Human Rights Tribunal Rejects Preliminary Motion to Dismiss Complaint

OUTCOME: Allowed

Canadian Human Rights Tribunal Tribunal canadien des droits de la personne Citation: 2024 CHRT 106 Date: September 25, 2024 File Nos.: HR-DP-2818-22, HR-DP-2819-22 & HR-DP-2820-22 Between: [NAME_1] Complainant - and - Canadian Human Rights Commission Commission - and - [NAME_2] [NAME_3], Assembly of First Nations & Crown-Indigenous Relations and Northern Affairs Canada Respondents Ruling Member: [NAME_4] of Contents TOC \o "1-3" \h \z \u I. Introduction PAGEREF _Toc178155066 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000360036000000 II. Decision PAGEREF _Toc178155067 \h 2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000360037000000 III. Issue PAGEREF _Toc178155068 \h 2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000360038000000 IV. Analysis PAGEREF _Toc178155069 \h 2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000360039000000 A. The test for summary dismissal PAGEREF _Toc178155070 \h 2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000370030000000 B. What is the legal basis upon which [NAME_5] could be held liable for [NAME_6]’s actions? PAGEREF _Toc178155071 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000370031000000 C. What is [NAME_3] and what were the roles of [NAME_1] and [NAME_6] within it? PAGEREF _Toc178155072 \h 5 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000370032000000 D. What does [NAME_1] specifically allege against [NAME_5]? PAGEREF _Toc178155073 \h 7 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000370033000000 E. What is [NAME_5] and what was [NAME_6]’s position within it? PAGEREF _Toc178155074 \h 8 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000370034000000 F. What is the basis for [NAME_1]’s claim, and could the s. 65(1) criteria be satisfied? PAGEREF _Toc178155075 \h 10 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000370035000000 G. Additional material that leaves open the possibility for [NAME_5]’s liability under s. 65(1) of the Act PAGEREF _Toc178155076 \h 12 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000370036000000 (i) [NAME_5] [NAME_5] Chief has been [NAME_3]’s Executive Chair for years PAGEREF _Toc178155077 \h 13 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000370037000000 (ii) [NAME_5] National Chief’s mandate letter to [NAME_6] _Toc178155078 \h 14 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000370038000000 (iii) [NAME_5] annual reports PAGEREF _Toc178155079 \h 14 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000370039000000 (iv) [NAME_3]’s organizational chart PAGEREF _Toc178155080 \h 15 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000380030000000 H. Conclusions regarding the additional facts PAGEREF _Toc178155081 \h 16 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000380031000000 V. [NAME_1]’s request to reopen the hearing PAGEREF _Toc178155082 \h 17 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000380032000000 VI. Order PAGEREF _Toc178155083 \h 17 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003100370038003100350035003000380033000000 I. Introduction [ 1 ] The Complainant, [NAME_1], filed human rights complaints against three respondents, the Assembly of First Nations ([NAME_5]), the [NAME_2]-Nova Scotia-Canada [NAME_3] (the “[NAME_3]”), and Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC). The Canadian Human Rights Commission (the “Commission”) referred the complaints to the Tribunal for inquiry. [ 2 ] [NAME_5] has made a preliminary motion to dismiss the complaint against it. The parties are still not due to file their Statements of Particulars (SOP) under Rules 18 to 20 of the Canadian Human Rights Tribunal Rules of Procedure, 2021, SOR/2021-137 (“Rules of Procedure”). [ 3 ] [NAME_1] alleges in all three complaints that [NAME_3]’s Executive Chair, [NAME_6], harassed her based on several prohibited grounds of discrimination while she served on one of [NAME_3]’s committees as the representative of the [COMPANY_7] ([NAME_7]). [NAME_1] did not name [NAME_6] as an individual respondent in any of the complaints. At the time, [NAME_6] was also a member of [NAME_5]’s Board of Directors (the “[NAME_5]”), sitting as the [NAME_5] Chief for the Nova Scotia and Newfoundland region. [ 4 ] [NAME_5] submits that it was never a member of [NAME_3] and that it had nothing to do with [NAME_6]’s involvement in [NAME_3]. It maintains that it can therefore not be held liable for [NAME_6]’s conduct and that it should not have been named as a respondent. [ 5 ] [NAME_1] argues that to have the complaint summarily dismissed, [NAME_5] must show that it is plain and obvious that the complaint against it cannot succeed. [NAME_1] maintains that [NAME_5] has failed to do so and that an inquiry into the full circumstances and context of the complaints is required before the Tribunal can rule on the question. [ 6 ] [NAME_5], [NAME_1], and the Commission filed submissions on the motion. CIRNAC did not file any, which I understand to mean that it takes no position on it.

