Executive Summary: Key Legal and Evidentiary Issues

• Whether delay in the Human Rights Commission’s referral impaired Northwood’s ability to respond fairly before a Board of Inquiry.

• Determination of whether the delay constituted an abuse of process due to inordinate delay causing significant prejudice.

• Consideration of justified delay from external factors such as COVID-19 restrictions and jurisdictional uncertainty following Horrocks.

• Assessment of Northwood’s failure to act promptly in gathering evidence after notification of the complaint.

• Distinction between prejudice caused by the delay and prejudice inherent in the existence of proceedings.

• Balancing fairness to Northwood with the need to permit Ms. Bundy’s complaint to be heard on its merits.

Facts of the case

Northwoodcare Halifax Incorporated (Northwood) provides long-term care services. On May 13, 2019, it terminated Angeline Bundy’s employment following allegations of abuse of a resident. Ms. Bundy filed a human rights complaint on November 1, 2019, alleging her dismissal was motivated by discrimination based on her African Canadian ancestry. The Human Rights Commission (HRC) began an investigation that faced delays due to the COVID-19 pandemic and legal uncertainty following Northern Regional Health Authority v. Horrocks, 2021 SCC 42, regarding jurisdiction over unionized workplaces. The investigation concluded with a report on March 8, 2024, and on June 26, 2024, the HRC referred the complaint to a Board of Inquiry.

Discussion of policy terms and relevant clauses

The case did not concern insurance policy terms or specific contractual clauses. Instead, it focused on procedural fairness principles, applying the legal framework from Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, and Law Society of Saskatchewan v. Abrametz, 2022 SCC 29. The court considered whether delay was inordinate, whether it caused significant prejudice, and whether it resulted in an abuse of process warranting a stay.

Outcome of the case

Northwood sought judicial review to quash the referral to the Board of Inquiry, claiming delay had breached procedural fairness and constituted an abuse of process. The Supreme Court of Nova Scotia dismissed the application. The court found:

• The delay of nearly four years and eight months was largely explained by external factors including the COVID-19 pandemic and jurisdictional issues arising from Horrocks.

• Northwood failed to prove that the delay caused significant prejudice affecting hearing fairness or otherwise amounting to an abuse of process.

• Witnesses could still be located, documentary records existed to refresh recollection, and Northwood’s own delay in investigating undermined its claim of prejudice.

• Preventing Ms. Bundy’s complaint from proceeding would be unfair, as she was not responsible for the delay.

Accordingly, the referral to the Board of Inquiry was upheld and Northwood’s application for judicial review was dismissed.

There was no monetary award, costs, or damages ordered in this decision.