10, 1978 this Commission wrote back to the Chairman of School Unit No. 2 requesting a meeting of the Commission with the School Board.  This Commission's concern was that full information be supplied on the following points:
 
1.

Why was Mrs. Deighan particularly chosen not to be rehired in the process of reduction of staff?

2.

What were the qualifications and tenure status of the person who replaced Mrs. Deighan?

On January 26, 1978 Mr. Laughlin replied: to the first point, "that anyone who was in the position of not having tenure within the unit can well be involved in the process of staff reduction": to the second point, "it is not possible to pinpoint that one individual in fact did replace another individual since there were no new individuals hired..."

On February 1, 1978 this Commission wrote back to Mr. Laughlin requesting that every effort be made at the earliest convenience to arrange for a joint meeting.  In addition, we expressed our concern that present staffing decisions for Unit Two should possibly be stayed until this present case was resolved.

On March 7, 1978 this Commission met with the Board of School Trustees of Regional Administrative Unit No. Two at the Board office in Summerside.  Initially Father Kelly, Chairperson of the Human Rights Commission, informed the Board that the Commission felt that there was a serious danger that the decsions to dismiss Mrs. Deighan was made on the basis of age and that this would contravene the Human Rights Act.  Mr. Mullin, Human Rights Commissioner, proceeded to analyze that data showing how the commission had arrived at its position.

Mr. Mullin stated that the basis of Mrs. Deighan's complaint was Section 11(1)(a) of the Human Rights Act which states:
 
No person or agency included in sections 6, 7, 8, 9 and 10 shall discriminated against an individual because of the age of the individual if the individual has attained the age of eighteen years and has not attained the age of sixty-five years.

Mr. Mullin further pointed out that there was nothing in our documentation and correspondence that appeared to support any dismissal for cause.  The meeting with School Unit No. Two ended with a general question and clarification period.

On March 22, 1978 the Commission reached a decision in this matter, which was that the deicison of School Unit No. Two was clearly in violation of Section 11 (1)(a) of the Human Rights Act.  Moreover, in communicating the decision, the Commission requested, "that with a view to reaching an early settlement the Commission wishes to receive your exprerssion of intention within fourteen days of receipt of this letter."

On April 5, 1978 the Commission received a reply from Mr. Laughlin.  In his letter he stated that "this Board has given great consideration to this issue and remains convinced that the original decision was not discriminatory."

On April 13, 1973 this Commission wrote back to Mr. Laughlin appealing, in very passionate terms, that their final decision be reconsidered.

On April 27, 1978 a letter was received from Mr. Laughlin which stated among other things "that after reviewing the decision made by the Board regarding Vera Deighan at the sixty-third regular Board meeting held on May 3, 1977, we uphold the decision made by the Board at that time."

The findings of the Commission are as follows:
 
a.

School Unit No. Two did indeed have no choice but to reduce staff in view of departmental regulations governing response to declines in enrollment.

b.

Certain staff members were automatically protected from the reduction process because secured in their position through tenure.

c.

Mrs. Deighan was legitimately exposed to the process but was in the last analysis eliminated (or not rehired) ultimately because of her age.

At this point this Commission is unable to effect a settlement in this matter.  Section 24(1) of the Human Rights Act states:
 
If the Commission is unable to effect a settlement of the matters complained, it shall make a report to the Minister and the Minister may appoint one or more persons to be a board of inquiry to investigate and seek settlement of of the complaint.

This Commission therefore requests of you, Mr. Minister, that a board of inquiry be established to investigate and seek settlement of this matter.

Yours truly,

JAMES R. KELLY
Chairperson

JRK/lc

*  *  *  *  *

APPENDIX G

DEPARTMENT OF JUSTICE
P.O. Box 2000
Charlottetown
CIA 7N8

August 3, 1978

Mr. Ronald V. Dalzell
Barrister & Solicitor
83 Queen Street
P.O. Box 1597
Charlottetown, P.E.I.
CIA 7N3

      Re: Human Rights Act - Dieghan Complaint

Dear Mr. Dalzell:

Thank you for your Notice of Hearing in this matter.