II. Decision [ 7 ] [NAME_5]’s motion to summarily dismiss the complaint is denied. [ 8 ] I find that it is not plain and obvious that [NAME_1]’s complaint against [NAME_5] has no reasonable prospect of success. The evidence adduced by the parties in support of their submissions leaves open the possibility that [NAME_5] could be found vicariously liable for [NAME_6]’s acts, especially considering that at this stage of the hearing process, the parties have yet to file their SOPs or exchange their disclosure material. [ 9 ] Two months after the oral hearing on the motion was held, [NAME_1] asked to reopen the hearing to introduce new evidence. Given my decision denying [NAME_5]’s motion, [NAME_1]’s request is also denied as moot.

III. Issue [ 10 ] Is it plain and obvious that [NAME_1] has no reasonable prospect of successfully proving that [NAME_6] committed the alleged discriminatory practice as an officer, a director, an employee or an agent of [NAME_5] acting in the course of his employment? IV. Analysis A. The test for summary dismissal [ 11 ] There is consensus among the parties that the Tribunal is not obliged to hold a full hearing on the merits regarding every complaint that the Commission refers to it. As the Federal Court noted in Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2012 FC 445 at paras 138–140 [ Caring Society ], the Tribunal may dismiss a case in advance of a full hearing, but it should exercise this authority cautiously and “only in the clearest of cases.” [ 12 ] The parties appear to disagree, however, on what must be established to summarily dismiss a complaint. [NAME_1] contends that for a complaint to be summarily dismissed, the Tribunal would have to conclude that it is plain and obvious that the complaint would fail if it went to a hearing. She makes an analogy to tests applied for motions to strike in civil proceedings ( [NAME_8] v. [NAME_9], 2003 SCC 69 at para 15). [ 13 ] [NAME_5], relying on authorities, including Caring Society , at paras 137, 145–146, and [NAME_8] v. [COMPANY_10]. , 2022 CHRT 20, at paras 110 and 131, submits that the Tribunal may dismiss a complaint on a summary basis where: the complaint has no reasonable prospect of success, where the respondent is “clearly and obviously not the right party,” where the dismissal of the complaint has the potential to narrow the issues for inquiry, where summary dismissal is the most just, informal and expeditious means of resolving the issue, where the complaint amounts to an abuse of process, or where fairness dictates. [ 14 ] I find that some of these items are not really tests. For instance, items ii and iii are really more of a policy justification for why in certain circumstances it makes sense for a Tribunal to have the authority to dismiss cases summarily, as is evident from a closer reading of Caring Society at para 145. [ 15 ] In any event, [NAME_5]’s submissions basically centred on the first criterion. I will nonetheless address some of the other items later in this ruling. [ 16 ] I note that in [NAME_11] v. Employment and Social Development Canada , 2023 CHRT 23 at para 79, the Tribunal based its analysis on what amounts to a convergence of the first criterion in [NAME_5]’s list and the test proposed by [NAME_1]. The Tribunal held that a complaint must be dismissed where it was “plain and obvious” the complaint’s allegations had “no reasonable prospect of success.” I agree with this approach. [ 17 ] In addressing this question, I do not need to only look at the allegations in the complaint to assess whether it clearly and obviously has no reasonable prospect of success. I can also consider additional evidence presented by the parties with their submissions ( Caring Society at para 149).

