Executive Summary: Key Legal and Evidentiary Issues

• Judicial review confined the Court to assessing the Nova Scotia Human Rights Commission’s screening decision, not the underlying police complaint or new allegations raised in Mr. Coward’s briefs.
• The evidentiary record was strictly limited to what was before the Commission; multiple paragraphs in the Applicant’s briefs were struck as relying on facts outside the record, being irrelevant, or asserting new, improper grounds of review.
• Procedural fairness was found satisfied because the human rights officer investigated, produced an Investigation Report, and Mr. Coward was given a meaningful opportunity to respond but chose not to do so.
• Reasonableness review focused on the Investigation Report and memorandum, which the Court treated as the Commission’s reasons and found to contain a coherent, detailed analysis of each alleged instance of discrimination.
• The Commission reasonably concluded that the human rights complaint was based on misunderstandings and frustrations with the OPCC/NSPRB processes, with insufficient evidence of discrimination or retaliation tied to race or colour.
• Monetary remedies, including general and special damages, were held to be unavailable on judicial review, and the Application was dismissed without costs, leaving the Commission’s dismissal of the complaint intact.

Facts of the case

Rubin A. Coward filed a human rights complaint with the Nova Scotia Human Rights Commission alleging that the Office of the Police Complaints Commissioner (OPCC) and the Nova Scotia Police Review Board (NSPRB) discriminated against him with respect to the provision of or access to services or facilities on the basis of race, colour, and retaliation. The alleged discrimination arose while he was acting as an “advocate” for a third party, Maurice Carvery, in a police complaint matter. Mr. Coward was self-represented throughout the judicial review. The Respondent, the Nova Scotia Human Rights Commission, was represented by counsel.

The background to the human rights complaint lies in a separate police complaint made by Mr. Carvery. On or about January 10, 2020, Mr. Carvery lodged a public complaint with the OPCC alleging that he had been subjected to racial profiling and harassment during a traffic stop on January 7, 2020. In a decision dated March 16, 2020, Inspector Greg Mason determined that the allegations in the public complaint were not sustained. Mr. Carvery then filed a notice of review on March 13, 2020, seeking a review of Inspector Mason’s decision before the NSPRB.

Around that time, Mr. Coward began communicating with the OPCC and NSPRB, identifying himself as a “community advocate” and representative of Mr. Carvery in the police complaint process. The materials from the OPCC and NSPRB, however, did not clearly establish that his asserted role as advocate was formally recognized or accepted by either decision-making body. A conference call to schedule the hearing and address preliminary matters was set by the NSPRB for February 26, 2021, but neither Mr. Coward nor Mr. Carvery attended. The NSPRB then scheduled a five-day hearing for July 12–16, 2021. In correspondence dated March 1, 2021, Mr. Coward stated that he and Mr. Carvery would not participate in that hearing. When the NSPRB convened on July 12, 2021, neither attended, and, on motion by the respondent parties before the Board, Mr. Carvery’s police complaint was dismissed.

While that police oversight process was unfolding, Mr. Coward initiated his own human rights complaint. On May 20, 2021, he filed the complaint (later amended on November 2, 2022) naming the OPCC and NSPRB as respondents. He alleged that, during his efforts to act as an advocate for Mr. Carvery, those bodies discriminated against him in the provision of their services because of his race, colour, and alleged retaliation. The record also indicated that Mr. Carvery filed his own separate human rights complaint in relation to the police complaint process.

The investigation and Commission’s decision

Human Rights Officer Jeff Spring conducted an administrative investigation of Mr. Coward’s complaint. He reviewed extensive materials, including a 244-page book of documents from the OPCC and NSPRB that chronicled the police complaint process, secondary sources related to race and police checks and to post-traumatic stress disorder, and the written submissions from all parties. He then produced a detailed Investigation Report dated November 23, 2023.

In that Investigation Report, the human rights officer set out the relevant law under the Nova Scotia Human Rights Act, including the Commission’s authority under s. 29(4) to dismiss a complaint where the best interests of the individual or class of individuals on whose behalf the complaint was made will not be served by continuing it, or where the complaint is without merit. He analyzed twelve separate examples of allegedly discriminatory treatment that Mr. Coward said he had experienced at the hands of the OPCC and NSPRB, tying each allegation back to the evidence in the record.

After reviewing all of the materials, the human rights officer concluded that the complaint was essentially rooted in misunderstandings, miscommunications, and frustrations about the nature, functions, and processes of the OPCC and NSPRB, rather than in discriminatory treatment based on race, colour, or retaliation. In one instance, where Mr. Coward alleged that he had been “berated,” the Investigative Report found that the record actually showed the reverse: certain communications from Mr. Coward to officials could themselves fairly be characterized as accusatory, berating, combative, and adversarial. Overall, the officer determined that reasonable efforts had been made by the OPCC and NSPRB to provide a viable review process to both Mr. Coward and Mr. Carvery, and that they ultimately chose not to avail themselves of that process once the complaint was referred for a public hearing.