I would wish to attend in Summerside on August 4, 1978, but I may be prevented from doing so by virtue of an important pre-trial conference involving a number of solicitors which has been set down before a judge of the Supreme Court at the exact same time.  In the event that I am unable to attend, I am taking the liberty of forwarding to you this letter stating this Department's position respecting the interpretation of the legislation involved in this matter.

It is our position that subsection 1(2) of the Human Rights Act has the effect of providing that, where conflicts exist between the Act and other enactments of the legislature or Lieutenant-Governor-in-Council, the Act does not prevail over those conflicting enactments until September 12, 1979, which will be the date three years from the proclamation of the Act. The Human Rights Act does presently have effect in this province with respect to general acts of or conduct resulting in discrimination, but if the discrimination is authorized by another provincial enactment, such as the now repealed relevant School Act regulation, the other provincial enactment retains  its full force and effect.

The Human Riqhts Act by virtue of section 33 does bind the Government of Prince Edward Island, meaning that the government or its agents cannot act in a discriminatory manner.  This does not in our opinion alter the fact that contrary enactments of the legislature, or regulations made thereunder, retain their effect.

For your information, and that of others involved in this matter, the instructions were circulated some time ago to all government departments and agencies, requesting a review of their legislation in order to seek out possible conflicts with the Human Rights Act.  The Department of Education as I recall very promptly responded, resulting in the repeal by the Lieutenant-Governor-in-Council of the provisions of the School Act regulations authorizing the mandatory retirement of teachers at the age of sixty.

Since, however, those regulations were in effect at the time relevant to the purpose of this hearing, those regulations did, by law, have full force and effect notwithstanding the Human Rights Act.

It would follow that the school board in this case acted lawfully, if the board acted in accordance with the then existing School Act regulations.

Yours truly

Graham W. Steawart
Deputy Minister

/hm

*  *  *  *  *

APPENDIX H

Farmer, Dalzell & Farmer
P.O. Box 1597
Canadian Imperial Bank of Commerce Building
Charlottetown, P. E. I.
CIA 7N3

August 15, 1978

The Human Rights Commission
68 University-Avenue
P.O. Box 2000
Charlottetown
Prince Edward Island

Attention: Mr. Paul Mullen, Chairman

Dear Sir:

Re: Human Rights Act - Deighan Inquiry

As you are aware I have been appointed a Board of Inquiry to look into the alleged discrimination complaint filed with the Prince Edward Island Human Rights Commission on behalf of Mrs. Vera Deighan against Unit Two School Board.

Under the terms of reference, outlined to me in a letter from the Minister of Labour, dated June 28, 1978, I was appointed a Board of Inquiry to investigate and seek settlement of the above complaint.  Also upon reviewing the Human Rights Act, R.S.P.E.I., 1975, dap.  H-12.2 and after determining whether or not settlement could be reached between the parties, I was to determine whether the complaint was supported on the basis of reasonable preponderance of evidence before the Human Rights Commission.  After hearing such evidence I was to make a report to the Human Rights Commission.

As you may or may not be aware, at the opening of the Board of Inquiry I raised an issue before the various counsels involved, those counsels being Mr., Gerard Mitchell, acting on behalf of the Human Rights Commission, Mr.. Melville J. Campbell, Q.C., acting on behalf of the Unit Two School Board, Mr. A. MacPhee, acting on behalf of the Teachers Federation and Mr. Graham Stewart, on behalf of the Department of Justice, and that issue being whether or not the Human Rights Commission had the right to make a finding in the manner in which it had taking into consideration.  Sub-Section 1(2) of,the Human Rights Act which states:
 
"This Act shall at the expiration of three (3) years from the date of this Act coming into force, be deemed to prevail over a1l other taws of this Province and such Laws shall be read as being subject to this Act;...".

