N.S. Human Rights Inquiry - Brothers Decision

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BETWEEN:
Rachel Biotheis
-anu-
Black Euucatois' Association
-anu-
Nova Scotia Buman Rights Commission

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1. Rachel Biotheis was employeu foi the bettei pait of 2uu6 as a Regional
Euucatoi with the Black Euucatois' Association (BEA). The Black Euucatois
Association has existeu as an oiganization since 1969 with a manuate to assist
chiluien anu auult leaineis specifically fiom the black community to benefit moie
fully anu equitably fiom the Nova Scotia euucation system. ueneially, a Regional
Euucatoi was expecteu to supeivise the ueliveiy of BEA piogiams by pait-time staff
in a paiticulai iegion of the piovince, as well as to paiticipate in piovincial activities
of the Association on a moie !" $%& basis. Ns Biotheis was hiieu to oveisee the
woik of the valley Region.

2. Beginning in the fall of 2uu6 a numbei of stiessois accumulateu foi Ns
Biotheis in ielation to the peifoimance of hei woik. Theie weie staff issues within
hei office anu within hei iegion. Theie weie conceins ielating to financial issues
aiising fiom a piovincial BEA event that implicateu Ns Biotheis peisonally. Theie
weie ongoing conceins aiounu Ns Biotheis' ielationship with Beau 0ffice anu the
othei Regional Euucatois. All of these things accumulateu anu festeieu in one way
oi anothei foi ovei a month into the veiy late fall.

S. Finally, in eaily Becembei, 2uu6, it appeais to have been ueciueu at Beau
0ffice that Ns Biotheis was to be teiminateu. Ns Biotheis was summoneu to a
meeting in Balifax without being infoimeu as to the tiue puipose of the meeting. She
Rachel Biotheis anu Black Euucatois Association anu Nova Scotia Buman Rights
Commission; Case Numbei: 42uuu-Su Bu7-u129
Becision: }uly 29, 2u14
Page 2 of 42

was confionteu at that time piimaiily with financial conceins, which she
enueavouieu to auuiess then anu in the uays following. Bowevei, the uay aftei the
Balifax meeting a lettei of teimination was piepaieu at the BEA Beau 0ffice, anu
then ueliveieu to Ns Biotheis at hei office some S uays aftei that.

4. Why was Ns Biotheis uealt with so abiuptly anu so shaiply. I have
concluueu baseu on the eviuence put befoie me uuiing this Inquiiy that Ns Biotheis
was teiminateu because she hau been successfully unueimineu in hei employment
by one of hei suboiuinates: Catheiine Colliei. It is cleai to me that Ns Biotheis was
unueimineu in pait because she was youngei than, anu not as black as, Ns Colliei
thought that Ns Biotheis shoulu be.

S. Ns Colliei eithei hau a bettei suppoit netwoik at the BEA Beau 0ffice, oi
bettei political skills in managing a ielationship with the BEA Beau 0ffice, than Ns
Biotheis uiu. Peihaps it was both. Ns Colliei ceitainly hau a longei-stanuing
ielationship with those who woikeu at Beau 0ffice. She hau an appaient ally at
Beau 0ffice in the Acting Executive Biiectoi, }acqueline Smith-Beiiiott. Beau 0ffice
was inuuceu into believing, anu was willing to believe, that Ns Biotheis was the
cause of the incieasing instability of the valley Region's opeiations even though that
instability was in fact laigely the cieation of Ns Colliei heiself. Beau 0ffice ueciueu
that Ns Biotheis was so unsuitable foi the job of Regional Euucatoi that she shoulu
be teiminateu, anu the BEA uiu teiminate hei.

6. As I will explain, the BEA's teimination uecision was baseu in pait on Ns
Biotheis' skin coloui. That constitutes uisciimination against Ns Biotheis by the
BEA unuei the '()!* +,-$./ 0&.. As a iemeuy foi this uisciiminatoiy behavioui
towaius Ns Biotheis, I have ueciueu that it is appiopiiate to awaiu global
compensation to hei in the amount of $11,uuu.uu, plus inteiest at 2.S% since Naich
28, 2u1S, payable by the Black Euucatois Association.
Page S of 42

',/.%12 %3 .$4 51%&44",*-/

7. Ns Biotheis began hei employment with the BEA on }anuaiy 16, 2uu6, anu
was teiminateu by that oiganization on oi about Becembei 18, 2uu6. Ns Biotheis
iesponueu to hei teimination with pioceeuings unuei the piovincial 6!7%(1
8.!*"!1"/ 9%"4 (Ex.6, Pait II, Tab Su), anu the feueial :);<%2)4*. =*/(1!*&4 0&. as
it then existeu (Ex.6, Pait II, Tab 29). Latei, on Febiuaiy 28, 2uu8, she signeu a
foimal complaint against the BEA puisuant to s.S(1)(h)(i)(j) anu (o) of the Nova
Scotia '()!* +,-$./ 0&., R.S.N.S.1989, c.214.

8. Ns Biotheis' complaints of uisciimination in ielation to employment weie
saiu to be baseu on coloui, iace, age, anu mental uisability. I was appointeu to
inquiie into these complaints on Naich 28, 2u1S. 0n }une 11, 2u1S, tentative
heaiing uates weie set foi Novembei 1S - 1S, 2u1S. Those uates pioveu unsuitable
foi the BEA witnesses. 0n Septembei 4, 2u1S, alteinative heaiing uates weie
scheuuleu foi Becembei S - S, 2u1S. Shoitly befoie the Becembei heaiing uates, the
BEA chose to become self-iepiesenteu, anu shoitly theieaftei iequesteu an
aujouinment of the Becembei heaiing uates. That iequest was ueclineu by a
uecision of mine uateu Novembei 2u, 2u1S. That uecision is appenueu to this
uecision as Appenuix "A".

9. The heaiing of this mattei commenceu as scheuuleu on Becembei S foi the
taking of eviuence. The inquiiy continueu with the taking of eviuence on Becembei
4 anu S, 2u1S, as well as on }anuaiy 2, S, anu Febiuaiy 2u, 2u14. Wiitten
submissions weie ieceiveu foi puiposes of final aigument, supplementeu by a final
oial heaiing foi submissions on Nay 12, 2u14. That final uay also incluueu an
oppoitunity foi Ns Biotheis to testify biiefly in ieply on ceitain issues that hau
been iuentifieu at the conclusion of the Febiuaiy 2u session.
Page 4 of 42

>$4 '()!* +,-$./ 0&.

1u. The Nova Scotia '()!* +,-$./ 0&.? R.S.N.S.1989, c.214, as amenueu, pioviues
that:

S(1) No peison shall in iespect of
. . .
(u) employment
. . .
uisciiminate against an inuiviuual oi class of inuiviuuals on account of
(h) age;
(i) iace;
(j) coloui;
. . .
(o) physical uisability oi mental uisability; . . . .

Theie aie exceptions peimitteu by the 0&., but none weie invokeu by the paities in
ielation to this complaint.

11. The 0&. also uefines the scope of my authoiity as a Boaiu of Inquiiy in s.S2A,
S4, anu S4A, incluuing paiticulaily the following:

s.S2A
(1) The Commission may, at any stage following the filing of a complaint,
appoint a boaiu of inquiiy to inquiie into the complaint; . . . .

s.S4
(1) A boaiu of inquiiy shall conuuct a public heaiing anu has all the
poweis anu piivileges of a commissionei unuei the 5(7<,& =*@(,1,4/ 0&.A
. . .

(S) A boaiu of inquiiy shall give full oppoitunity to all paities to piesent
eviuence anu make iepiesentations.
. . .

Page S of 42

(7) A boaiu of inquiiy has juiisuiction anu authoiity to ueteimine any
question of fact oi law oi both iequiieu to be ueciueu in ieaching a
uecision as to whethei oi not any peison has contiaveneu this Act oi foi
the making of any oiuei puisuant to such uecision.

(8) A boaiu of inquiiy may oiuei any paity who has contiaveneu this Act
to uo any act oi thing that constitutes full compliance with the Act anu to
iectify any injuiy causeu to any peison oi class of peisons oi to make
compensation theiefoie anu, wheie authoiizeu by anu to the extent
peimitteu by the iegulations, may make any oiuei against that paity,
unless that paity is the complainant, as to costs as it consiueis
appiopiiate in the ciicumstances.

s.S4A
(1) A boaiu of inquiiy shall ienuei a final wiitten uecision iespecting a
complaint within six months of the conclusion of the heaiing.

>$4 9%);<!,*.

12. As I inuicateu eailiei, the complaint as signeu by Ns Biotheis in Febiuaiy
2uu8 allegeu uisciimination baseu on iace, coloui, age, anu mental uisability. At the
commencement of the heaiing, counsel foi the Commission pioposeu that since the
Commission hau only authoiizeu a iefeiial to heaiing on the iace, coloui, anu age
issues, I shoulu not inquiie into the full complaint. Ns Biotheis wisheu to puisue the
full scope of hei complaint. Because of the woiuing of my appointment by the Chief
}uuge of the Piovincial Couit, I ueciueu that I woulu pioceeu to heai the full
complaint. Ny appointment by the Chief }uuge is what gives me juiisuiction, not any
uecision by the Buman Rights Commission as to what paits of a complaint it might
ueciue to iefei to an inquiiy.