Based on this analysis, the Investigation Report recommended that the complaint be dismissed under ss. 29(4)(a) and 29(4)(b) of the Human Rights Act, on the grounds that continuing with it would not serve the best interests of Mr. Coward and that the complaint was without merit. The report was provided to Mr. Coward and to counsel for the OPCC and NSPRB. The OPCC and NSPRB agreed in writing with the recommendation to dismiss. Mr. Coward, however, did not submit any response to the Investigation Report, despite being given that opportunity.

On March 25, 2024, Human Rights Officer Spring forwarded a memorandum to the Commissioners outlining his recommendation, attaching the Investigation Report and supporting materials for their consideration. The Commissioners met on April 17, 2024, and accepted the recommendation to dismiss. By letter dated April 19, 2024, the Nova Scotia Human Rights Commission formally notified Mr. Coward that his complaint had been dismissed pursuant to ss. 29(4)(a) and (b) of the Act.

The judicial review and preliminary evidentiary rulings

Mr. Coward commenced an application for judicial review in the Supreme Court of Nova Scotia on May 14, 2024. He alleged that the Commission’s dismissal of his complaint was not fair or equitable, advancing two main grounds: first, that the Commission had failed to accept a settlement offer he had provided to a human rights officer in or about December 2022; and second, that a third party had reviewed a video of the incident underlying the police complaint and agreed with Mr. Carvery’s version of events, which he believed should have influenced the Commission’s decision.

At the outset of the hearing, the Commission brought a motion to strike multiple paragraphs from Mr. Coward’s written briefs on the basis that they went beyond the proper record or raised new, improper grounds of review. The Court accepted that in judicial review the evidence is limited to the record that was before the decision-maker. The Commission pointed out that Mr. Coward had been expressly told about the process to seek to supplement the record and had been given a hearing date for such a motion; he neither filed materials nor attended that motion, which was ultimately dismissed. Despite this, he attempted to introduce new factual material and allegations through his written and reply briefs.

The Court examined the challenged paragraphs and found that many referred to correspondence and facts that were not before the Commission when it made its decision, related to the merits of Mr. Carvery’s separate police complaint rather than to Mr. Coward’s human rights complaint, or introduced new grounds of review such as alleged bias and discrimination by Commission staff and counsel that were never set out in his Notice of Judicial Review. The judge considered the Applicant’s explanations for missing prior deadlines, including that he was working on other matters, but concluded there were no extenuating circumstances justifying a late supplementation of the record.

As a consequence, the Court granted the Commission’s motion and struck the specified paragraphs from Mr. Coward’s initial brief on three interrelated bases: they relied on facts not in evidence before the Court, they were irrelevant to the judicial review, and they attempted to assert new grounds of review outside the Notice of Judicial Review. The Court also said it would apply the same principles in assessing the Applicant’s reply brief. In dealing with some of Mr. Coward’s written allegations of bias and unprofessional conduct against Commission counsel, the judge found those accusations to be unfounded, irresponsible, and without any evidentiary basis, emphasizing that the individuals in question were not Commissioners or decision-makers in the matter.

Procedural fairness analysis

The first main legal issue on the judicial review was whether the Nova Scotia Human Rights Commission had breached its duty of procedural fairness to Mr. Coward when it dismissed his complaint. Drawing on the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), the Court reiterated that procedural fairness requires that affected individuals be given a fair and meaningful opportunity to present their case and that administrative decisions be made impartially and through fair procedures.

In the context of a human rights investigation, the Court emphasized that the principal purpose of procedural fairness is to ensure interested parties can place relevant evidence and arguments before the decision-maker, and that the decision-maker fairly and impartially considers them. Here, the Court found that the process met that standard. A human rights officer had conducted a full investigation, reviewed the parties’ submissions and supporting documents, and produced a comprehensive Investigation Report. Mr. Coward received a copy of that report and was given an explicit opportunity to respond to and comment on it before the matter went to the Commissioners. He chose not to respond or provide further submissions.

Given these facts, the Court held that Mr. Coward had been afforded a meaningful chance to bring all relevant evidence and argument to the Commission’s attention. The Commissioners then considered the Investigation Report and associated materials in rendering their decision. There was nothing in the record to support the claim that the process was unfair or that the Commission acted with bias or improper motive. Accordingly, the Court dismissed the ground of review alleging a breach of procedural fairness.