The issue is whether or not the Unit Two Board of Schools Trustees which acted in accordance with Section 2 of Division C Part I of the existing Regulations made under the School Act, R.S.P.E.I. 1974 C. S-2 have in fact violated the Human Rights Act, bearing in mind sub-section 1(2) of the Human Rights Act.  I felt that before taking this matter further by hearing evidence that this issue must be looked at by the Supreme Court, consequently, the following motion was made by Mr. Melville Campbell, Q.C., on behalf of Unit Two Board of School Trustees:
 
"I do so move that this Inquiry, by preliminary report to the Human Rights Commission recommend that the matter be referred to the Supreme Court by the Minister of Labour, who has indicated he intends to do it, under the authority of the Judicature Act of this Province upon such terms of reference as are agreed upon by the parties officially before this   Inquiry, and that this Inquiry adjourn its hearings and deliberations pending the decision and direction of the Supreme Court."

I granted that particular motion, and all parties to the action including the complaintant agreed to adjourn thereafter pending decision and direction by the Supreme Court of Prince Edward Island.

It is therefore, my preliminary recommendation that the Human Rights Commission recommend the Minister of Labour that the above issue be brought before the Supreme Court of our Province under the provision of Section 38 of the Judicature Act, and that my hearing will not be reconviened until a decision has been rendered by the Supreme Court.

Yours very truly,

FARMER, DALZELL & FARMER Per;

Ronald V.  Dalzell

RVD/mjr
 
cc. Minister of Labour

      Honourable George A. Proud

Deputy-Minister of Department of Justice

      Mr. Graham Stewart

Deputy-Minister of Education

      Mr. Lorne Moase

Mr. Melville Campbell, Q.C.

      (Campbell & McEwen)

Mr. Gerard Mitchell

      (Campbell & Mitchell)

Mr. A. MacPhee

      (Campbell & Currie)

*  *  *  *  *

APPENDIX I

CANADA No. GDC-1041

PROVINCE OF PRINCE EDWARD ISLAND

IN THE SUPREME COURT

APPEAL DIVISION

IN THE MATTER OF a reference to the Supreme Court of Prince Edward Island in banco pursuant to Section 38 of the Judicature Act R.S. P.E.I., 1974, Cap. J-3

AND IN THE MATTER OF the Human Rights Act Stats.  P.E.I. 1975, C. 72

FACTUM OF THE GOVERNMENT OF PRINCE EDWARD ISLAND

INDEX

PART I STATEMENT OF FACTS

PART II

POINTS IN ISSUE

PART III

BRIEF OF ARGUMENT

PAR IV

ORDER DESIRED

PART I
STATEMENT OF FACTS

1.  This is a reference by the Lieutenant Governor in Council to the Supreme Court of Prince Edward Island in banco pursuant to Section 38 of the Judicature Act, R.S. P.E.I. 1974, Cap. J-3.  The question asked of the Court is as follows:
 
In view of subsection 1.(2) of the Human Rights Act, Stats. P.E.I. 1975, C. 72, what is the status of Section 11 of the said Human Rights Act in relation to other statutes of Prince Edward Island, including related regulations, with which it conflicts?
2. Subsection 1(2) of the Human Rights Act reads as follows:
1(2)

This Act shall, at the expiration of three years from the date of this Act coming into force, be deemed to prevail over all other laws of this province and such laws shall be read as being subject to this Act; between the date of this Act coming into force and the expiration of the said three year period it is the express intention of the legislature that inconsistencies between the statutes and regulations of this province and this Act be removed.

3. Subsection 11(1) of the Act reads as follows:
11(1) No person or agency included in sections 6, 7, 8, 9 and 10 shall discriminate against an individual because of
(a) the age of the individual if the individual has attained the age of eighteen years and has not attained the age of sixtyfive years; or

(b)

a physical handicap of the individual unless the nature and extent of the handicap reasonably precludes performance of the particular employment, activity or association.

4.  The Human Rights Act was proclaimed to come into force on September 11, 1976.

PART II
POINTS IN ISSUE
5. The point at issue is as follows:
Is it the intent of subsection 1(2) of the Human Rights Act that where the provisions of that Act conflict with provisions of other provincial enactments, the Human Rights Act does not prevail over the conflicting enactment until the expiration of three years from the date of proclamation of the Human Rights Act which point that Act does from then on take precedence over conflicting legislation?

