Smith v Minister of Culture and Social Rehabilitation; Ombudsman for Bermuda Intervening

• Jurisdiction: Bermuda
• Judgment Date: 14 February 2011
• Date: 14 February 2011
• Docket Number: Civil Jurisdiction 2010 No. 255
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2010 No. 255

In the matter of an Application for Judicial Review

And in the matter of the decision on the 27th day of January 2010 by the (Acting) Minister of Culture and Social Rehabilitation not to refer the human rights complaint of Susann O. Smith v the Minister of the Environment to a Board of Inquiry pursuant to the provisions of section 18(1)(a)(ii) of the Human Rights Act 1981

BETWEEN:

Susann O Smith

Applicant

and

The Minister of Culture and Social Rehabilitation

Respondent

Ombudsman for Bermuda

Intervenor

Applicant in person

Mr M Douglas and Ms W Greenidge for the Respondent

Mr N Hargun for the Ombudsman

The following cases were referred to in the judgment:

Ridge v BaldwinELR [1964] AC 40

Grant v Teachers Appeal TribunalUNK [2006] UKPC 59

Posluns v Toronto Stock Exchange [1968] SCR 330

Zutter v Council of Human Rights (BC) [1995] BCAC Lexis 4282

Robichaud v CanadaUNK [1987] 2 SCR 84

Smith v East Elloe Rural District CouncilUNK [1956] 1 All ER 855

Lovelock v Minister of Transport (1980) 40 P&CR 336

Bank of Bermuda Ltd v Minister of Community Affairs & SportBDLR [2005] Bda LR 42

Re Elcome TrustBDLR [2010] Bda LR 3

Abstract:

Judicial review - Human rights complaint - Refusal to grant license to practise as a veterinarian - Grounds of national origin - Jurisdiction of the Ombudsman - Costs

JUDGMENT of Kawaley, J

Introductory

1. The Applicant applied for leave to seek judicial review on August 2, 2010. The impugned decision was made by the Respondent on January 27, 2010 and refused to refer the Applicant's admittedly meritorious human rights complaint against the Minister for the Environment to a board of inquiry pursuant to the request of the Human Rights Commission ("HRC") on the grounds that (a) the HRC had initially dismissed her 2004 complaint but subsequently reopened it and determined it had merit, and (b) the HRC had no jurisdiction to reconsider its previous dismissal decision. She relied on three grounds:

i. The decision was irrational;

ii. The decision involved a breach of the rules of natural justice because the Minister's refusal to refer the complaint against a fellow Minister gave rise to an appearance of bias;

iii. The Minister exceeded his statutory function and acted unfairly by not endorsing the Minister's recommendation.

2. The relief sought included orders that (a) the decision be quashed; (b) the complaint be referred to a board of inquiry; and (c) a declaration that the powers conferred on the Minister by section 18 of the Human Rights Act 1981 were contrary to the public

interest. The Applicant's Notice of Motion filed on August 12, 2010 was first heard on September 2, 2010. I directed that two general issues fell to be determined: (a) the legality of the Minister's decision as a matter of public law, and (b) the constitutionality of section 18 of the Act as read with section 6(8) of the Constitution. On December 9, 2010 I granted leave to the Bermuda Ombudsman to intervene in the proceedings to deal with any submissions which might be made as to the jurisdiction of the Ombudsman. This intervention was extremely propitious and assisted the Court significantly in adjudicating the legality of the Minister's decision as a matter of public law.

3. The Ombudsman's intervention arose in this way. On or about August 24, 2004, the Applicant filed a complaint with the HRC in respect of the Minister for the Environment's refusal from in and about March 1997 to license her to practise veterinary medicine, allegedly on the grounds of national origin. She was told that she had to be certified according to a continuing policy in either Britain (or a European country with qualifications recognised by Britain), Canada or the United States. In particular, as she had a Doctor of Veterinary Medicine Degree from Tuskegee University, she was told she had to pass a US National Board Exam ("NBE"). This qualification was neither legislatively required1 nor imposed on a Jamaican vet who had the same doctoral degree from Tuskegee, who had also not taken the NBE yet was still licensed to practise in Bermuda. The Applicant agreed to mediate the complaint without resolution between July 2005 and February, 2006. On or about March 1, 2006, the Applicant complained to the Ombudsman about the way in which the HRC had handled her complaint. Before the Ombudsman had first communicated with the HRC, it dismissed the Applicant's complaint on April 26, 2006.