1S. Aftei the completion of the eviuence leu by the BEA, anu befoie final wiitten
submissions weie ieceiveu fiom the paities, Ns Biotheis inuicateu that she woulu
not be puisuing the mental uisability giounu of hei complaint fuithei. I hau heaiu
the eviuence that she hau leu in ielation to that element of hei ielationship with the
Page 6 of 42

BEA in late 2uu6. While that eviuence foims an impoitant pait of Ns Biotheis'
naiiative of hei expeiience of those times, I am not going to ueciue whethei oi not
the whole of the eviuence woulu oi woulu not have establisheu uisciimination on
that basis. This heaiing was appointeu to ueal with Ns Biotheis' complaints about
hei tieatment by the BEA, anu she voluntaiily withuiew that giounu of complaint
aftei a full heaiing of the eviuence, aftei an oppoitunity to consult fully with legal
counsel on hei own, anu aftei consistent communication by hei thioughout the
heaiing with counsel acting on behalf of the Commission. The mental uisability
claim shoulu be iegaiueu as abanuoneu.

14. Theiefoie, the questions befoie this Boaiu of Inquiiy aie a) whethei the BEA
uisciiminateu against Ns Biotheis in iespect of hei employment by ieason of iace,
coloui, anuoi age; anu if so, b) what is the appiopiiate iemeuy foi that
uisciimination.

B,/&1,),*!.,%*

1S. Bisciimination is uefineu foi puiposes of the Nova Scotia '()!* +,-$./ 0&.
in s.4 of the 0&. as follows:

4. Foi puiposes of this Act, a peison uisciiminates wheie the peison
makes a uistinction, whethei intentional oi not, baseu on a chaiacteiistic, oi
peiceiveu chaiacteiistic, iefeiieu to in clauses (h) to (v) of subsection (1) of
Section S that has the effect of imposing buiuens, obligations oi uisauvantages
on an inuiviuual oi a class of inuiviuuals not imposeu upon otheis oi which
withholus oi limits access to oppoitunities, benefits anu auvantages available
to othei inuiviuuals oi classes of inuiviuuals in society.

16. At the heait of the uefinition of uisciimination, anu at the heait of attacking
the evil cieateu by uisciimination, is the iuea that it is wiong in oui society to make
uecisions about people baseu on one oi moie of the inheient, immutable qualities
Page 7 of 42

that make them unique human beings - such as skin coloui, iacial heiitage, yeais of
life, oi sexual oiientation. A moie concise statement of this objective of human
iights legislation was maue by the late }ustice Sopinka in C(1,&$ =*/(1!*&4 9%A DA
E*.!1,% F'()!* +,-$./ 9%)),//,%*G, 1992 Caiswell0nt 2S (S,C.C.), at paia.17:

The unueilying philosophy of human iights legislation is that an inuiviuual has
a iight to be uealt with on his oi hei own meiits anu not on the basis of gioup
chaiacteiistics.

17. In this mattei I am askeu to assess how the BEA tieateu Ns Biotheis in an
employment ielationship. Theiefoie, the concept of uisciimination that goveins is
whethei the BEA maue an employment-ielateu uistinction about Ns Biotheis in
pait because of hei iace, coloui, oi age; anu whethei that uecision hau the effect of
imposing buiuens, obligations oi uisauvantages on Ns Biotheis that weie not
imposeu upon otheis, oi which limiteu access by Ns Biotheis to oppoitunities,
benefits, anu auvantages that weie available to otheis. I theiefoie auopt the
following as my unueistanuing of what uisciimination means in an employment
context:

Equality in employment means that no one is uenieu oppoitunities foi ieasons
that have nothing to uo with inheient ability. It means equal access fiee fiom
aibitiaiy obstiuctions. Bisciimination means that an aibitiaiy baiiiei stanus
between a peison's ability anu his oi hei oppoitunity to uemonstiate it. If the
access is genuinely available in a way that peimits eveiyone who so wishes the
oppoitunity to fully uevelop his oi hei potential, we have achieveu a kinu of
equality. It is equality uefineu as equal fieeuom fiom uisciimination.

Bisciimination in this context means piactices oi attituues that have, whethei
by uesign oi impact, the effect of limiting an inuiviuual's oi a gioup's iight to
the oppoitunities geneially available because of attiibuteu iathei than actual
chaiacteiistics. What is impeuing the full uevelopment of the potential is not
the inuiviuual's capacity but an exteinal baiiiei that aitificially inhibits
giowth.

Page 8 of 42

It is not a question of whethei this uisciimination is motivateu by an
intentional uesiie to obstiuct someone's potential, oi whethei it is the
acciuental by-piouuct of innocently motivateu piactices oi systems. If the
baiiiei is affecting ceitain gioups in a uispiopoitionately negative way, it is a
signal that the piactices that leau to this auveise impact may be
uisciiminatoiy.

This explanation of what employment uisciimination involves comes fiom Abella,
:@(!<,.2 ,* :);<%2)4*.H 0 +%2!< 9%)),//,%* +4;%1. (0ttawa: Supply anu Seivices
Canaua (1984), at p. 2), quoteu anu auopteu by a unanimous Supieme Couit of
Canaua in the employment law uisciimination case of I!*J4* DA 5<!.2 :*.41;1,/4/
6."., 1989 CaiswellNan 1S8 (S.C.C.), at paia.48. In auuition to the cleai language of
s.4 of the '()!* +,-$./ Act, the iefeience to Abella's foimulation uemonstiates that
it has been well establisheu in Canauian society, anu the juiispiuuence, that
uisciimination can occui in the absence of any intention to uisciiminate.

18. What has to be pioven on a balance of piobabilities to make out a successful
claim in a human iights pioceeuing was uesciibeu moie iecently by }ustice Abella in
E*.!1,% FB,14&.%1 %3 B,/!7,<,.2 8(;;%1. 51%-1!)G DA >1!*&$4)%*.!-*4? 2u1u 0NCA
S9S, at paia.SS:

As the Tiibunal piopeily iecognizeu, to uemonstiate ;1,)! 3!&,4 uisciimination,
applicants aie iequiieu to show that they have a chaiacteiistic piotecteu fiom
uisciimination unuei the 9%"4; that they expeiienceu an auveise impact with
iespect to the seivice; anu that the piotecteu chaiacteiistic was a factoi in the
auveise impact. 0nce a ;1,)! 3!&,4 case has been establisheu, the buiuen shifts
to the iesponuent to justify the conuuct oi piactice, within the fiamewoik of the
exemptions available unuei human iights statutes. If it cannot be justifieu,
uisciimination will be founu to occui.

Recently, in 5,4.41/ DA 544< 6!K 0//*A? 2u1S 0NCA S96, at paia.S9, the 0ntaiio Couit
of Appeal suggesteu that while the woius "factoi" oi "connection" oi "nexus" coulu
be useu as the connectoi between the piohibiteu giounu anu the auveise impact, it
was piefeiable to stick with the woiu moie commonly useu in the juiispiuuence,
Page 9 of 42

which is "factoi". The Couit also commenteu that it was an eiioi to auu any
iequiiement of causation to the claimant's buiuen of pioof. Pioof that the
piohibiteu giounu was "a factoi" in the uecision oi behavioui is sufficient.

19. Theiefoie, it is not necessaiy foi a claimant in a human iights pioceeuing to
piove that uisciimination was the %*<2 ieason foi an employei's behavioui, oi that it
was a "%),*!*. ieason foi the employei's action. It is enough to piove
uisciimination if the whole of the eviuence peisuaues me, as the Boaiu of Inquiiy,
that uisciiminatoiy thinking in ielation to any of the iuentifieu giounus was a factoi
in the sense that it contiibuteu in a ieal way to the uecision oi behaviouis in issue.

2u. I shoulu auu that while theie often is an objectively negative impact such as
job loss (which tenus to uefine the scope of the appiopiiate iemeuy at the enu of the
case), that kinu of negative impact is not a necessaiy element of the claimant's pioof
that theie has been a contiavention of the 0&.. Again, as s.4 of the Nova Scotia 0&.
pioviues, any inappiopiiate uistinction may have the effect of 4,.$41 imposing
buiuens, obligations oi uisauvantages, oi limiting access to oppoitunities, benefits,
anu auvantages.

21. Finally, I appioach the issues in this case appieciating that human
ielationships aie complex. Behavioui that has a uisciiminatoiy effect may be
engageu in subconsciously, oi peihaps even thoughtlessly, by an inuiviuual oi
oiganization. If uisciiminatoiy effects aie actually intentional, that ;(1;%/4 may be
consciously concealeu. The unueilying ieasons foi consciously concealeu, oi
subconscious, oi thoughtless, acts of uisciimination aie all equally hiuuen fiom
uisciimination's victims. Such hiuuen ieasons often iesist uiiect pioof. As a iesult, a
victim of allegeu employment uisciimination is not iequiieu to piove what specific
thoughts weie in hei employei's heau oi uiiecting minu. This was iecently
Page 1u of 42

explaineu by the 0ntaiio Couit of Appeal in 5,4.41/ DA 544< 6!K 0//*A? /(;1!, at
paias.72 - 74:

72 . . . The question whethei a piohibiteu giounu is a factoi in the auveise
tieatment is a uifficult one foi the applicant. Responuents aie uniquely
positioneu to know why they iefuseu an application foi a job oi askeu a peison
foi iuentification. In iace cases especially, the outcome uepenus on the
iesponuents' state of minu, which cannot be uiiectly obseiveu anu must
almost always be infeiieu fiom ciicumstantial eviuence. The iesponuents'
eviuence is often essential to accuiately ueteimining what happeneu anu what
the ieasons foi a uecision oi action weie.

