In the recent decision of Natural Resources and Energy Development v Blaney, 2023, NBCA 61, the New Brunswick Court of Appeal (NBCA) upheld the decision of Human Rights Commission to refer the human rights complaint filed by the former CEO and President of Efficiency NB to the Labour and Employment Board for a hearing.
In 2012, Margaret-Ann Blaney, a former Progressive Conservative member of the New Brunswick Legislative Assembly, was appointed CEO and President of Efficiency NB. When the New Brunswick Liberals came into power in 2014, Efficiency NB was dissolved and Ms. Blaney was dismissed under An Act to Dissolve the Energy Efficiency and Conservation Agency of New Brunswick, SNB 2015, c. 3 (the "Act to Dissolve"). The Act to Dissolve included specific provisions that no action, application or other proceeding for dismissal shall be brought before any court of administrative body in the Province as a result of the revocation of the appointment of the President.
In March 2014, Ms. Blaney filed a complaint under the Human Rights Act, RSNB 2011, c. 171 in which she alleged the elimination of her position was politically motivated and in violation of the Human Rights Act. Ms. Blaney requested an investigation into her dismissal, claiming she had been the victim of discrimination in employment because of her political belief or activity.
The NBCA considered whether the Human Rights Commission had jurisdiction to investigate the complaint, given the provisions of the Act to Dissolve. Specifically, the Court of Appeal addressed whether the Act to Dissolve was sufficiently specific to "override" the Human Rights Act with respect to the subject matter of Ms. Blaney's complaint.
The Court of Appeal discussed at length the fundamental importance of human rights legislation and the high threshold required to supersede it. The Court of Appeal reiterated the "quasi-constitutional" status of the Human Rights Act.
The Court of Appeal explained that because the Human Rights Act is quasi-constitutional, it will take precedent over conflicting legislation unless a contrary intention is "clearly" expressed in the conflicting statute. Because the Act to Dissolve did not do that, the Human Rights Act prevailed.
The Court of Appeal expanded on the high threshold required to "oust" the jurisdiction of the Human Rights Act. Citing the Supreme Court of Canada in Insurance Corporation of British Columbia v. Heerspink et al.,  2 SCR 145, the legislature must include "express and unequivocal language" in order to supersede human rights legislation. If a human rights provision conflicts with other "particular and specific" legislation, the human rights provision will prevail.
For all these reasons, the Court of Appeal held that the Act to Dissolve's provisions were not sufficiently specific to conclude that the Legislature intended to override the Human Rights Act. The Commission was subsequently permitted to refer the complaint filed by Ms. Blaney to the Board of Inquiry.
Key Takeaways for Employers
This decision is a helpful reminder that the protections afforded by human rights legislation cannot be easily removed. Given its quasi-constitutional status, the Human Rights Act will generally take precedent over conflicting legislation. Where legislation seeks to override the primacy of the Human Rights Act, it must do so using clear, unequivocal, and express language. A failure to do so will result in a finding that the Human Rights Act continues to apply.
This article was written with assistance from Dave Comeau, a summer student in Cox & Palmer's Fredericton office.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.