Thompson v Bermuda Dental Board
| Jurisdiction | Bermuda |
| Judgment Date | 21 February 2006 |
| Docket Number | Appellate Jurisdiction 2005 No. 50 |
| Date | 21 February 2006 |
| Court | Supreme Court (Bermuda) |
In The Supreme Court of Bermuda
Simmons, J
Appellate Jurisdiction 2005 No. 50
Mr M Douglas for the Appellant
Mr D Kessaram for the Respondent
Ealing LBC v Race Relations BoardELR [1972] AC 342
Reiter v Ness and KobanBDLRBDLR [1997] Bda LR 43 and [1998] Bda LR 12
Ontario Human Rights Commission v Simpson-SearsUNK [1985] 2 SCR 536
Lawe v Minister of Labour, Home Affairs & Public SafetyBDLR [2005] Bda LR 11
Bitoni v College of Physicians and Surgeons of British Columbia
Human Rights Act 1981
Bermuda Constitution Order, s. 12
Discrimination — Place of origin — Neither Bermudian or spouse of Bermudian — Direct and indirect discrimination
1. This matter arises on an Originating Notice of Motion by way of appeal from a decision of a Board of Inquiry established by the Minister of Community and Cultural Affairs pursuant to the Human Rights Act 1981. The appeal is against the whole of the decision of the Board of Inquiry whereby it was decided that the Appellants contravened section 2(2)(a)(i) of the Human Rights Act 1981 in that they discriminated against the Respondent because of his place of origin.
2. The full and particularised grounds of appeal are set out in the Originating Notice of Motion filed by the Appellant on the 18th February 2005 against the decision of the Board of Inquiry dated 31st January 2005.
3. At the commencement of the appeal Mr. Kessaram for the Respondent conceded that the tribunal which had been appointed to conduct the inquiry over reached its agreed mandate by ruling on the substantive complaint rather than on the three issues related to a preliminary point that had been placed before them for consideration.
4. Counsel for the Appellant and for the Respondent agreed that the Board of Inquiry had exceeded its remit in rendering its 31st January 2005 decision in that it only had jurisdiction to and had only been asked to deal with three matters: (1) to identify the issues in the complaint; (2) to exclude irrelevant evidence and (3) to determine as a preliminary point whether the admitted facts constituted discrimination under the Human Right's Act 1981.
5. Counsel thought it best and I concurred to resolve the preliminary point of law first as such a ruling may render a full hearing into the grounds of this appeal and any subsequent re-hearing of the issues unnecessary. For this reason the grounds of the appeal are not set out fully, although a brief review of the undisputed facts follows.
6. By way of background the Respondent is a dentist who trained and qualified in Dental Surgery at the University of Newcastle in Scotland thereby qualifying for practice in the United Kingdom. He performed his vocational training and commenced practice in Scotland in 1999. On a date before December of 2000 the Respondent in answer to an advertisement in the British Dental Journal applied for a position to practice dentistry in Bermuda in the offices of a practicing Bermudian dentist.
7. The Respondent was offered the position to practice in Bermuda subject to The Department of Immigration's approval. Immigration approval was granted and the Respondent was granted a work permit on the 28th February 2001.
8. The Appellant is a body corporate established under the Dental Practitioners Act 1950 with the power to assess the eligibility of applicants and appoint examiners to determine the competence of an applicant for registration as a dental practitioner. The Respondent's credentials were submitted to the Appellant by way of application in order for the Respondent to take the necessary examination that if successfully passed would entitle him to become registered to practice general dentistry in Bermuda.
9. The Appellant initial refused to allow the Respondent to sit the examination on the basis that applications to them are only accepted from Bermudian citizens and spouses of Bermudians. Eventually the Appellant arranged for the Respondent to sit the examination which comprised both a written as well as a practical format.
10. The Respondent was administered both components of the exam. He was subsequently informed that he had failed to pass the practical component of the examination. The Respondent requested a re-sit of the failed exam pursuant to provisions for such made under the Dental Practitioner's Act however the Applicant subsequently refused to permit the Respondent to re-sit the practical portion of the examination.
11. As matters unfolded the Respondent eventually sought orders of Certiorari in a judicial review application against the Appellant's decision to fail him in the dental practicum on various grounds including bias. By a decision of the Supreme Court dated the 28th November 2001 an order of certiorari was granted quashing the decision of the Appellant.
12. By this time events had overtaken the duration of the Respondent's work permit and a new work permit was applied for but denied by the Immigration Department. The Respondent lodged an official complaint to the Human Rights Commission alleging contravention of section 2(2) (a) (i) of the Human Rights Act by the Appellant on the ground that the refusal to allow him to sit or re-sit the examination because he was not a Bermudian or the spouse of a Bermudian was discrimination because of his place of origin.
13. While counsel for the parties have agreed on the preliminary point of law to be determined it is nevertheless the Appellant's case that the Respondent has not complained formally of discrimination on the basis of place of origin but rather that he has been treated differently on the basis of national origin and on the basis that he is neither a Bermudian nor the spouse of a Bermudian.
14. The Appellant's position is that the starting point in answering the question in issue is to look at The Race Relations Act 1969 the predecessor to the Human Rights Act in which the prohibited grounds of colour, race, ethnic and national origins first occurred. Mr. Douglas argues that these same prohibited grounds appear in the English Race Relations Act 1968. He cites dicta emanating from the House of Lords decision in Ealing London Borough Council and the Race Relations BoardELR[1972] AC 342 in asserting that “place of origin” does not mean the same thing as “national origins”.
15. Mr. Douglas further contends that the Board fell into error when it took the position that the ‘for the avoidance of doubt’ provisions in section 5 (4) of the Act show that the general intendment of the legislation was to permit discrimination in favour of Bermudians in those narrowly circumscribed clauses only. He argues that by the Board doing so it elevated section 5(4) of the Act to the status of a proviso that qualifies the ordinary meaning of the phrase “place of origin”.
16. Counsel for the Appellant argues further that because the Act contains a penal provision it would be wrong to interpret the phrase “place of origin” in the convoluted manner suggested by the Board. He makes the point that had the intention of the legislature been to prevent discrimination on the basis of a person not possessing Bermudian Status the drafters of the Act would have clearly stated that as a prohibited ground under section 2 (2) of the Act.
17. Counsel for the Respondent Mr. Kessaram takes the position that in interpreting or defining the phrase ‘place of origin’ one should not confine it to the genus of protected categories that appear along side of the phrase in section 2(2)(a)(1) of the Human Rights Act. He went further to suggest that the court should not rely on a comparison between prohibited grounds set out in the now repealed Race Relations Act and those in the Human Rights Act.
18. Mr. Kessaram relies in the furtherance of his arguments on a decision Meerabux J. of this court in the case of Reiter v Ness and KobanCiv. Jur. 1996 No. 241 and concluded that Meerabux J considered the words “place of origin” and “Bermudian”(as defined by the Constitution) to be related such that discrimination on the basis of the possession or non-possession of Bermudian Status fell within the prohibition on “place of origin” discrimination.
19. Counsel for the Respondent also contends that “place of origin” discrimination includes...
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