Reasonableness of the Commission’s decision

The second principal issue was whether the Commission’s decision to dismiss the complaint under ss. 29(4)(a) and (b) of the Human Rights Act was reasonable. Applying the framework from Canada (Minister of Citizenship and Immigration) v. Vavilov, the Court explained that reasonableness review concentrates on the justification, transparency, and intelligibility of the decision-maker’s reasoning and whether the outcome falls within a range of acceptable, defensible outcomes in light of the facts and law.

In this case, the Commissioners had adopted the recommendation of the human rights officer without issuing extensive separate reasons. Consistent with prior authorities, the Court treated the Investigation Report, together with the officer’s memorandum, as constituting the Commission’s reasons. It found that the Investigation Report set out the nature of the allegations, the undisputed factual background, the parties involved, the positions taken by each side, and the central issues to be resolved. It also catalogued in detail all of the documents reviewed during the investigation and provided an eleven-page analysis, applying the applicable legal test to each individual allegation of discriminatory treatment.

The Court noted that the Investigation Report concluded that none of Mr. Coward’s twelve allegations of discrimination were borne out by the evidence, that some were factually incorrect, and that in one instance the evidence actually supported the opposite of what he alleged. The report also acknowledged the realities of systemic racism and the impact bureaucratic processes can have on complainants, but, even with that context in mind, it still found insufficient evidence of discrimination by the OPCC or NSPRB against Mr. Coward in his capacity as an “advocate.”

On that basis, the human rights officer recommended dismissal under ss. 29(4)(a) and (b), and the Commission adopted that recommendation. The Court held that this decision was justified, transparent, and intelligible. It reflected a rational chain of analysis that connected the factual record to the legal standards under the Human Rights Act. Mr. Coward did not present any persuasive argument or admissible evidence showing that the decision was unreasonable or fell outside the range of acceptable outcomes. The ground of review challenging the reasonableness of the decision was therefore dismissed.

Treatment of the alleged settlement and other claimed grounds

A particular focus of Mr. Coward’s judicial review was his assertion that the Commission’s failure to “accept” a settlement offer he had advanced in December 2022 rendered the decision unfair and inequitable. He relied on s. 32(2) of the Human Rights Act, which addresses referral of agreed settlements to the Commission for approval or rejection and certification. The Court carefully considered this argument and found that the provision was inapplicable. For s. 32 to be engaged, there must be a settlement actually agreed upon by the parties, the terms of which are then referred to the Commission for approval. In this matter, there was no settlement agreement between Mr. Coward and the OPCC or NSPRB, no agreed-upon terms presented to the Commission, and no obligation on the Commission to certify or notify parties under s. 32(2). Because no such settlement existed, there were no materials concerning it in the record, and the Court held that this alleged failure could not ground judicial review.

Mr. Coward’s second stated ground of review—that a third party had reviewed a video and agreed with Mr. Carvery’s position in the underlying police complaint—was also rejected as not being a proper basis for judicial review. The Court noted that this point went to the merits of Mr. Carvery’s police complaint under a different statutory scheme and involving a different complainant, not to the Commission’s decision on Mr. Coward’s separate human rights complaint. The judicial review before the Court concerned the latter only, and issues pertaining to the police complaint’s merits were beyond the scope of this proceeding.

Relief sought, remedies available, and overall outcome

In his judicial review application, Mr. Coward sought several forms of relief. He asked that the Commission’s April 19, 2024 decision dismissing his complaint be quashed. He also requested monetary awards, including $100,000 (the amount he identified as his prior settlement offer) from the OPCC and NSPRB, and an additional unspecified sum from the human rights officer who had been given that offer. The Court held that these forms of relief were not available in the context of judicial review, which is limited to prerogative and supervisory remedies such as certiorari, mandamus, prohibition, and declarations. Monetary damages and similar compensatory awards are not ordinarily granted on judicial review of an administrative decision.

After resolving the preliminary evidentiary motions, addressing the alleged settlement and third-party video grounds, and applying the standards for procedural fairness and reasonableness under Vavilov and Baker, the Court concluded that there were no valid or relevant grounds of review. It found that the Commission had afforded Mr. Coward a fair process and that the decision to dismiss his complaint as without merit and not in his best interests to continue was reasonable and well supported by the investigation record.

In the result, the Supreme Court of Nova Scotia dismissed Mr. Coward’s application for judicial review. The successful party in this proceeding was the Nova Scotia Human Rights Commission, whose decision was upheld in full. No damages, compensation, or costs were ordered in favour of any party. The Application was explicitly dismissed without costs, and no monetary award or quantum was granted; accordingly, there is no recoverable amount in favour of the successful party that can be determined from the decision.