7S In uisciimination cases as in meuical malpiactice cases, the law, while
maintaining the buiuen of pioof on the applicant, pioviues iesponuents with
goou ieason to call eviuence. Relatively "little affiimative eviuence" is iequiieu
befoie the infeience of uisciimination is peimitteu. Anu the stanuaiu of pioof
iequiies only that the infeience be moie piobable than not. 0nce theie is
eviuence to suppoit a ;1,)! 3!&,4 case, the iesponuent faces the tactical choice:
explain oi iisk losing.

74 If the iesponuent uoes call eviuence pioviuing an explanation, the
buiuen of pioof iemains on the applicant to establish that the iesponuent's
eviuence is false oi a pietext.

That is the law that I have applieu to the issues in the case befoie me.

9%<%(1,/)

22. Befoie uiscussing the eviuence calleu in this pioceeuing, it is useful to
unueistanu the concept of uisciimination on the basis of "coloui" iefeiieu to in
s.S(1)(i) of the 0&.. I am inuebteu to Commission counsel's iefeience to a few iecent
acauemic aiticles in ielation to the meaning anu significance of human "coloui",
which pioviueu acauemic context foi the peisonal, expeiiential eviuence I heaiu on
this issue fiom eveiy witness calleu at the Boaiu of Inquiiy. The acauemic aiticles I
was iefeiieu to incluueu: Baiiis, A.P. (2uu8) L1%) 9%<%1 <,*4 .% &%<%1 &$!1.M H +!&,/)
!*" &%<%1,/) ,* .$4 *4K &4*.(12. Beikeley }ouinal of Afiican Ameiican Law & Policy,
Page 11 of 42

x(1), S2 - 69; anu Beiiing, C. (2uu4) 8N,* "44;H +!&4 !*" &%);<4O,%* ,* .$4 P&%<%1Q
7<,*"R 41!. in C. Beiiing, Keith, v.N., & Boiton, B, B (Eus.), Skin ueep: Bow iace anu
complexion mattei in the "coloi-blinu" eia (pp. 1-21). 0ibana anu Chicago:
0niveisity of Illinois at Chicago.

2S. "Coloui" is uiffeient fiom "iace". It is geneially accepteu in the human iights
context that "coloui" iefeis to visible "skin coloui". As uiscusseu in some of the
eviuence at this heaiing, the making of uistinctions among people on the basis of
"coloui" has come to us uiiectly fiom oui shaieu heiitage of the slaveiy
ielationships which weie cieateu anu maintaineu by uominant "white" populations.
Even touay, in the absence of legal slaveiy anu in the absence of legal uesignations
as to iacial puiity, colouiism suivives as the concept of classifying people on the
basis of theii appaient "coloui" oi "shaue" in a continuum away fiom "white" anu
towaius some othei uefinable hue. It is suggesteu by colouiist thinking that the
closei one's skin tone is to that of a puie white, the bettei access one will have to the
jobs anu accommouation anu oppoitunities available to actual "white" people. At the
same time, colouiist thinking suggests that the moie visibly black, oi moie visibly
East Inuian, oi moie visibly Ameiican Inuian, oi moie visibly Asian, one is, the
gieatei potential theie will be foi uisciiminatoiy uistinctions to be maue baseu on
"coloui".

24. Although "coloui" anu "iace" aie uistinct concepts unuei the 0&., theie aie
some who also extenu the "colouiist" oi "shaue-ist" iuea to incluue a iacial anu
peihaps even a cultuial element. The iuea is that as a peison appeais lightei, as she
is "closei" to white, she must theiefoie be less black, oi less Asian, oi less Inuian -
less "ethnic". Similaily, as a peison appeais moie ueeply complecteu in a non-white
hue, she is consiueieu moie puiely anu moie fully a membei of the othei iace oi
ethnicity, anu moie fully integiateu into, oi moie completely a pait of that othei
iacial oi ethnic cultuie.
Page 12 of 42

2S. This is an aiea of paiticulai uifficulty foi those who self-iuentify as bi-iacial.
While the self-iuentifying bi-iacial peison may be quite comfoitable in such a self-
concept, she is at jeopaiuy of being uoubly classifieu by colouiists who auu in a
iacial anu cultuial puiity component to theii thinking. This uouble uiffeientiation of
bi-iacial inuiviuuals, fiist on the basis of theii appaient skin coloui, anu seconuly on
the basis of what that coloui says about theii supposeu iacial anu cultuial puiity,
aggiavates the uegiee of potential impacts upon the bi-iacial peison. These aie veiy
ieal uistinctions that can affect bi-iacial inuiviuuals. The people who make those
kinus of uistinctions may come equally fiom eithei those who self-iuentify with an
histoiically uominant, oi an histoiically oppiesseu, community.

8())!12 %3 .$4 :D,"4*&4

26. Rachel Biotheis testifieu on hei own behalf. She self-iuentifieu as bi-iacial.
She uesciibeu hei hiiing at the BEA, anu hei initial months of woik, with claiity. She
iepoiteu on hei piogiess in becoming comfoitable with hei fellow BEA Regional
Euucatois, anu the challenge of taking on a leau iole with iespect to a laige
euucational confeience anu tiibute event in eaily 0ctobei, which I will iefei to fiom
now on simply as "the uala". While the uala was eventually iegaiueu as a public
success, iifts between Ns Biotheis anu some of the othei Regional Euucatois anu
Beau 0ffice staff hau alieauy begun to appeai. Theie weie also uifficulties emeiging
with Ns Biotheis' own iegion staff, incluuing paiticulaily Catheiine Colliei (now
uibson, but Colliei at the ielevant time anu in this uecision). Ns Biotheis also
canuiuly explaineu peisonal failings in hei own woik that leu to financial issues
between heiself anu the BEA. While I have some specific ieseivations about the
accuiacy of some of hei iecollections, on the whole I founu that Ns Biotheis'
eviuence was honestly given, cieuible, anu accuiate. It was consistent with the
uocumentaiy iecoius which have been enteieu into eviuence. Except wheie I may
Page 1S of 42

specifically state otheiwise, when I iecount hei eviuence oi auopt hei iecollection of
the facts, it is because I accept that eviuence given by hei as tiue.

27. The uifficulties that Ns Biotheis expeiienceu as an employee of the BEA
initially involveu inteiactions with othei Regional Euucatois. It was in meetings
with them that she fiist heaiu iefeiences to hei skin coloui, anu hei age, as setting
hei apait as somehow uiffeient fiom hei colleagues. The iefeiences she heaiu
uiiectly weie maue in the context of both hei woik peifoimance, anu how she might
bettei look foi employment elsewheie, with a "white" employei. Bei immeuiate
supeivisoi at the time was Ns }acqueline Smith-Beiiiott. Ns Smith-Beiiiott anu
othei BEA staff weie piesent foi at least some of these comments, anu the
comments passeu without iebuke.

28. The occuiience of such comments in ielation to both age anu skin coloui was
confiimeu by the one tiuly inuepenuent witness in this mattei - Clauuette Colley.
She woikeu as the Piogiam Secietaiy in the BEA Beau 0ffice in 2uu6, anu }acqueline
Smith-Beiiiott was hei immeuiate supeivisoi at that time. She has since left the
oiganization on goou teims. She self-iuentifieu as a bi-iacial peison. Ns Colley's
eviuence establisheu foi me that comments about Ns Biotheis' coloui weie maue in
the woikplace at the BEA "on seveial occasions", anu hau the effect of making Ns
Biotheis "uistiaught", "upset", anu "sauueneu". Ns Biotheis hau confiueu these
feelings to Ns Colley at the time. Ns Colley iecalleu that Ns Biotheis planneu to
complain foimally about the comments to Ns Smith-Beiiiott, who helu the position
of "BEA Co-oiuinatoi", Acting Executive Biiectoi, anu who was also Ns Biotheis'
immeuiate supeivisoi. Ns Colley offeieu that the BEA's failuie to iesponu to those
kinu of comments at the time when they weie maue left "an impiession" with hei
about the oiganization.

Page 14 of 42

29. Ns Smith-Beiiiott acknowleugeu being piesent foi at least one meeting that
incluueu Ns Biotheis anu othei Regional Euucatois in 0ctobei 2uu6. This was one
of the meetings when Ns Biotheis says that comments weie maue about hei age
anu skin coloui. Ns Smith-Beiiiott testifieu that she uiu not iecall such comments
being maue, but was not uenying that they weie maue.