PART  III
BRIEF OF ARGUMENT

6.  It is submitted that it appears from the wording of ss. 1(2) that the legislature intended for enactments contrary to the Human Rights Act to remain in full force and effect until three years from the Human Rights Act proclamation.  It follows that actions carried out under the authority of a conflicting enactment during that three years "period of grace" could not be the subject of sanctions or remedial action under the Human Rights Act.  It is submitted that the words "at the expiration of three years.......... be deemed to prevail........" fairly clearly indicates this intention.

7.  Were it not for ss. 1(2) of the Human Rights Act, that Act would probably immediately prevail over all contrary enactments by virtue of the rule of statutory interpretation that where "two Acts are inconsistent or repugnant, the later will be read as having impliedly repealed the earlier."

Craies on Statute  Law, 7th Edition, 1971, p. 366.

8.  It must be acknowledged that while ss.1 (2) provides that the Human Rights Act "is deemed to prevail over all other law" after the three year period, it does not specifically provide that a contrary enactment takes precedence during that three year period.  It is submitted however that by affirmatively stating that the Act would prevail after three years, the legislature intended that prior to the expiration of that period, the Act would not prevail, the effect being that the contrary enactment would take precedence.
 
See Craies on Statute Law, op. cit. at p. 376 where the following statement appears: "Even if a subsequent statute, taken strictly and grammatically, is contrary to a previous statute, yet if at the same time the intention of the legislature is apparent that the previous statute should not be repealed, it has been in several cases held that the previous statute is to remain unaffected by the subsequent one."

9.  By way of legislative history it is noted that the predecessor of the present Act, the Human Rights Code, R.S. P.E.I. 1974, Cap.  H-13, apparently provided that the Code did not take precedence over other enactments.  Section 3 of the Human Rights Code reads as follows:
 
3.

Nothing in this Act shall be construed as enlarging or restricting or otherwise altering the force and effect of any provision of any other Act.

10.  It is submitted that it is not particularly relevant to the determination of this question that by virtue of Section 33 the Human Act Right binds the Crown.  That section places the Crown in a position identical to that of any citizen insofar as its conduct or actions may be governed by that Act. It is not the relationship between the Human Rights Act and the Crown which is the subject of this question, but rather the relationship between the Act and other provincial enactments.

PART IV
ORDER DESIRED

11.  No specific order is desired or considered appropriate in this reference.  It is submitted that the question should be answered as the Court deems appropriate.

      All of which is respectfully submitted.

Graham W. Stewart
Solicitor for the Government of
Prince Edward Island.

TO:
J. Melville Campbell, Q.C.
Ronald V. Dalzell
Gerard E. Mitchell

*  *  *  *  *

APPENDIX J

DEPARTMENT OF JUSTICE
P.O. Box 2000
Charlottetown
CIA 7N8

October 16, 1978

Mr. Ronald V. Dalzell,
Barrister, etc.,
P.O. Box 1597,
Charlottetown, P.E.I.
C1A 7N3

Re: Vera Deighan - Human Rights Act
Commission of Inquiry

Dear Mr. Dalzell:

      The reference by the Executive Council to the Supreme Court in banco with respect to the above-noted matter was heard before the Court on October 12, 1978.  The Court delivered an oral judgment from the Bench at the conclusion of the hearing, to the effect that section 11 of the Act is subject to, and does not take precedence over, other legislation or enactments of the Legislature which may conflict with that section.  It was the opinion of the Court that subsection 1(2) of the Human Rights Act dictated that the Act did not take precedence over other provincial legislation until the expiration of three years from the date of proclamation of the Act.

      I will be drawing up a formal Order in this matter forthwith, a copy of which will be forwarded to you for your information.

Yours truly,

Graham W. Stewart
Deputy Minister.