Accordingly, at the Case Management Conference Call convened to determine how [NAME_5] motion would be dealt with, there was consensus between the parties that they could file affidavits in support of their submissions and that the affiants could be cross-examined if a party so requested. [NAME_5] ultimately filed an affidavit, which was sworn by [NAME_5]’s Acting Chief Executive Officer, [NAME_12]. None of the other parties asked to cross-examine her. [ 18 ] Furthermore, the parties filed hundreds of pages of documents for my consideration regarding an earlier motion from the Commission about which I issued a ruling ( [NAME_1] v. [NAME_2] [NAME_3] , 2023 CHRT 41 [ [NAME_1] No. 1 ]). [NAME_5] and [NAME_1] produced hundreds of additional pages of documents with their submissions on this motion as well. All these documents form part of the Tribunal’s official record and, as I did for [NAME_1] No. 1 , I rely on all the filed documents and treat them as authoritative for the purposes of this motion, unless a party made any specific challenge. B. What is the legal basis upon which [NAME_5] could be held liable for [NAME_6]’s actions? [ 19 ] [NAME_1] alleges in her complaint that [NAME_6] harassed her. Although there is no allegation that [NAME_5] itself directly harassed her, [NAME_5] could still be held vicariously liable for [NAME_6]’s actions if the criteria set out in s. 65(1) of the Canadian Human Rights Act , RSC 1985, c. H-6 (the “Act”) are met. [ 20 ] Section 65(1) states that a person, association, or organization is deemed to have committed the acts of its officers, directors, employees, or agents made in the course of their employment : Acts of employees, etc. 65 (1) Subject to subsection (2), any act or omission committed by an officer, a director, an employee or an agent of any person, association or organization in the course of the employment of the officer, director, employee or agent shall, for the purposes of this Act, be deemed to be an act or omission committed by that person, association or organization. Exculpation (2) An act or omission shall not, by virtue of subsection (1), be deemed to be an act or omission committed by a person, association or organization if it is established that the person, association or organization did not consent to the commission of the act or omission and exercised all due diligence to prevent the act or omission from being committed and, subsequently, to mitigate or avoid the effect thereof. Présomption 65 (1) Sous réserve du paragraphe (2), les actes ou omissions commis par un employé, un mandataire, un administrateur ou un [NAME_13] dans le cadre de son emploi sont réputés, pour l’application de la présente loi, avoir été commis par la personne, l’organisme ou l’association qui l’emploie. Réserve (2) La personne, l’organisme ou l’association visé au paragraphe (1) peut se soustraire à son application s’il établit que l’acte ou l’omission a eu lieu sans son consentement, qu’il avait pris toutes les mesures nécessaires pour l’empêcher et que, par la suite, il a tenté d’en atténuer ou d’en annuler les effets. [ 21 ] If a complainant proves these facts, then a respondent may still be able to exculpate itself from liability if it proves that it did not consent to the commission of the discriminatory act and that it exercised all due diligence to prevent it from being committed and, subsequently, to mitigate or avoid its effect (s. 65(2) of the Act). [ 22 ] Thus, for the motion to succeed, [NAME_5] must demonstrate that it is plain and obvious that [NAME_1] has no reasonable prospect of proving that [NAME_6] was an officer, director, employee, or agent of [NAME_5] who harassed her within the meaning of the Act in the course of his employment with [NAME_5]. C. What is [NAME_3] and what were the roles of [NAME_1] and [NAME_6] within it? [ 23 ] As I explained in my ruling in [NAME_1] No. 1 , [NAME_3] is not a corporation or agency like those that are often named as respondents in human rights complaints. [ 24 ] [NAME_3] was established in 1997 as a “partnership between the [NAME_14], the [NAME_15] and the [NAME_16], to strengthen relationships and to resolve issues of mutual concern affecting Mi’kmaw communities.” [ 25 ] [NAME_3] was formed through a Memorandum of Understanding (MOU) that was signed on July 2, 1997. The parties to the MOU are Her Majesty the Queen in Right of Canada, Her Majesty the Queen in Right of Nova Scotia, and the thirteen [NAME_2] (or the [NAME_2] of Nova Scotia). [NAME_5] is not a signatory. [ 26 ] The MOU states that the Canadian and Nova Scotian governments agree to share the costs associated with the participation of representatives of the [NAME_2] of Nova Scotia. [ 27 ] The parties to the MOU adopted the Terms of Reference for [NAME_3] as contemplated in the MOU, which established [NAME_3]’s “organizational structure” . This structure consists of the Executive Committee, the Officials Committee, and the Working Committees. A Steering Committee was later created as well. [ 28 ] The Executive Committee mandates [NAME_3]’s agenda, issues, parameters, and direction. It has the final decision-making authority for [NAME_3] and must approve all decisions reached by any other committee. The Executive Committee is comprised of the representatives of the [NAME_2] of Nova Scotia (i.e., the [NAME_17] (Grand Chief) of the [NAME_2] and the 13 [NAME_17]), the Federal Minister of Indian Affairs