Su. Like Ns Smith-Beiiiott, the BEA Piesiuent, Ns Sheila Lucas-Cole, uenieu
heaiing any comments about Ns Biotheis' coloui at the 0ctobei 6, 2uu6, meeting
when she was piesent. She uiu iecall a comment fiom anothei Regional Euucatoi
that Ns Biotheis "pouts like a 12 yeai olu" anu "I'm assuming I shut that uown at the
time". She appieciateu that comments about skin coloui in the woikplace woulu be
inappiopiiate, although she also felt that it woulu be incumbent on the taiget of
such comments to speak up anu to explain how the speakei hau "oveisteppeu theii
bounus".

S1. Ciystal Angela States was the peison iuentifieu by Ns Biotheis as the peison
who specifically spoke about hei skin coloui at the uala planning meeting on
0ctobei 6, 2uu6. Ns States was calleu as a witness by the BEA. Ns States seiveu as
the Regional Euucatoi foi the Noithein Region. In auuition to hei eviuence about
the 0ctobei 6 meeting, she gave some iathei non-specific eviuence about the
financial accountability iequiieu of Regional Euucatois, as well as the extent of
supeivisoiy authoiity that coulu be exeiciseu by a Regional Euucatoi ovei a Site Co-
oiuinatoi.

S2. As a iesult of the 0ctobei 6 meeting, Ns States became involveu in
ueveloping the euucational component of the uala. She appieciateu that the
uecoiations Ns Biotheis aiiangeu foi the uala weie "stunning", anu saiu that fiom a
visitoi's peispective, the uala was a "wonueiful event". Bowevei, Ns States also
testifieu that the leau-up to the uala hau been maue uifficult by a failuie on the pait
Page 1S of 42

of Ns Biotheis anu the othei leau Regional Euucatoi to communicate effectively
about the planning.

SS. Ns States claimeu some iecall of the special 0ctobei meeting to uistiibute
iesponsibility foi the euucational component of the uala. Ns States iuentifieu Ns
Smith-Beiiiott as being piesent at the meeting. Ns States iecalleu that uuiing the
special meeting one of the Regional Euucatois ciiticizeu Ns Biotheis foi pouting
anu acting like a 12 yeai olu, just as Ns Biotheis stateu in hei complaint to the
Commission. In iesponuing to questions about the uepth of hei iecollection of the
meeting, Ns States acknowleugeu having uiscusseu hei memoiies of it with the
Regional Euucatoi who hau actually maue the "12 yeai olu" comment. Ns States saiu
that she hau been ieminueu of that comment by its makei, iathei than having hau
an inuepenuent iecollection of it.

S4. Ns Biotheis saiu that Ns States maue the comment at the meeting that Ns
Biotheis "shoulu go woik foi whitey" because Ns Biotheis was "light-skinneu". Ns
States uenieu making that comment. When shown Clauuette Colley's signeu, wiitten
statement (which Ns Colley hau auopteu unuei oath: Exhibit 6, Pait II, Tab S1)
iecounting that Ns States hau maue the comment to Ns Biotheis about "going to
woik foi 'whittie'", Ns States expiesseu "uisappointment" that Ns Colley "woulu
make that statement against me".

SS. In iesolving this uiiect conflict in the eviuence about whethei oi not Ns
States maue a potentially colouiist comment towaius Ns Biotheis at the 0ctobei 6,
2uu6, meeting, I have consiueieu a numbei of things. I of couise consiuei the D,D!
D%&4 eviuence of Ns Biotheis anu Ns Colley, which I uo tiust as accuiate. The
eviuence of Ns Smith-Beiiiott anu Ns Lucas-Cole is not helpful because they
uisclaimeu any iecollection of specific colouiist comments at the meeting.

Page 16 of 42

S6. Ny view of Ns States' eviuence was that she was always enueavouiing to tell
the tiuth to the best of hei iecollection. She uiu howevei acknowleuge uiscussing
these long-ago events with anothei paiticipant in the event, anu acknowleugeu that
she hau been ieminueu of some significant uetails about the events of inteiest to
this Inquiiy - events that she hau not iecalleu on hei own. She also testifieu that she
uiun't know whethei commenting on a peison's light skin coloui woulu be offensive,
but "iealistically in my woilu" it was a benefit to have a coloui closei to that of the
"uominant iace". "You uo have to play that game." Those weie hei woius. She
suggesteu that the "go woik foi whittie" comment shoulu actually be seen as a
compliment.

S7. I concluue fiom the whole of the eviuence that Ns States uiu in fact make the
comments iefeiencing Ns Biotheis' skin coloui at the 0ctobei 6, 2uu6, meeting. She
uiu not make them with any intent to offenu, but was likely meiely expiessing hei
own woilu view. So while the comments hau an enuuiing effect on Ns Biotheis, anu
an obvious iesonance with Ns Colley, they woulu have been nothing special to Ns
States at the time.

S8. Ns Colley's eviuence suggesteu that such comments about skin colouiing
weie commonplace at the BEA. That may be why they weie not memoiable foi Ns
Lucas-Cole, oi Ns Smith-Beiiiott, oi peihaps unheaiu. Since Ns States was not
calleu out foi the comment at the time, neithei she noi these oiganization leaueis
woulu have hau any special ieason to iemembei the specific comment. I believe that
the colouiist comments weie maue on 0ctobei 6, 2uu6. I also accept the eviuence
that similai comments about skin coloui weie maue to Ns Biotheis in the
woikplace at othei times as well.

S9. The salient points which I uiew fiom all of this eviuence is that theie weie
comments about Ns Biotheis' age anu skin coloui uuiing woiking meetings of the
Page 17 of 42

BEA, when leaueis of the oiganization weie piesent. I am theiefoie able to concluue
that leaueis of the oiganization - incluuing specifically Ns Smith-Beiiiott - weie
awaie that such colouiist anu age-ist comments weie being maue. I also uiew fiom
that eviuence that the failuie of the BEA leaueiship to iesponu oi to ieact to such
woikplace comments was noticeable anu huitful not only to Ns Biotheis, but also
othei bi-iacial employees such as Ns Colley.

4u. The BEA ultimately aigueu that I shoulu not give cieuit to the allegations of
Ns Biotheis about colouiist iemaiks in pait because she nevei maue a foimal
complaint that they weie being maue to hei at the time. The failuie to make a foimal
complaint at the time uoes nothing to uevalue the cieuibility of Ns Biotheis in
ielation to the comments being maue, anu the ieal impact of them. Ns Biotheis uiu
make a contempoianeous iepoit about them, anu theii impact, to Ns Colley. Also,
the failuie to foimalize a complaint to Ns Smith-Beiiiott, the BEA's Acting Executive
Biiectoi, about this situation is unueistanuable given that Ns Biotheis was, soon
aftei the uala, fully engageu in a faiily auveisaiial uiscussion of financial issues with
Beau 0ffice. Ns Biotheis also knew that Ns Smith-Beiiiott hau faileu to inteivene
uuiing BEA meetings when such comments weie maue. Finally, Ns Biotheis was
soon uealing with anothei seiious pioblem ueveloping with hei own staff in the
valley Region.

41. Ns Biotheis' Site Co-oiuinatoi in the valley Region was Catheiine Colliei. Ns
Colliei hau unsuccessfully competeu against Ns Biotheis foi the Regional Euucatoi
job, but then hau been hiieu by Ns Biotheis foi the Site Co-oiuinatoi position
commencing in the fall of 2uu6. Some time in 0ctobei 2uu6, Ns Colliei, who hau
been pieviously employeu by the BEA, maue it cleai that she uiu not appiove of Ns
Biotheis' choice foi Ns Biotheis' new Auministiative Assistant, oi that the new
Auministiative Assistant woulu also be woiking as an Euucational Specialist in the
valley Region.
Page 18 of 42

42. Ns Biotheis testifieu that she was subjecteu to colouiist comments fiom Ns
Colliei. The majoiity of these comments, she saiu, occuiieu in hei Kentville office.
Some weie maue in the piesence of hei Auministiative Assistant. The comments
ielating to Ns Biotheis' skin coloui pioposeu that hei skin coloui was a baiiiei with
the black people in the community. Ns Biotheis was, it was saiu, too light skinneu to
"officially iepiesent them" because she "wasn't black enough.": (p.62, Becembei S,
2u1S). Ns Biotheis latei ielateu the encountei as involving the comment by Ns
Colliei that "the community uiun't like me anu they wanteu a black peison in the
Regional Euucatoi job that was actually black to piopeily iepiesent them.": (p.6S,
Becembei S, 2u1S). Ns Biotheis saiu that she spoke about these at the time to hei
supeivisoi, Ns Smith-Beiiiott, anu was uiiecteu to ueal with them at the lowest
level, which I unueistoou to be some kinu of veibal caution by Ns Biotheis to Ns
Colliei.