4. On December 15, 2007, the Ombudsman forwarded her December 14, 2007 Report to the Applicant and to Mr. Ayo Johnson, Executive Officer of the HRC. The HRC Chairman, Ms. Venous Memari and the then Acting Permanent Secretary of the Ministry, Dr. Myra Virgil, were copied with this correspondence. The Ombudsman's Report2 concluded that, inter alia, because the Applicant was not given a right to be heard on the question of whether the complaint should be dismissed, the dismissal of the Applicant's HRC complaint did not comply with section 15(8) of the Act, was invalid (paragraph 71) and accordingly "remains extant" (paragraph 61). Ms. Brock crucially (and lucidly) recommended as follows:

"74. As the complaint was not properly dismissed, a decision remains to be made on the disposition of the complaint: either to continue the investigation under revised terms of reference; or refer the matter to a board of inquiry; or dismiss lawfully after giving the Complainant an opportunity to be heard."

5. The Ombudsman's said recommendation was substantially accepted by the HRC on or about March 11, 2008 although the continued subsistence of the original complaint was not confirmed until in or about July, 2008. The Applicant filed an Amended Complaint dated December 29, 2008, which the respondent was invited to comment on by letter from the HRC dated February 5, 2009. The Attorney-General's Chambers forwarded a 'Preliminary Response' on behalf of the Minister of the Environment on June 8, 2009. By letter dated December 31, 2009, the HRC requested the Minister to refer the complaint to a board of inquiry under section 18 of the Act. The Chairman's letter advised the Minister that she and her Permanent Secretary were both in the respondent Ministry at the time of the initial HRC complaint. On January 11, 2010, the Director of Human Affairs forwarded the file in relation to the Applicant's complaint to the Acting Minister under cover of a Memo which indicated, inter alia:

iv. That the Attorney-General's Chambers were acting on behalf of the respondent to the HRC complaint;

v. That the Attorney-General's Chambers had made a number of submissions which "may negate a referral to a Board of Inquiry", in particular the points that:

(v.a) the Ombudsman had no jurisdiction to review decisions of the Commission which was a quasi-judicial body;

(v.b) the claim had no merit;

(v.c) The claim was out of time; and

(v.d) The HRC had no authority to review its own decisions.

vi. That the Department requested the Minister to review the file very carefully, particularly the advice of the Attorney-General's Chambers, before making his decision, and take note of the request made by Chambers to be permitted to make representations to the Minister before he exercised his discretion.

6. There is nothing in the evidence to suggest that the Acting Minister did receive further representations from the Attorney-General's Chambers on behalf of the Minister of the Environment, or that the HRC was afforded an opportunity (on behalf of itself and the Applicant) to respond to the legal arguments advanced on the respondents' behalf. Nor is it apparent whether the Acting Minister sought or obtained any independent legal advice. Be that as it may, the Acting Minister's January 27, 2010 decision reflects a reasoned consideration of most of the key points his Director invited him to consider. The Minister rejected two of the HRC complaint respondent's points (lack of merit and out of time), accepted one (the HRC had no jurisdiction to reconsider its own decisions), and did not explicitly deal with one point (the submission that the Ombudsman had no jurisdiction to investigate the HRC). However, the latter point was implicitly accepted. The crucial basis for the decision was as follows:

"However, as Minister, I do not refer this case because the HRC, having made the decision, cannot reverse itself or its own decision, while I find Dr. Smith's case has merit, and one which a court of law could entertain [,] a decision by me to refer the matter to a Board of Inquiry has the same effect of the 'HRC'…reversing its earlier decision."

7. On the face of it, the impugned decision did not purport to reflect the exercise of an administrative discretion; rather it was by its terms a quasi-judicial legal determination that the HRC in purporting to revive a previously dismissed complaint at the instigation of the Ombudsman was acting ultra vires its statutory powers. Unsurprisingly, the Ombudsman was concerned to seek clarification from this Court as to the scope of her own jurisdiction in relation to HRC matters. Bearing in mind that the Human Rights Act did not explicitly state that decisions by the HRC dismissing complaints were not subject to review, the application of the logic of the impugned decision to other statutory contexts could potentially curtail the Bermuda Ombudsman's remedial jurisdiction altogether.

8. The main focus of legal argument at the hearing of the Applicant's judicial review application where she was not herself legally represented thus became whether or not the HRC does have the legal power to re-open complaints it has dismissed. The original challenges to the legality of the Acting Minister's decision, both public law and constitutional, were not addressed by the Ombudsman's counsel.

9. Against the background of the Attorney-General's Chambers having previously acted for the respondent to the HRC...