and Northern Development or their delegate, and the Minister responsible for Aboriginal Affairs of Nova Scotia or another authorized minister (their titles when the MOU was signed). [ 29 ] The Officials Committee consists of representatives from several [NAME_2] organizations including the [NAME_7]. The Officials Committee coordinates, directs, and assigns activities based on decisions made by the Executive Committee regarding [NAME_3]’s agenda, issues, parameters, and direction. [ 30 ] The Terms of Reference stipulate that the Executive Committee will appoint an independent Chair (the “Executive Chair”) to host and provide organizational requirements to the Executive and Officials Committees. The Terms of Reference do not specify any selection criteria for the Executive Chair position. In 2011, the Executive Committee appointed [NAME_6] to be [NAME_3]’s Executive Chair. [ 31 ] In her complaints, [NAME_1] alleges that, sometime before 2009, she competed and won a paid position with the [NAME_7] as its liaison to [NAME_3] (i.e., the [NAME_7]’s representative on the Officials Committee). Around 2009, she was elected president of the [NAME_7]. She held that political position while continuing to work for the [NAME_7] as its [NAME_3] liaison. [ 32 ] It is in her capacity as [NAME_3] liaison that [NAME_1] dealt with [NAME_6]. [ 33 ] According to [NAME_1]’s complaints, concerns about [NAME_6]’s conduct began to emerge around May or June 2017. She brought her concerns to various officials and her lawyer sent a letter detailing them. In February 2018, [NAME_3]’s Executive Committee ordered an independent investigation into the matter. The investigation report found that [NAME_6] had engaged in bullying, harassment, and gender discrimination. [ 34 ] CBC News reported on the investigation report on July 19, 2019. Some time afterwards, [NAME_6] resigned from his position as [NAME_3]’s Executive Chair. [ 35 ] On October 30, 2019, [NAME_1] filed three human rights complaints with the Commission. The three complaints are worded identically, but each complaint names a different one of the three respondents. Notably, [NAME_6] is not named as a respondent in any of the complaints. D. What does [NAME_1] specifically allege against [NAME_5]? [ 36 ] As with the other two complaints, the allegations in the complaint against [NAME_5] are three pages long. In the first two pages, [NAME_1] recounts the incidents of harassment regarding [NAME_6], the reports she made to some Chiefs about his conduct, their failure to address her concerns, and [NAME_6]’s reaction. She explains that as a result of these incidents, she had to take medical stress leave. She also refers to the investigation and its report that found [NAME_6] had discriminated against her and the [NAME_7] as a whole. Statements attributed to him were found to amount to bullying and harassment. [ 37 ] On the last page of the complaints, [NAME_1] describes the negative effect of the harassment on her and the steps she took to resolve the situation. She had to step down as [NAME_7] president and leave her employment with [NAME_3], which she considers a constructive dismissal. She stopped attending any [NAME_2] events. She felt stigmatized and feared for her well-being. She ceased all contact with the media. Having become unemployed, she suffered financial and emotional hardships. She had difficulty finding legal counsel to help her. [ 38 ] [NAME_5] is only mentioned in the complaints’ third paragraph of the first page, where its name is referred to twice. The paragraph reads as follows: Finally, after obtaining a lawyer, and sending an official letter along with repeated calls for a response in February of 2018 an independent investigation was ordered by the Executive committee. The investigation was completed in September 18, 2018 at approximately thirty pages. I received a three-page summary in November of 2018 with the email message from investigator that I should be hearing soon from officials on next steps. Since that date there has been no response and silence up until a CBC report on July 18, 2019 outlining the report findings and discussing a motion by the [NAME_7] made in December 2018 calling for the resignation of [NAME_6] from his position as [NAME_5] vice chief . His position with [NAME_5] was the nexus for his appointment as [NAME_3]. That motion was not carried out and was reported on in the CBC report. The following are some dates of major developments: ( emphasis added ) [ 39 ] Of the two [NAME_5] references in the paragraph, the most relevant to the question of [NAME_5]’s involvement in this case is the second one: that [NAME_6]’s position with [NAME_5] was the nexus for his appointment as [NAME_3]. [ 40 ] As mentioned earlier, an organization can be vicariously liable under s. 65(1) of the Act for the acts of its directors, officers, agents, or employees committed in the course of their employment. [NAME_6]’s alleged conduct occurred while performing the functions of [NAME_3]. Was this conduct made in the course of his “employment” with [NAME_5]? E. What is [NAME_5] and what was [NAME_6]’s position within it? [ 41 ] [NAME_5] provided a copy of its constituting document, the Charter of the Assembly of First Nations (the “[NAME_5]”). According to [NAME_12]’ affidavit, [NAME_5] is incorporated as a not-for-profit corporation, pursuant to the Canada Not-for-profit Corporations Act , S.C. 2009, c.