*  *  *  *  *

EXHIBIT 1

DEPARTMENT OF JUSTICE
P.O. Box 2000
Charlottetown
CIA 7N8

October 16, 1978

Mr. Ronald V. Dalzell,
Barrister, etc.,
P.O. Box 1597,
Charlottetown, P.E.I.
C1A 7N3
 
Re: Vera Deighan - Human Rights Act Commission of Inquiry

Dear Mr. Dalzell:

      The reference by the Executive Council to the Supreme Court in banco with respect to the above-noted matter was heard before the Court on October 12, 1978.  The Court delivered an oral judgment from the Bench at the conclusion of the hearing, to the effect that section 11 of the Act is subject to, and does not take precedence over, other legislation or enactments of the Legislature which may conflict with that section.  It was the opinion of the Court that subsection 1(2) of the Human Rights Act dictated that the Act did not take precedence over other provincial legislation until the expiration of three years from the date of proclamation of the Act.

      I will be drawing up a formal Order in this matter forthwith, a copy of which will be forwarded to you for your information.

Yours truly,

Graham W. Stewart
Deputy Minister.

*  *  *  *  *

EXHIBIT 2

CANADA
PROVINCE OF
PRINCE EDWARD ISLAND
 
WHEREAS Mr. Ronald V. Dalzell, Esq. has been appointed by The HonourabIe George A. Proud the Minister of Labour pursuant to The Prince Edward Island Human Rights Act, R.S. P.E.I. 1975, Cap.  H-12.2 to be a Board of Inquiry;

-and-

To investigate and seek settlement of an alleged discrimination complaint filed with The Prince Edward Island Human Rights Commission on behalf of Mrs. Vera Deighan against Unit 2 Board of School Trustees, Prince Edward Island.

      TAKE NOTICE that the reconvened Hearing of the Board of Inquiry shall be heard on Monday the 6th day of November, A.D. 1978 at the hour of two o'clock in the afternoon at the Supreme Court Building in Summerside.

      AND KNOW THEREFORE any person being a party to the Complaint or any person having any interest in the above terms of the Board of Inquiry and wishing to appear shall be at the Inquiry at the times and places herein previously referred to.
 
RONALD V. DALZELL,
BOARD OF INQUIRY

Handwritten notes at bottom of notice:

Published Oct 30, Nov 2, 1978
Guardian-Patriot
Journal Pioneer

*  *  *  *  *

EXHIBIT 3

CANADA
PROVINCE OF
PRINCE EDWARD ISLAND
 
WHEREAS Mr. Ronald V. Dalzell, Esq., has been appointed by The Honourable George A. Proud, the Minister of Labour, pursuant to The Prince Edward Island Human Rights Act, R.S.P.E.I. 1975, Cap.  H-12.2 to be a Board of Inquiry.

- and -

To investigate and seek settlement of an alleged discriminiation complaint filed with The Prince Edward Island Human Rights Commission on behalf of Mrs. Vera Deighan against Unit 2 Board of School Trustees, Prince Edward Island.

PRESENTATION OF BOARD OF TRUSTEES, ADMINISTRATIVE UNIT 2

      This matter having arisen from a complaint by Vera Deighan to the Human Rights Commission (hereinafter called the "Commission").  And further having been investigated by the Commission, the Commission finding that an act of discrimination was committed against Vera Deighan by the Board of Trustees of Administrative Unit 2 (hereinafter called "Unit 2"), and the Commission being unable thereafter to obtain a settlement between Vera Deighan and Unit 2, the matter was referred by the Minister of Labour to Ronald Dalzell, Esq., a one man Board of Inquiry for consideration pursuant to the Human Rights Act.

      At the initial hearing before Mr. Dalzell, counsel for the Commission, Teachers' Federation and Unit 2 agreed that it was essential for the determination of this matter to obtain a clear interpretation of s. 1(2) in relation to inconsistent Sections of the School Act with the Human Right's Act.  The matter was thus referred to the Supreme Court of Prince Edward Island, En Banco.