4S. That was not all. In one of theii eailiest encounteis, Ns Colliei hau askeu the
new Auministiative Assistant "Aie you black.", oi "Aie you even black.". The
Assistant peiceiveu that inquiiy to be uisciiminatoiy on a colouiist anu iacial basis.
The Assistant maue a foimal wiitten complaint about the mattei to Ns Biotheis on
Novembei 9, 2uu6. 0vei the couise of the next month, Ns Colliei iesisteu anu uefieu
Ns Biotheis' effoits to iesolve that pioblem. She contacteu Ns Smith-Beiiiott's
office in wiiting on Becembei 6, 2uu6 about Ns Colliei's behavioui anu colouiist
comments towaius the Auministiative Assistant. 0n Becembei 12, 2uu6, Ns
Biotheis was still awaiting a iesponse fiom Ns Smith-Beiiiott about how to ueal
with the impasse ovei Ns Colliei's iemaiks which hau cieateu a "hostile situation"
in hei Region. No iesponse evei came.

44. In hei own eviuence, Catheiine Colliei maue some acknowleugement that
she hau maue the comments attiibuteu to hei by Ns Biotheis' Auministiative
Page 19 of 42

Assistant, but not the comments to Ns Biotheis heiself. Ns Colliei was quick to
point out, shaiply, that hei inquiiy "Aie you even black.", oi "Aie you black." was a
noimal, appiopiiate inquiiy, anu not intenueu by Ns Colliei to be uisciiminatoiy.
Accoiuing to hei, those who took a uiffeient view of hei comments weie "blowing
things out of piopoition". That, unfoitunately, is one of the cential pioblems that I
hau with Ns Colliei's eviuence in the context of this uisciimination inquiiy. It is not
hei sense of "piopoition" that is applicable when I assess hei behavioui. It is not hei
,*.4*.,%* that is applicable when I assess hei behavioui. The stanuaiu that applies is
how hei behavioui affects otheis. That is the stanuaiu iequiieu by the language of
the '()!* +,-$./ 0&..

4S. Ns Colliei was in 2uu6, as she iemaineu in 2u1S, vocal anu opinionateu anu
unmovable in hei views. Bei obviously intimiuating behavioui towaius Ns
Biotheis' Auministiative Assistant coulu be nothing othei than upsetting to a new
employee. It pieuictably piompteu a wiitten complaint by the new employee to Ns
Biotheis. Ns Biotheis iesponueu appiopiiately accoiuing to BEA policy by
iequesting that Ns Colliei sit uown with the new hiie to iesolve the pioblem that Ns
Colliei's behavioui hau cieateu. If, as Ns Colliei suggesteu at times uuiing hei
eviuence, she hau nevei meant anything iacial oi colouiist by hei comments, then a
face to face apology woulu have put an enu to this mattei in 2uu6. Ns Colley iefuseu
to uo that because, cleaily, theie was much moie to it.

46. In ielation to Ns Colliei's testimony geneially, it was cleai fiom the whole of
the eviuence that even 8 yeais aftei theii mutual employment at the BEA, Ns Colliei
maintaineu a peisistent anu active uislike foi Ns Biotheis as a peison. That uislike
was, fiankly, palpable in the heaiing ioom. Even though she was the one who
maintaineu hei employment at the BEA aftei Ns Biotheis was teiminateu, Ns
Colliei was - neaily a uecaue iemoveu fiom these events - by tuins angiy, uefensive,
uefiant, anu aigumentative. Buiing hei eviuence, Ns Colliei stoutly iefuseu to even
Page 2u of 42

acknowleuge the obvious anu significant age uiffeience between the two of them
(close to 2u yeais). This woulu have haiuly been a uamaging concession by hei, but
by iefusing to acknowleuge it, Ns Colliei uemonstiateu a continuing, petty
vinuictiveness towaius Ns Biotheis. In shoit, Ns Colliei gave hei eviuence about Ns
Biotheis with an attituue that showeu no iespect foi Ns Biotheis as a peison, anu
in my view viviuly miiioieu how she hau behaveu towaius Ns Biotheis uuiing theii
employment ielationship back in 2uu6.

47. I coulu iecount seveial examples of Ns Colliei's behavioui while unuei oath
which woulu justify iejection oi uistiust of hei eviuence. I will cite only one. The
example I will uesciibe is how she chose to iesponu just as aggiessively towaius
Commission counsel as she hau towaius Ns Biotheis in 2uu6. When she iealizeu
that hei behavioui towaius Ns Biotheis anu the Auministiative Assistant coulu be
iegaiueu as inappiopiiate, she launcheu a peisonal attack against Commission
counsel foi the way that he was asking questions: (pp.194, 226 - 2Su, Becembei S,
2u1S). She uiu this uespite the fact that counsel hau been sciupulously polite anu
faii in his questioning. Stanuing alone, Ns Colliei's outbuist might have been
foigiven baseu on hei possible unfamiliaiity with the auveisaiial piocess. Bowevei,
that ieaction uiu not stanu alone. At an eailiei point uuiing Ns Colliei's examination
by Commission counsel, she tiieu to shut uown his line of questioning in ielation to
colouiism issues on the basis that he woulu not be able to unueistanu because he
was "not black" - though he himself is a peison of coloui (p.9S, Becembei S, 2u1S).

48. Ns Colliei's attituue while testifying effectively uiscouiageu me fiom ielying
upon hei eviuence as accuiate when it conflicteu with the eviuence of othei
witnesses. She veiy cleaily sees the woilu thiough hei own lens. She uemonstiateu
an active memoiy in the sense that events weie always iecalleu in a way that
suppoiteu the naiiative that she wanteu to communicate. I have no uoubt that Ns
Colliei passionately believes what she saiu while unuei oath. Bowevei, I uo not feel
Page 21 of 42

able to iely upon what she saiu at all unless it is suppoiteu by some othei eviuence
which I uo finu to be inuepenuently ieliable. Baseu on the uepth of uislike
uemonstiateu by Ns Colliei towaius Ns Biotheis in 2uu6 anu again in 2u1S, anu
hei aigumentative appioach to giving eviuence in iesponse to legitimate anu piopei
questions fiom both Ns Biotheis anu Commission counsel, I am not able to tiust
that hei testimony about the ciitical encounteis in this case is ieliably accuiate anu
tiue.

49. Ns Colliei has veiy uefinite views about the impoitance of skin coloui. In
auuition to hei acknowleugeu question uiiecteu at the new Auministiative Assistant
about hei heiitage, anu hei explicit note of Commission counsel's lack of blackness
uuiing the heaiing, she also uesciibeu how the focus on skin coloui was, in hei
minu, a cential mission of the BEA. In iesponuing to questions fiom the BEA
iepiesentative, she saiu this, at pp.19u-191 (Becembei 4, 2u1S):

A. I woik in the school system. I see a lot of chiluien who neeu help, they neeu
assistance, they neeu someone who's going to be visually of theii coloui, of
theii - not only theii coloui, but sometimes when you see a chilu in school anu
they'ie looking anu they'ie going, "0h my uou, I uon't see no one of my - uo
they like me. Bo they not like me. What's going on."
Q. When you say, "coloui," what uo you mean when you say, "coloui".
A. I mean - when I'm talking about coloui, a little black chilu is in a school, they
come in giaue piimaiy anu they'ie in school, anu all of a suuuen they'ie in a
class of all Caucasian, anu that little chilu - when you look at that little chilu,
you uon't know what they'ie thinking. I can come by anu they'ie going, "0h."
They may not speak to the iest of the class oi they may be shy with the
teachei, but I can walk by anu that chilu is going to look at me anu say - if I say,
"uoou moining. Bow aie you." anu have a smile on, then they'ie going to
answei me back anu smile to me because, you know what, they know that
they'ie ielating to someone of theii coloui.

Anu to Ns Biotheis heiself she saiu this, at pp.181-182 (Becembei S, 2u1S):

Page 22 of 42

A. visible Black woman means that if you'ie in a school setting, when I stateu
that, a chilu of coloui will look anu see someone of theii coloui. If a chilu has
been in the home of a Black family all theii life anu they'ie giowing up anu all
of a suuuen it's the fiist uay of school. They'ie scaieu, whatevei, anu they go to
school. Anu it's - anu if they see someone of theii own coloui, sometimes the
intimation |I heaiu "intimiuation" uuiing the eviuencej foi them is a little bit
less.

See also hei comments to Commission Counsel: (pp.71 - 72, Becembei S, 2u1S).

Su. I am peisuaueu by the whole of the eviuence that skin coloui is an impoitant
human classifiei foi Ns Colliei now, anu was just as impoitant to hei in 2uu6. I am
also peisuaueu that Ns Colliei's peisistent inteiest in skin coloui means that Ns
Biotheis' skin coloui contiibuteu to Ns Colliei's thinking about anu behavioui
towaius Ns Biotheis. I theiefoie accept as accuiate the eviuence of Rachel Biotheis
that Ns Colliei uefieu Ns Biotheis at least in pait because of Ns Biotheis' age anu
skin coloui.