23. It serves as a national political [NAME_3] for First Nations in Canada. [ 42 ] All First Nations in Canada have the right to be members of [NAME_5] (Art. 4 of [NAME_5]). At least once a year, the Chiefs of all member First Nations gather to examine and vote on issues of interest to their constituents. Together, these representatives are referred to as the “First Nations-in-Assembly.” They provide direction to [NAME_5] and define its mandate by voting on key issues. In this manner, according to [NAME_12], they perform a function akin to Members of Parliament. [ 43 ] In the execution of this mandate, First Nations from each region across Canada must elect a chosen representative (a “[NAME_5] Chief”) to act as their emissary. The [NAME_5] are elected by the Chiefs in their regions, generally delineated along provincial and territorial lines. One of those listed regions is Nova Scotia and Newfoundland (Art. 17(3) of [NAME_5]). [NAME_5] [NAME_5] are elected for three-year terms. The Chiefs of Nova Scotia and Newfoundland region first elected [NAME_6] as their [NAME_5] Chief in 2011. The term of office of an [NAME_5] [NAME_5] Chief may be terminated if the Chiefs of that region so decide at a meeting called for that purpose (Art. 17(4) of [NAME_5]). [ 44 ] The [NAME_5] serve on the [NAME_5], together with the National Chief who is elected by the First Nations-in-Assembly. The [NAME_5] is also sometimes referred to as [NAME_5]’s Executive Committee ([NAME_5]’s By-Law No. 1). The Chairperson of the Knowledge Keepers’ Council is also a member of the [NAME_5], in an advisory capacity (Art. 17-19 of [NAME_5]). [ 45 ] The [NAME_5] is responsible for implementing the directions of the First Nations-in-Assembly. [NAME_5] Chief—or director—is given responsibility for a discrete portfolio (e.g., education, health, etc.). All are accountable to the First Nations-in-Assembly and are subject to public disclosure requirements. In this manner, according to [NAME_12], [NAME_5] perform a function akin to that of a Cabinet Minister. [ 46 ] [NAME_5] submits that, as an institution, it takes its direction from the [NAME_5]. The [NAME_5] do not derive their authority from [NAME_5], but rather from the Chiefs of their region who elect them. [NAME_5] retains only a small measure of discretion with respect to [NAME_5]. They remain free to engage in other activities, outside and unrelated to [NAME_5], provided that, in doing so, they do not engage in conduct detrimental to the organization. [ 47 ] The [NAME_5] may take steps to suspend or expel a [NAME_5] Chief who has violated [NAME_5], [NAME_5]’s By-laws, or any policies, or who has carried out conduct detrimental to [NAME_5], or for any other reasonable ground (section 16 of [NAME_5] By-Law No. 1). [ 48 ] [NAME_5] submits that it is on this basis that the [NAME_5] voted to suspend [NAME_6], after learning of the Complainant’s allegations in July 2019 from the CBC News report. [NAME_5] began conducting its own investigation. However, before it was completed, on October 11, 2019, the [NAME_17] held a special meeting at which they decided to remove [NAME_6] as their [NAME_5] Chief as contemplated in Article 17(4) of [NAME_5]. He therefore automatically ceased sitting on the [NAME_5]. [ 49 ] [NAME_5] points out that [NAME_3]’s Terms of Reference do not require the [NAME_5] Chief for Nova Scotia and Newfoundland to be appointed Executive Chair of [NAME_3]. F. What is the basis for [NAME_1]’s claim, and could the s. 65(1) criteria be satisfied? [ 50 ] It is evident from [NAME_3]’s and [NAME_5]’s constitutive documents that [NAME_5] as an organization did not select [NAME_6] to serve as Executive Chair of [NAME_3]. [NAME_3]’s Executive Committee appointed him as an independent Chair, in accordance with [NAME_3]’s Terms of Reference. [ 51 ] With that understanding, what is the basis for [NAME_1]’s claim in her complaints that [NAME_5] should be held vicariously liable for [NAME_6]’s alleged discriminatory practices while serving as [NAME_3]? [ 52 ] As cited earlier, her complaint alleges first that her own employer, the [NAME_7], adopted a motion calling for [NAME_6] to resign from the [NAME_5]. [NAME_12] states in her affidavit that when [NAME_5] heard of [NAME_6]’s conduct from the CBC News report of July 19, 2019, the [NAME_5] acted by suspending [NAME_6] from the [NAME_5]. [ 53 ] [NAME_12] states that it was important that [NAME_5] members uphold and exemplify core values espoused by [NAME_5], which include refraining from bullying or harassing. So, steps were taken to mitigate or prevent further harm. [NAME_5] launched its own external investigation into the