      The Supreme Court was asked to determine the question:
 
In view of subsection 1(2) of the Human Rights Act, Stats., P.E.I. 1975, c. 72, what is the status of Section 11 of the said Human Rights Act in relation to other statutes of Prince Edward Island, including related regulations with which it conflicts?

      The Supreme Court had no difficulty in finding that because of s. 1 (2) of the Human Rights Act, the latter act did not take priority over existing inconsistent statutes during the three year period from the date of proclamation of the Human Rights Act.

      It is, therefore, clear and beyond any doubt that the School Act supersedes as against the Human Rights Act during this period of time.

      The obvious result of this finding is that Unit 2 acted properly and legally in following the provisions of the School Act even though inconsistent with the Human Rights Act, and further that the Commission erred in finding as they did and charging an act of discrimination against the Board.

      In view of the plain and obvious meaning of s. 1(2) of the Human Rights Act and its obvious application to the complaint of Vera Deighan; and further, in view of the arguments initially advanced by myself on, behalf of the Board during the investigation of the complaint, it is difficult to understand, let alone justify how the Commission could have so obviously ignored s. 1(2) of the Human Rights Act especially when their finding resulted in leveling a charge against Unit 2 of committing an act of discrimination.  I have purposely suggested that the Commission ignored the obvious application of s. 1(2) to this complaint; however, whether ignored or whether they wanted the section interpreted by the courts, the Commission did a grave disservice to natural justice by not having the matter first resolved before charging a party with an act of discrimination.  In one of its first cases, the Commission seems to have been so carried away by an overzealousness to discount an act of discrimination and herald itself as the champion of the discriminated that it dawned the blindfold of the Lady of Justice and proceeded to arrive at a seemingly predetermined goal.  The Commission obviously erred in the basic question of jurisdiction and there must be a correction of their finding.

      That is now past and we today must ask two questions. What is your role and how can this matter be settled?

      The Human Rights Act calls on you to report a settlement of the dispute (s. 25 (2)).

      Section 25 of the Act sets out your duties.  I will not reproduce this section but it would appear that you should be able to effect a settlement without a further hearing and if not, that you should report your recommendations to the Commission at this time in accordance with the suggestions herein.  Any settlement would have to take into account the wishes of Unit 2 which considers itself agrieved by the finding of the Commission.

      Specifically and considering the above review of events, I make the following suggestions to you, Mr. Dalzell:
 
1.

That you examine and assess the effect of the finding of the Human Rights Commission in light of the decision or ruling of the Supreme Court.

2.

That this assessment be done here and now without hearing evidence in view of the fact that the issue goes to a question ofjurisdiction.

3.

That you conclude (in view of the Supreme Court decision):

(a) that the Board of Trustees of Administrative Unit 2 acted properly and in accordance with the law and did not commit an act of discrimination in relation to Vera Deighan as found by the Commission; and,

(b)

that there was in fact no act of disctimination against Vera Deighan under the Human Rights Act;

(c)

that the Human Rights Commission had no jurisdiction to make a finding in this matter where there was an obvious and admitted inconsistency between an existing statute, the School Act, and the Human Rights Act, and the Commission erred in law in making a finding of discrimination in this matter.

4. That you inquire today of the parties whether there is agreement on the settlement of this matter.

5.

That you report to the Commission:

(a) any settlement;

(b)

if no settlement, or in any event:

(i) that the Human Rights Commission had no jurisdiction to make a finding and subsequently to charge the Board of Trustees of Administrative Unit 2 with an act of discrimination in view of the inconsistency of the School Act and the Human Rights Act, and the court's decision re effect of s. 1(2) of the Human Rights Act;

(ii)

that the Human Rights Commission erred in making, finding and charging an act of discrimination against Unit 2 and the Commission should therefore retract the charge and revise its finding.  This public utterance is essential in view of the adverse information given by the Commission to the press, charging Unit 2 with discrimination;

(iii)

the Commission be requested to report to the Minister of Labour that the matter has been resolved once the recommendations of this Board have been complied with;

(iv)

that the Commission recommend to the Minister that the costs of the parties in particular Unit 2, be borne by the Government in view of the fact that the case essentially involved legislative interpretation.