S1. Ns Colliei's behavioui towaius Ns Biotheis in 2uu6 was, fiankly, appalling.
Ns Colliei acknowleugeu that she chose to uisiegaiu Ns Biotheis' effoits to get hei
to come to a iesolution of the issue with the Auministiative Assistant. Email
coiiesponuence fiom 2uu6 also uocuments how Ns Colliei contacteu the BEA heau
0ffice foi the puipose of iestiuctuiing hei pay anu iepoiting obligations to avoiu
having to ueal with eithei Ns Biotheis oi the new Auministiative Assistant, oi to at
least minimize the contact. Ns Colliei uiu not communicate with Ns Biotheis about
piogiam ueliveiy in a way that peimitteu appiopiiate supeivision. Ns Colliei also
unilateially ueciueu not to peifoim tasks that she hau taken on eailiei in ielation to
a Kwanzaa event, which also uetiacteu fiom the anticipateu quality of BEA
piogiams in the Region that Ns Biotheis was tiying to uelivei. While Ns Colliei
enueavouieu on some occasions to soften hei eviuence slightly by quibbling with
phiasing anu avoiuing uiiect answeis to many questions, it is eviuent to me that in
Page 2S of 42

2uu6, Ns Colliei's uefiant behaviouis towaius Ns Biotheis weie motivateu laigely
by Ns Biotheis' skin coloui anu Ns Biotheis' much youngei age.

S2. }acqueline Smith-Beiiiott testifieu about what was going on at the time fiom
the peispective of the BEA Beau 0ffice. She was the Acting Executive Biiectoi
uuiing the fall of 2uu6, anu at the time of Ns Biotheis' teimination. She was also
tiansitioning out of the iole of Executive Biiectoi at the time of this Buman Rights
heaiing. Theie hau been a faiily laige gap in between those stints as Executive
Biiectoi of the BEA. She also self-iuentifieu as a bi-iacial woman.

SS. I hau a consiueiable amount of uifficulty with the eviuence given by Ns
Smith-Beiiiott. Although she filleu the most senioi paiu staff position at the BEA
uuiing the ciitical times in 2uu6, anu in 2u1S - 21u4, she piesenteu heiself as quite
inauequately piepaieu to speak about issues that woulu have been in the foiefiont
uuiing those times. She saiu that she hau spent time uiscussing the financial
conceins about Ns Biotheis with the foimei finance officei, Kathiyn Beibeit, in late
2u1S in piepaiation foi hei appeaiance at this inquiiy. Bowevei, she was quite
vague at the heaiing when making allegations anu insinuations about financial
misconuuct by Ns Biotheis. When askeu whethei theie was any uocumentation
about othei financial conceins beyonu those ielateu to the uala being biought to Ns
Biotheis' attention, she again saiu that theie might be something "in the file", but
she hau nothing to piouuce to the inquiiy. She coulu not pioviue an explanation as
to why those othei conceins hau not been iefeiieu to in any coiiesponuence with
Ns Biotheis that was piouuceu to the inquiiy. When askeu whethei Ns Biotheis
hau been given some kinu of waining about financial issues, Ns Smith-Beiiiott saiu
that she hau, anu that theie might be a notation in the peisonnel file, but she uiun't
know. She hau not gone to look. She thought at one point that she "may" have given
seveial veibal wainings.

Page 24 of 42

S4. Theie is fuithei cause foi me to be tioubleu by Ns Smith-Beiiiott's eviuence.
0ne of the impoitant submissions of the BEA in this pioceeuing was that Ns
Biotheis' employment contiact was only foi one yeai, anu that she was still a
piobationaiy employee when teiminateu in Becembei 2uu6. Bespite knowing that
that was what the BEA aigument was going to be, she uiu not aiiange, as one of the
leau piesenteis anu witnesses foi the BEA, to piouuce that contiact, oi to leau
eviuence that she hau gone to look foi it in Ns Biotheis' peisonnel file. She uiu not
iepoit that it was missing, oi unavailable thiough loss oi uestiuction. She hau
simply not lookeu in Ns Biotheis' peisonnel file foi a uocument that may have been
a ciitically impoitant pillai to the BEA's uefence to this human iights claim.

SS. Nost impoitant foi piesent puiposes, Ns Smith-Beiiiott claimeu an almost
total unfamiliaiity with coiiesponuence that hau been uiiecteu to hei attention oi
hei Secietaiy's attention (Ns Clauuette Colley) in 2uu6, incluuing the
coiiesponuence ielating to Ns Colliei's behavioui in the valley Region. She
eventually agieeu that she must have seen some of the coiiesponuence uiiecteu to
hei email oi office auuiess, but that is as fai as she woulu go. She claimeu little oi no
iecall with iespect to what she hau uone about that coiiesponuence. I uo not finu
that eviuence ieliable oi tiustwoithy. The fact of the mattei is that Ns Smith-
Beiiiott hau to have seen that coiiesponuence ielating to Ns Colliei's behavioui,
anu eithei ignoieu it, oi consciously chose to uo nothing about it.

S6. While Ns Smith-Beiiiott chose to speak at length about the conceins as to Ns
Biotheis' financial competence, hei ieticence in teims of ciiticizing Ns Colliei's
behavioui anu attituues towaius Ns Biotheis, anu the absence of any action at all in
ielation to the wiitten conceins about Ns Colliei's behavioui towaius Ns Biotheis'
Auministiative Assistant, was louuly instiuctive. While Ns Smith-Beiiiott moutheu
the woius that uisciimination baseu on iace oi skin coloui oi age woulu be
inappiopiiate, hei actions uemonstiateu that hei office was peisistently ueaf when
Page 2S of 42

those conceins involveu Ns Biotheis oi Ns Biotheis' Assistant. Effoits by
Commission counsel oi Ns Biotheis to exploie the events of the late fall of 2uu6 at
Beau 0ffice weie iepeateuly fiustiateu by Ns Smith-Beiiiott's testimony that she
uiu not iecall ieceiving, oi seeing, oi how she iesponueu to, specific emails anu
letteis uesciibing the things that weie uestabilizing the valley Regions'
piogiamming anu woiking enviionment. Insteau, on seveial occasions uuiing hei
eviuence Ns Smith-Beiiiott offeieu iueas as to why Ns Colliei might have been
justifieu in peisisting with hei insuboiuinate behavioui towaius Ns Biotheis. She
also iefuseu to acknowleuge, in almost the same woius as Ns Colliei, the significant
anu obvious age gap between Ns Biotheis anu Ns Colliei.

S7. 0vei the couise of hei eviuence, I noteu that Ns Smith-Beiiiott became by
tuins combative, uefensive, anu vague. I have concluueu that Ns Smith-Beiiiott's
eviuence is not ieliable, anu that I am not able to accept hei offeieu iecollections as
tiustwoithy. This is my conclusion not only in ielation to the financial issues, but
also in ielation to hei eviuence about the issues of iacial, coloui, anu age
uisciimination.

S8. Sheila Lucas-Cole testifieu as a long-stanuing Boaiu membei anu volunteei
with the BEA since the miu-197us. In 2uu6, she was the Piesiuent of the
oiganization - a position she has helu on numeious occasions. As Piesiuent she was
a membei of the Boaiu. She was not pait of the uay to uay opeiations of the BEA,
anu hau little involvement with those opeiations. She ielieu insteau on the
infoimation that was pioviueu to hei, mostly by Ns Smith-Beiiiott.

S9. I was favouiably impiesseu by the eviuence of Ns Lucas-Cole. She canuiuly
iecalleu the "pout" comment maue at the 0ctobei 2uu6 meeting with the Regional
Euucatois, anu hei iesponse to it. She uiu not iecall a colouiist comment at the same
meeting. She focuseu insteau on uefusing the eviuent conflict that was biewing
Page 26 of 42

among the Regional Euucatois, anu getting them all to have a uniteu focus about
theii shaieu tasks in putting on the uala. She expiesseu similai views to those of Ns
States in ielation to light skin being a potential auvantage in oui society, anu so I
accept that she may not have noteu a comment about light skin coloui at the time.

6u. In teims of the issue involving Ns Biotheis anu Ns Colliei baseu on Ns
Colliei's comments to the Auministiative Assistant, Ns Lucas-Cole consistently
iesponueu to many questions with the asseition that she hau not been awaie, oi
familiai, with the vaiious pieces of coiiesponuence aiiiving at the Executive
Biiectoi's office on this issue. While she vieweu the "Aie you even black" comment
as not necessaiily wiong, she felt that it woulu have been impoitant to have a
conveisation about the natuie of the question, anu the appiopiiateness of any
inquiiy about a peison's coloui. She heiself iecounteu that she hau taken auvantage
of that kinu of question in hei own life to coiiect the questionei without taking any
peisonal offence.

61. Baseu on all of this eviuence, I concluue that the facts aie these. Ns Smith-
Beiiiott faileu to inteivene when colouiist iemaiks hau been maue about Ns
Biotheis at the 0ctobei 6 Regional Euucatoi meeting. Ns Smith-Beiiiott leu an
oiganization, accoiuing to Ns Colley, that toleiateu seveial comments being maue
about Ns Biotheis' coloui. Ns Smith-Beiiiott uiu nothing to iesponu to Ns
Biotheis' iequests about how to manage Ns Colliei uuiing Novembei anu
Becembei, 2uu6. Ns Smith-Beiiiott enuoiseu the insuboiuinate behavioui of Ns
Colliei towaius Ns Biotheis, by oveiiuling Ns Biotheis' attempt to suspenu Ns
Colliei anu taking no steps to iestiain the insuboiuinate behavioui anu attituues
being expiesseu by Ns Colliei. Without the benefit of conuucting any kinu of
investigation, Ns Smith-Beiiiott faileu to act at all in ielation to allegeu colouiist
behavioui by Ns Colliei towaius Ns Biotheis' Assistant that hau been biought to
Page 27 of 42

hei attention. Anu, Ns Smith-Beiiiott faileu to communicate any of this to the Boaiu
anu Piesiuent of the BEA.

