Nova Scotia Human Rights Commission
|
Board of InquiryBoards of Inquiry The last stage in helping parties to resolve a human rights complaint is a Board of Inquiry.The Board of Inquiry is an independent administrative tribunal separate and apart from the Nova Scotia Human Rights Commission. The Board of Inquiry Chair (adjudicator, referred to as “Board Chair”) has the role of assisting the parties, including the Commission, to resolve the issues. Should the parties be unable to resolve their dispute, then the Board Chair will make a finding of fact by providing a written decision. How Boards of Inquiry are Created The Commissioners decide if a Board of Inquiry should be created. A Board of Inquiry is overseen by a Board Chair. There is a roster of persons who can sit as Board Chairs. The Chief Judge of the Provincial Court of Nova Scotia chooses someone from the roster for any complaint referred by the Commission to a Board of Inquiry. This nomination is then approved by the Commission. The roster for Board of Inquiry Chairs is created by an independent selection committee which evaluates their qualifications. The minimum qualifications currently are:
In addition, the independent selection committee also considers other qualifications noted below. In future Board Chairs will also have restorative justice experience and be familiar with its principles. These additional current qualifications are:
Relational-based Dispute Resolution The Nova Scotia Human Rights Commission, through its 2012 vision statement and strategic goals, commits to building and strengthening relationships, which preserves and protects our human rights. The Commission had at times struggled with the harms frequently created by the legalistic and adversarial traditional Board of Inquiry processes. From this struggle a new model emerged: The Restorative Board of Inquiry is the Commission’s answer to reducing those harms. The traditional Board of Inquiry is better suited for handling technical issues, and will still be available. Restorative Boards of Inquiry are offered to help resolve emotional harms, and will be the mainstay of the Commission’s Board of Inquiry work. When are Complaints referred to a Board of Inquiry? If the parties have been unable to resolve the complaint through a resolution conference, a recommendation may be made by the human rights officer to the Commissioners to refer the matter to a Board of Inquiry. Factors the officer considers in formulating the recommendation are:
Public Inquiries and Confidentiality Both Boards of Inquiry, the traditional Board of Inquiry and the Restorative Board of Inquiry, are public. Settlements/plans created after the appointment of a Board of Inquiry are not confidential, since the Commission has considered there is a public interest in sending the matter to a Board of Inquiry. A “risk of harm” must be shown by a party to justify having a confidentiality term included in an agreement. This harm is difficult to show. Confidentiality at the Board of Inquiry stage is discouraged, and is generally not considered to be in the public good. This is because human rights law is public law, which means the public is harmed when breaches happen. The public interest looks at how treating people poorly from a human rights standpoint can have an impact on the larger group sharing that characteristic, not just between the individuals. Persons with protected characteristics are particularly vulnerable to abuse and poor treatment and therefore require greater protections. Historically they have also been disadvantaged in areas such as education, social positioning and networking, accumulation of wealth and access to employment. Traditional or Restorative Board of Inquiry? The traditional Board of Inquiry closely resembles a civil trial (although the rules of evidence are greatly relaxed). Traditional Boards of Inquiry are helpful when technical issues are unresolved. For example, disputes that cannot be resolved when the law is unclear on a particular issue may be suited to a traditional inquiry. The parties in these instances may agree on facts which they then provide to the Chair. With these facts and arguments presented, the Chair determines what law should be applied. If the parties have experienced significant emotional harms and conflict (which is typically the case), a Restorative Board of Inquiry is recommended. In the Restorative Board of Inquiry, a safe space is created. In this forward-looking process, parties and members of their communities can share their perspectives of what happened in a non-adversarial setting. The purpose of sharing this information is to understand the harms so parties can collaborate on a plan to repair and eventually prevent harms. The Plan also considers the impact, large and small, on the community. Sometimes it is a great opportunity to “fix the system.” It can even lead to the parties creating a consent order to confirm the change. This change then has the force of law. The Restorative Board of Inquiry has two stages. The first stage is facilitated by a restorative facilitator who works to prepare the parties to meet together and resolve the matter. The second stage is facilitated by the Board Chair who confirms the settlement/plan or assists the parties to resolve any remaining issues. The Restorative Board of Inquiry (which includes stages one and two) reorients the parties away from asking backward-looking, blame-focused, “truth”-finding questions. Instead, the Restorative Board of Inquiry asks relational questions such as “How were you or others affected?”, “What underlying issues were at play?” or “What do you need to move forward?” The answers to these questions can build a foundation of meaning and insight between the parties. During stage two, the Board Chair actively questions the participants of the Restorative Board of Inquiry. The parties may also ask the Board Chair for a finding of fact or law on a particular point to assist them with the Plan. As noted above, should the parties be unable to resolve an issue, then the Board Chair will make a finding of fact and provide a written decision with reasons. Role of Legal Counsel In a traditional Board of Inquiry, the Board Chair generally establishes all the facts and remedies by having legal counsel ask the questions. In the Restorative Board of Inquiry, lawyers may participate with insights but do not ask questions. The Commission has its own legal counsel, who works with all the parties to resolve the issues and to address and reduce harms. She represents the public interest and the interest of the Nova Scotia Human Rights Commission. She does not represent either of the parties, although she can help either side with procedural questions and explanations of the process. Since she only represents the Nova Scotia Human Rights Commission, she cannot provide the parties any legal advice. Both Boards of Inquiry are set up so that a lawyer is not required, although parties may have one if they wish. Parties who hire legal counsel must pay for it themselves. Legal costs cannot currently be awarded, unlike in regular courts. Although the Nova Scotia Human Rights Act was recently changed to allow for these costs, no regulations have been written to allow it. To see Board of Inquiry decisions, click here. To see the Restorative Board of Inquiry Model, click here. To read the Restorative Board of Inquiry policy, click here. To see the legal research paper that supports the procedures of a Restorative Board of Inquiry, click here. ===== Our current Board of Inquiry Chair roster: E.A. Nelson Blackburn QC |