      By way of clarification, I wish it known that neither I nor my client at any time proposed that Vera Deighan had no right to make a complaint or that her complaint should be withdrawn; such references attributed to me referred specifically to the desire to have the Commission retract their charge of an act of discrimination against the Board. My client and I have not and do not challenge or quarrel with the right of a person to make a complaint that is not vexatious or frivilous.

      It is to be hoped that today we can resolve this matter to the satisfaction of all.  The Board of Trustees specifically wishes a retraction as indicated.  If such is not voluntarily and publically forthcoming, we will have no alternative but to apply to the courts for an order of certiorari requiring the Commission to reverse itself for want of jurisdiction.  It would be regretable if this cannot be accomplished without further proceedings.

      It seems strange that your report is to the Commission and not to the Minister who appointed you.  This being the case, I suggest that if a retraction is not forthcoming today as requested, that a time limit of two weeks be imposed for the Commission to respond.  This then will predetermine the point in time when the matter should be finally resolved to everyone's satisfaction or proceeded with further as indicated.

      DATED this 6th day of November, 1978.

J. Melville Campbell, Q.C.
Solicitor for the Board of Trustees of Administrative Unit 2.

*  *  *  *  *

EXHIBIT 4

CANADA
PROVINCE OF PRINCE EDWARD ISLAND
 
IN THE MATTER OF The Human Rights Act, R.S.P.E.I. 1975 Cap. H-12 and IN THE MATTER OF the complaint of Mrs. Vera Deighan against Unit #2 Board of School Trustees.

BRIEF ON BEHALF OF HUMAN RIGHTS COMMISSION

      This Inquiry resulted from a complaint received by the Human Rights Commission from Mrs. Vera Deighan.  The Human Rights Commission inquired into the matter as it was required to do by statute and was unable to effect a satisfactory settlement between the parties.  The matter was, therefore, referred to the Board of Inquiry by the Minister of Labour on the recommendation of the Human Rights Commission.

      A preliminary matter requiring a judicial interpretation of Section 1(2) of The Human Rights Act was raised by Counsel at the beginning of the Public Inquiry.  The Lieutenant-Governor-In-Council referred that matter to the Supreme Court of Prince Edward Island pursuant to Section 38 of the Judicature Act.

      We now have the benefit of the decision of the Supreme Court which decision has been received in evidence by the Board of Inquiry.  It is the position of the Human Rights Commission, that in light of that decision, no further evidence need be received as that Supreme Court decision effectively disposes of the case.

      The Human Rights Commission, therefore, submits that this Inquiry should be closed and a report made consistent with the requirements of the Human Rights Commission simply indicating, that in light of the decision of the Supreme Court of Prince Edward Island Unit #2 School Board, did not contravene The Human Rights Act in regard to the complainant Vera Deighan. The Human Rights Commission undertakes to respond directly to the Unit #2 School Board in respect to the written submission of Mr. Campbell on behalf of the Board.

      DATED this 10th day of November, 1978.

Gerard E. Mitchell
Attorney for the Human Rights Commission
 
To: Ronald V. Dalzell

Commissioner

*  *  *  *  *

EXHIBIT 5

CAMPBELL, McEWEN & McLELLAN
Barristers, Solicitors and Notaries
P.O. Box 35, 37 Central St.
Summerside, Prince Edward Island
C1N 4P6

November 16, 1978

Mr. Ronald Dalzell, Esq.
Farmer, Dalzell & Farmer
Barristers & Solicitors
Bank of Commerce Building
Charlottetown, P.E.I.

Dear Sir:
 
Re: Human Rights Commission Unit #2

V. Deighan.

This will confirm our receipt of the copy of the presentation by the Human Rights Commission in this matter and our consent to the filing of it into evidence.

Yours very truly,

Campbell, McEwen & McLellan
 
Per: J. Melville Campbell

JMC/da
 
 

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