allegations made against [NAME_6]. However, before the investigation could be completed, the Chiefs of Nova Scotia and Newfoundland voted to remove [NAME_6] from the position of [NAME_5] Chief. This meant that he automatically ceased being a member of the [NAME_5]. [ 54 ] I agree with [NAME_5] that the mere allegation that [NAME_7] called on [NAME_5] to remove [NAME_6] from the [NAME_5] would not establish that the criteria of s. 65(1) of the Act are met (i.e., that [NAME_6]’s acts while serving as [NAME_3] were committed as an officer, director, employee, or agent of [NAME_5] in the course of his “employment” with [NAME_5]). [ 55 ] What about [NAME_1]’s second allegation? She states in the complaint that [NAME_6]’s position with [NAME_5] “was the nexus for his appointment as [NAME_3].” [ 56 ] This statement alone would not appear at first view to satisfy the criteria in s. 65(1) either. The term “nexus” appears to imply that but for his position as [NAME_5] Chief, he would not have held the role of [NAME_3]. According to [NAME_3]’s Terms of Reference, however, the selection of [NAME_3] is made by [NAME_3], which is comprised of the 13 [NAME_2] along with the representatives of the Canadian and Nova Scotia governments. There are no selection criteria for the Executive Chair position mentioned in the Terms of Reference, nor is there any mention of [NAME_5] having a role in that decision. I also note that it is the Chiefs of Nova Scotia and Newfoundland who select their [NAME_5] Chief. [ 57 ] Even if it were true that [NAME_3]’s Executive Committee elected [NAME_6] to be Executive Chair because of his status as [NAME_5] Chief, how would that serve to establish the requirements of s. 65(1) of the Act, namely that [NAME_6] is an officer or director of [NAME_5] and that, as [NAME_3], he was acting in the course of his “employment” with [NAME_5]? [ 58 ] I am satisfied that as [NAME_5] Chief and member of the [NAME_5], [NAME_6] could be considered a director or officer of [NAME_5], within the meaning of s. 65(1) of the Act. [ 59 ] As for the second element in s. 65(1), the complaint does not explicitly state that [NAME_6] was acting in the course of his employment with [NAME_5] while working as [NAME_3]. According to [NAME_12]’ affidavit, [NAME_5] has no financial record of any claims or payments having been made to [NAME_6] relating to his work at [NAME_3]. According to the Terms of Reference, [NAME_3]’s activities are funded on a shared basis by the governments of Canada and Nova Scotia. There is no mention of [NAME_5] in the MOU and the Terms of Reference. [ 60 ] Thus, the two allegations in the complaint, read literally, would appear to be insufficient to establish that [NAME_5] could be vicariously liable under s. 65(1) of the Act for any discriminatory practices committed by [NAME_6] in the course of his employment as [NAME_3]. [ 61 ] However, as I mentioned earlier, this motion’s record is not comprised solely of the two allegations in the complaint. Additional evidence has been put before me, which touches upon the nexus allegation. G. Additional material that leaves open the possibility for [NAME_5]’s liability under s. 65(1) of the Act [ 62 ] The additional material filed by the parties in support of their positions on [NAME_5]’s motion leads me to conclude that there are several indicators of a possible linkage between [NAME_6]’s role as [NAME_5] [NAME_5] and his activities at [NAME_3]. These indicators prevent me from concluding that the clearest of cases has been made out that it is plain and obvious the complaint against [NAME_5] would have no reasonable prospect of success. [ 63 ] I explained earlier that, pursuant to s. 65(1) of the Act, the complaint against [NAME_5] hinges on whether [NAME_6] was an officer, director, employee, or agent of [NAME_5], acting in the course of his employment with [NAME_5]. [NAME_6] sat on the [NAME_5] and, as I just indicated, his role was more of a director or officer than a typical “employee.” But he must have been remunerated for his work with [NAME_5] since [NAME_5] stated in correspondence between its counsel and [NAME_1] dated September 23, 2019, that it had suspended [NAME_6] with pay pending [NAME_5]’s investigation into the harassment allegations. [ 64 ] As an [NAME_5] officer or director, in [NAME_6]’s position, what would be the scope of his [NAME_5] “employment” in the context of s. 65(1)? Should this term be interpreted restrictively or broadly? I note that the Supreme Court of Canada has said that quasi-constitutional human rights legislation “attracts a generous interpretation” ( [NAME_18] v. [COMPANY_19] , 2014 SCC 39 at para 17). [ 