62. It is theiefoie appaient to me fiom the eviuence that the BEA Beau 0ffice
was awaie of Ns Colliei's uefiant behavioui, anu conuoneu it. It was this ieceptive
iesponse by the BEA leaueiship, with the Boaiu Piesiuent at the time kept out of the
loop, which is ultimately most tioubling foi me. Essentially the Beau 0ffice of the
BEA co-opeiateu in the unueimining of Ns Biotheis as a Regional Euucatoi by a
pait-time employee who was uisaffecteu by Ns Biotheis' skin coloui, age, anu
authoiity. The BEA Beau 0ffice uiu this with knowleuge that Ns Colliei hau cieateu
a iacial oi skin colouiist issue in the valley Region office, anu with knowleuge that
Ns Biotheis was heiself the taiget of colouiist comments within the oiganization.
Theiefoie, I have been peisuaueu by the eviuence that the uecisions maue by the
BEA about Ns Biotheis aftei Novembei 1, 2uu6, anu incluuing at least up to
Becembei 18, 2uu6, weie maue in pait because of Ns Biotheis' coloui, anu how
employee sensitivities about that was affecting the woikplace.

>$4 L,*!*&,!< 9%);4.4*&4 =//(4

6S. The eviuence uiu uisclose that concuiient with all of the employment issues
alieauy uiscusseu, Ns Biotheis was iequiieu to complete hei financial
accountability foi the woik that she hau uone in suppoit of the 0ctobei uala. The
BEA leu consiueiable eviuence about theii conceins in ielation to Ns Biotheis'
financial competence anu tiustwoithiness. In piepaiation foi the uala event, Ns
Biotheis anu anothei Regional Euucatoi weie given leaueiship ioles. Ns Biotheis
applieu heiself to hei tasks with exubeiance. Buiing the couise of piepaiations, the
natuie of the event changeu somewhat - the family of one of the honoiees became
uisinclineu to paiticipate, anu funueis iequiieu moie of an euucational component
to the gatheiing. Shoitly befoie the event, the othei Regional Euucatois weie
Page 28 of 42

inuuceu to paiticipate in oiganizing the euucation piogiam - which was the special
0ctobei 6 meeting in Balifax uuiing which some of the ageist anu colouiist
comments weie uiiecteu towaius Ns Biotheis.

64. As one of the leaueis in piepaiing foi this special event, Ns Biotheis was
pioviueu with some cash auvances foi expenses. Theie was a mutual unueistanuing
that theie woulu have to be some kinu of accounting foi these expenuituies.
Cuiiously, theie was no wiitten instiuction pioviueu by the BEA to Ns Biotheis as a
new employee, noi as the employee assigneu to oiganize this event, as to wheie to
keep this cash (a sepaiate event bank account peihaps), whethei theie was a
iequiiement foi ieceipts foi all expenuituies oi only those above a ceitain amount,
whethei theie was a ceiling amount foi any expenuituies by Ns Biotheis without
piioi Beau 0ffice appioval, what kinus of expenuituies weie authoiizeu, how all hei
financial tiansactions weie to be iepoiteu, anu finally, when hei financial iepoit
woulu be uue.

6S. Beveloping a financial ieconciliation foi hei pait of the uala piepaiation
pioveu uifficult foi Ns Biotheis as she hau not maintaineu iecoius on an ongoing
basis in auvance of the event. She set heiself uniealistic ueaulines foi completion of
the ieconciliation woik. The effoit to assemble a coheient ieconciliation of
expenuituies aftei the fact eventually pioveu quite stiessful, anu she felt it
necessaiy to ask foi some meuical leave in the miust of that. As hei uealings with the
Beau 0ffice piogiesseu thiough Novembei, she was suspenueu, anu then sought the
assistance of legal counsel in iesponuing to Beau 0ffice, anu then became
unsuspenueu foi a shoit time. Inteiestingly, most of the BEA leaueiship weie out of
the countiy at a confeience at the time. Theie was little oi no uigency foi the
completion of the financial ieconciliation, anu yet no one at Beau 0ffice let Ns
Biotheis know that, oi came to assist hei.

Page 29 of 42

66. Eventually, Ns Biotheis was askeu to attenu a meeting in Balifax on
Becembei 14. At the Becembei 14 meeting Ns Biotheis was confionteu with a
numbei of specific, piepaieu financial questions that weie uifficult foi hei to
answei. Ns Smith-Beiiiott suggesteu that the ambush of questions was in fact a
puiposeful stiategy ueviseu by Financial 0fficei Kathiyn Beibeit. Ns Biotheis hau
askeu, but been auviseu that she uiun't neeu to piepaie foi the meeting. In
ietiospect, Ns Lucas-Cole felt that that was piobably unfaii. Ns Biotheis ultimately
offeieu to ieimbuise the BEA a substantial sum of money to iesolve the outstanuing
financial issues. Bowevei, in anothei abiupt tuin of events fiom hei point of view,
she was then visiteu at hei office by Ns Lucas-Cole anu Ns Smith-Beiiiott on
Becembei 18, 2uu6, anu teiminateu fiom hei employment with the BEA.

67. The BEA, anu paiticulaily Ns Smith-Beiiiott, pointeu to vaiious piovisions of
the BEA Peisonnel Policy Nanual (Ex.6, Pait III, Tab 11) iegaiuing the level of
financial iesponsibility iequiieu of employees. This uocument is confusingly uateu,
anu I am not comfoitable accepting the woiuing of the exhibit as the woiuing that
woulu have been applicable in 2uu6. No one was able to uesciibe foi me what was
amenueu on the vaiious uates iuentifieu foi amenuments on the fiont page of the
exhibit. Besiues, no one testifieu that Ns Biotheis hau ieceiveu any specific
oiientation oi tiaining in ielation to the policies set out in this uocument. Peihaps
eveiyone thought she shoulu have, but no one testifieu that it hau happeneu.

68. The BEA's Financial 0fficei at the ielevant time was Kathiyn Beibeit. She
appaiently is no longei with the BEA, but helpeu Ns Smith-Beiiiott piepaie to
testify at this inquiiy. None of the paities befoie this Boaiu of Inquiiy calleu hei as a
witness. She might have been able to speak to any instiuctions given to Ns Biotheis
about the aiiangements foi financial iesponsibility, anu the iationale foi any
iepoiting ueaulines, in 2uu6. uiven the weight that the BEA asks me to place on
Kathiyn Beibeit's views as justifying the teimination of Ns Biotheis foi financial
Page Su of 42

misconuuct, I woulu have expecteu them to piesent hei eviuence in some foim. The
BEA uiu not. I uo not uiaw any auveise infeience against the BEA because of that
uecision. Bowevei, the absence of eviuence fiom hei leaves me with nothing to
giounu a uecision oi even an infeience that theie was any uelibeiate, possibly
ciiminal, financial misconuuct oi malfeasance on the pait of Ns Biotheis.

69. The eviuence that I uo have uemonstiates that Ns Biotheis collecteu a
numbei of ieceipts foi miscellaneous expenses ovei the couise of the summei anu
eaily autumn of 2uu6 which she says involveu expenses incuiieu foi the uala. In hei
eventual iepoiting of these expenses, she cleaily (anu sometimes aumitteuly)
pioviueu some uuplicate ieceipts, some questionable ieceipts, anu some
inappiopiiate ieceipts. Foi some expenuituies, Ns Biotheis was unable to pioviue
any justification at all - which seems to be what leu some at the BEA to want to
believe that theie hau been theft oi some kinu of bieach of tiust. Aftei the
accusatoiy meeting in Balifax on Becembei 14, 2uu6, Ns Biotheis ultimately
offeieu to ieimbuise a substantial amount of money to the BEA, an offei that the
BEA accepteu anu then ueuucteu fiom Ns Biotheis' final pay. I uon't believe that the
BEA suffeieu any financial loss as a iesult of Ns Biotheis' behavioui.

7u. Ns Biotheis uiu take the oppoitunity on Becembei 6 anu 14, 2uu6, in the
miust of hei financial uiscussions with the BEA Beau 0ffice staff, to acknowleuge, in
wiiting, hei weakness in ielation to financial oiganization oi basic accounting.
Theie is no eviuence of any effoit by the BEA Beau 0ffice staff to pioviue guiuance
oi assistance in ielation to any aumitteu weakness. Insteau, the eviuence makes it
appaient to me that as eaily as the fiist week of Novembei, 2uu6, the BEA Beau
0ffice staff hau auopteu an auveisaiial attituue towaius Ns Biotheis. In theii
uealings with Ns Biotheis fiom that point until hei teimination, the BEA Beau
0ffice was less inteiesteu in achieving financial accountability than it was inteiesteu
Page S1 of 42

in maishalling eviuence to justify a uecision to get iiu of Ns Biotheis as an
employee.