65 ] [NAME_1] has pointed to several indicators in the additional material before me that leave open the reasonable possibility that while performing activities at [NAME_3], [NAME_6] was acting in the course of what could generously be interpreted as “employment” with [NAME_5]. I set out those indicators in the following paragraphs. (i) [NAME_5] [NAME_5] Chief has been [NAME_3]’s Executive Chair for years [ 66 ] [NAME_1] submits that [NAME_6] became [NAME_3]’s Executive Chair in fulfilment of his role as [NAME_5] Chief, as evidenced by the fact that he began holding both positions in the same year, 2011. [NAME_3]’s annual report for 2011–12 included a “Message from the [NAME_14]” highlighting [NAME_6]’s new [NAME_5] role by “welcome[ing] new Assembly of First [NAME_20] as Executive Chair.” In [NAME_6]’s “Greeting from the Executive Chair” message in the same annual report, he signed at the end as “[NAME_3]” and “Assembly of First [NAME_5] Chief Nova Scotia and Newfoundland.” [ 67 ] [NAME_1] points out as well that the previous [NAME_5] Chief for Nova Scotia and Newfoundland (who need only be referred to here as [NAME_21]) was also appointed Executive Chair of [NAME_3], from 2004 until 2011. In [NAME_3]’s annual report for 2010–11, [NAME_21] signed off his message as “Executive Chair, [NAME_5] [NAME_5] Chief,” and Chief Executive Officer of his First Nation. [ 68 ] However, the person who preceded [NAME_21] as Executive Chair until 2004 was not [NAME_5] [NAME_5] Chief. No evidence was presented about any other [NAME_3]. As already noted, [NAME_3]’s Terms of Reference do not require that the Executive Chair be [NAME_5] Chief. [ 69 ] Nonetheless, the circumstances from 2004 until 2018, leave open the possibility that [NAME_6] acted with an authority derived jointly from [NAME_5] and [NAME_3]. (ii) [NAME_5] National Chief’s mandate letter to [NAME_6] [ 70 ] [NAME_1] referred the Tribunal to a mandate letter signed by [NAME_5] National Chief on February 9, 2016, addressed to [NAME_6], in which the National Chief outlined his expectations with respect to the portfolios assigned to [NAME_6]. Many of those mandates reference the requirement to engage and advocate within his region and nationally. [ 71 ] [NAME_3] is not specifically mentioned in the mandate letter, [NAME_1] submits that [NAME_6]’s involvement in [NAME_3] fulfilled many of the responsibilities as [NAME_5] [NAME_5] Chief mentioned in the letter and in furtherance of [NAME_5]’s role in [NAME_3]. At this stage of the case, the information before me is insufficient to determine if [NAME_1]’s claim is clearly unfounded. (iii) [NAME_5] annual reports [ 72 ] [NAME_1] also referred to [NAME_5]’s annual reports in which each [NAME_5] Chief summarizes their respective activities for the year. [NAME_6] wrote in the summary for [NAME_5]’s 2017–18 annual report that [NAME_5]’s [NAME_5] office for Nova Scotia and Newfoundland worked in collaboration with [NAME_3] to host a [NAME_5] symposium. He notes elsewhere in the summary that one of his portfolios is as an [NAME_5] member in matters related to the Truth and Reconciliation Commission. [ 73 ] [NAME_6] also mentions in the summary that [NAME_3] had appointed him as its Executive Chair. Although he does not say that [NAME_5] was involved in the appointment, he states that [NAME_5]’s [NAME_5] Chief’s office “continues to work collaboratively to improve communications and establish a commitment to make the structure more efficient and effective.” [ 74 ] In [NAME_5]’s 2016–17 annual report, among the 16 activities that [NAME_6] reported, he included a three-line statement that as Executive Chair of [NAME_3] it was his goal to provide a structure that improves communication and to establish a commitment to make the organization more efficient and effective. (iv) [NAME_3]’s organizational chart [ 75 ] [NAME_3]’s annual report of 2011–12 includes a multi-level organizational chart for [NAME_3]. The box at the top of the chart is that of the Executive Committee and identified “[NAME_20]” as the Executive Chair. Below this box is a series of other boxes. One refers to the 13 [NAME_2] of Nova Scotia, the Nova Scotian and Canadian governments represented by their respective ministers, the representative of the Mi’kmaw Grand Council, and finally [NAME_5], with the name of the National Chief who is referred to as sitting on the Executive Committee “ex officio.” [ 76 ] [NAME_1] argues that this demonstrates [NAME_5] National Chief was acting in his capacity as an executive of [NAME_5] and that [NAME_5] is therefore connected to [NAME_3], having a “distinct role” in [NAME_3]’s Executive Committee. [ 77 ] According to [NAME_12]’ affidavit, [NAME_5] has no record of any National Chief ever attending a meeting of [NAME_3]. It has no record of being invited or agreeing to participate in [NAME_3] in this or any other capacity. [ 78 ] Be that as it may, the document emanating from [NAME_3] suggests that [NAME_5] has some form of interest in [NAME_3]’s activities and could potentially be involved in administering them through [NAME_6]’s participation. H. Conclusions regarding the additional facts [ 79 ] These facts alone may not be sufficient to ultimately prove on a balance of probabilities all the elements of s. 65(1) of the Act and find [NAME_5] vicariously liable for [NAME_6]’s acts. [NAME_5] has raised some serious questions about the sufficiency of the complaint filed against it. [ 80 ] However, these additional facts prevent me from concluding at this stage, before the hearing or even the exchange of disclosure and SOPs have taken place, that [NAME_1] plainly and obviously has no chance of establishing that, under a generous interpretation, the criteria of s. 65(1) have been met with respect to [NAME_5]. The clearest of cases has not been made out to exclude that possibility. [ 81 ] My findings would not be any different even if I were to consider some of the other criteria that [NAME_5] proposed would justify dismissing the complaint, to which I referred earlier in this ruling. As I indicated, the items in [NAME_5]’s list are really more of a policy justification for the Tribunal’s authority to summarily dismiss complaints than actual criteria. But even if I were to treat them as additional tests, I would find that they have not been met. [ 82 ] Thus, I certainly could not conclude at this stage that [NAME_5] is not the right party given my finding that it is possible [NAME_6] was acting in the course of his employment with [NAME_5]. [ 83 ] This is also not a situation where issues could be narrowed by the dismissal of the complaint. There is only one real issue to begin with—whether [NAME_6] acted in the course of his employment and, considering the uncertainty about that issue at this stage, there is really no other issue to eliminate. [ 84 ] The claim that a summary dismissal would be the most just means of resolving the issue is also without merit, particularly since the complaint’s viability remains possible. [ 85 ] Similarly, there is no question of fairness or abuse of process engaged here. [NAME_1] has alleged that [NAME_5] should be held vicariously liable for [NAME_6]’s acts, and it is not plain and obvious at this stage that she has no reasonable possibility of success. [ 86 ] Finally, I note in passing that [NAME_5] stated in its reply to [NAME_1]’s submissions that it had no knowledge of [NAME_6]’s conduct at [NAME_3] and no ability to control it. This statement appears to relate to the defence set out in s. 65(2) of the Act and is really an argument going to the merits of this potential defence. I do not understand the statement to be a claim that it is plain and obvious the criteria of the s. 65(2) defence have been met. In any event, I would not be able to make such a finding on a summary basis. More evidence is required. V. [NAME_1]’s request to reopen the hearing [ 87 ] As mentioned earlier in this ruling, [NAME_1] requested to reopen the hearing to provide “a supplemental affidavit with documents that supports her position.” Given my finding denying [NAME_5]’s motion to summarily dismiss the complaint based on the record that existed at the time of the oral hearing, [NAME_1]’s request is dismissed as moot. [ 88 ] I have not considered any of the additional material that [NAME_1] sought permission to introduce, which in any event was never even produced. The order she was seeking was for permission to file the additional material 30 days later.

VI. Order [ 89 ] For these reasons, [NAME_5]’s preliminary motion to dismiss the complaint against it is denied. [ 90 ] [NAME_1]’s request to reopen the hearing of the motion is denied. [ 91 ] The Tribunal will convene a Case Management Conference Call shortly to set down disclosure dates and address other case management matters. Signed by [NAME_4] Tribunal Member Ottawa, Ontario September 25, 2024 Canadian Human Rights Tribunal Parties of Record Tribunal Files: HR-DP-2818-22, HR-DP-2819-22 & HR-DP-2820-22 Style of Cause: [NAME_1] v. [NAME_2] [NAME_3] et al. Ruling of the Tribunal Dated: September 25, 2024 Appearances: [NAME_22] and [NAME_22] , for the Complainant [NAME_23] , for the Canadian Human Rights Commission [NAME_24] and [NAME_25] , for the Respondent, [NAME_5] [NAME_26] and [NAME_27], for the Respondent, CIRNAC