71. The BEA uiu have legitimate conceins about Ns Biotheis' skills in teims of
financial iesponsibility. Bowevei Ns Biotheis was a new employee. She was
assigneu a significant task with limiteu guiuance, anu limiteu suppoit, fiom the
Beau 0ffice of the oiganization. 0nce the teims of ieimbuisement weie negotiateu,
theie was no appaiently compelling ieason foi the BEA to teiminate Ns Biotheis
baseu on the uala event - paiticulaily given its obvious anu acknowleugeu public
success. Inueeu, the BEA might well have leaineu fiom the expeiience that its own
communication anu tiaining anu inteinal contiol piocesses weie ueficient.

72. The BEA also pioposeu that Ns Biotheis coulu be teiminateu within the fiist
piobationaiy yeai of hei contiact with the BEA. This submission was auvanceu as
an alteinative giounu to justify the non-uisciiminatoiy teimination of Ns Biotheis.
The uifficulties with this position foi the BEA aie seveial. This was not the position
it ielieu upon in its teimination lettei to Ns Biotheis (Exhibit 6, Pait II, Tab 27)
uateu Becembei 1S, 2uu6, but ueliveieu by hanu on Becembei 18, 2uu6. Seconu,
none of the paities piouuceu Ns Biotheis' employment contiact with the BEA foi
me. The BEA anu Ns Biotheis uisagiee about its teims - anu in paiticulai about its
supposeu uuiation, anu whethei theie was piovision foi a pay inciease upon Ns
Biotheis' univeisity giauuation. Thiiu, I iepeat my inability to weigh the piovisions
of the Peisonnel Policy Nanual uocument as justifying Ns Biotheis' teimination
because of the unceitainty of the applicable woiuing as of 2uu6. I have ueciueu that
Ns Biotheis was not teiminateu because she was an unsuitable piobationaiy
employee.

Page S2 of 42

9%*.1!D4*.,%* %3 .$4 0&.

7S. Baseu on my appieciation of all the eviuence, Ns Rachel Biotheis was
competent anu capable at all aspects of hei job as a Regional Euucatoi with the
Black Euucatois Association. Any peiceiveu weaknesses in ielation to financial
iesponsibility weie cleaily iemeuiable with cleaiei instiuction anu supeivision by
hei employei. Bei employei suffeieu no financial loss as a iesult of Ns Biotheis'
accounting eiiois. In ielation to management of hei staff, Ns Biotheis was capable
of conuucting hiiing accoiuing to establisheu iules, assigning tasks anu
iesponsibilities, anu in instiucting hei staff as to how to iesolve appaient uisputes
in accoiuance with establisheu BEA policy.

74. Baseu on the eviuence befoie me, the BEA's only aiticulable ieason to
teiminate Ns Biotheis was financial misconuuct. I have ueciueu that this ieason
was, anu iemains, unsuppoitable on the eviuence piesenteu befoie me. I want to be
cleai that I am not evaluating the 14!/%*!7<4*4// of a teimination juugment maue by
iesponsible BEA staff. I am ueciuing that while the BEA hau legitimate giounus foi
concein about Ns Biotheis' financial accountability skills, these kinus of giounus
simply woulu not constitute self-suppoiting giounus foi the teimination of Ns
Biotheis' employment. Accounting ineptituue in the absence of cleai instiuction anu
supeivision uoes not amount to puiposeful financial misconuuct. The absence of
puiposeful financial malfeasance also eliminates the possibility of any tiue concein
about employee "tiustwoithiness".

7S. All of that then biings us back to the question of why, if not foi financial
misconuuct, Rachel Biotheis was summaiily teiminateu on Becembei 18, 2uu6. In
my view, the eviuence is quite cleai as to why. In my view, the valley Region anu
Rachel Biotheis hau become a pioblem in the minus of Ns Biotheis' supeiiois at
the BEA Beau 0ffice. Ns Biotheis was a pioblem because a pait-time employee in
Page SS of 42

the valley Region, who hau a longei histoiy with the BEA anu its establisheu staff,
ueciueu that Ns Biotheis was a pioblem. Ns Biotheis hau been chosen foi the
position of Regional Euucatoi in piefeience ovei Ns Colliei. Ns Biotheis was
substantially youngei than Ns Colliei. Ns Biotheis uiu not offei to extenu a job
posting foi hei Auministiative Assistant so that a canuiuate favouieu by Ns Colliei
might apply. Ns Biotheis hiieu a woman foi the position of Auministiative Assistant
anu Euucational Specialist who, in Ns Colliei's eyes, uiu not "even" appeai to be
black in coloui. I have alieauy explaineu my conclusion that in Ns Colliei's eyes, Ns
Biotheis was not ieally black enough eithei, given hei iemaiks to Ns Biotheis in
hei office, anu paiticulaily those comments which supposeuly ielateu the
community's view of Ns Biotheis' coloui.

76. Insteau of uoing as hei Regional Euucatoi askeu, anu insteau of making some
foim of amenus with the new employee on hei own, Catheiine Colliei chose to
elevate hei antipathy into a uiiect challenge of Ns Biotheis' authoiity. Ns Colliei
uefieu Ns Biotheis as I have uetaileu eailiei. This was extiaoiuinaiy behavioui foi
any employee. It might oiuinaiily be uesciibeu as "insuboiuinate". Anu yet not at
the BEA in 2uu6 foi Ns Colliei. The Beau 0ffice of the BEA ieacteu to this situation
in a way that knowingly conuoneu Ns Colliei's insuboiuination. The BEA Beau
0ffice uiu this knowing that the ioot of the complaints involveu Ns Colliei
expiessing iacial oi colouiist views towaius at least one othei BEA employee. The
Beau 0ffice staff, anu in paiticulai Ns Smith-Beiiiott, uiu not iesponu to the coie
issue iaiseu by Ns Biotheis, oi the new employee, noi uiu the Beau 0ffice staff
conuuct any inquiiies of Ns Colliei heiself about hei colouiist-baseu views. It was as
if Beau 0ffice staff felt that Ns Colliei hau nothing to answei foi - even though two
othei employees of the BEA weie expiessing uistiess about how Ns Colliei hau
poisoneu theii woik enviionment anu theii woik ielationships.

Page S4 of 42

77. The Beau 0ffice uisiegaiu of the complaints about Ns Colliei's
uisciiminatoiy attituues anu behavioui was so complete that it incluueu a failuie to
even infoim the Piesiuent of the Boaiu of Biiectois of the pioblem. This was a
ciitical anu conscious failuie by Ns Smith-Beiiiott. Ns Smith-Beiiiott also
conuoneu an oiganizational cultuie which alloweu iepeateu comments to be maue
about Ns Biotheis' coloui. That, in my view, establishes liability on the pait of the
BEA foi the uisciiminatoiy tieatment of Rachel Biotheis. It is a most unfoitunate
couise of action foi a volunteei-leu oiganization such as the BEA that its paiu staff
faileu to pass along infoimation about colouiist-baseu uisiuptive employee
behavioui. This is behavioui that coulu have been uealt with as Ns Lucas-Cole
uesciibeu at the heaiing of this inquiiy. The BEA Beau 0ffice non-iesponse in
ielation to Ns Colliei's behavioui ieally just completeu the ciicle with its non-
iesponse in ielation to the behavioui of othei BEA employees towaius Ns Biotheis
baseu on hei coloui.

78. I was also quite tioubleu as I listeneu to the eviuence that even in 2u14 many
of the same people who weie involveu in the BEA, anu who weie making uecisions
affecting Ns Biotheis in 2uu6, iemaineu ieluctant to uisassociate themselves fiom
the kinu of comments that Ns Colliei anu othei Regional Euucatois hau maue
towaius Ns Biotheis anu hei Auministiative Assistant. Rathei than being offenueu
by Ns Colliei's comments, too many of the staff maue effoits to excuse them, oi to
contextualize them, oi to even shiug them off as no big ueal. All of this ieinfoiceu
my conclusion that as an oiganization in 2uu6, the BEA Beau 0ffice accepteu
colouiist thinking. Even if some people continue to believe that it is a compliment to
iemaik on the lightei coloui of someone's skin, they shoulu now iealize that the
iecipients uo not always ieceive the comments that way.

79. Bowevei, the specific question befoie me is not whethei theie was an
accepteu cultuie of colouiist-baseu thinking at the BEA. The question is whethei the
Page SS of 42

BEA then maue uecisions about Ns Biotheis' employment that uisciiminateu
against hei on the basis of iace, coloui, oi age. With iespect to colouiist thinking
paiticulaily, I am able to concluue that the whole seiies of uecisions maue by the
BEA about Ns Biotheis anu hei employment staiting with the aiiival of the initial
Colliei complaint, weie maue in pait because of Ns Biotheis' coloui. Ns Biotheis'
skin coloui was a factoi in hei tieatment by hei immeuiate supeiioi anu otheis at
the BEA, which both cieateu an unpleasant woik enviionment foi Ns Biotheis, anu
ultimately leu to hei piematuie teimination by the BEA.

8u. As I have noteu eailiei, uisciiminatoiy behavioui involves behaving
uiffeiently towaius anothei peison baseu on some inheient anu unique peisonal
quality of the peison affecteu. Beie the BEA Executive Biiectoi became awaie that
Catheiine Colliei hau cieateu an employment pioblem with two othei employees in
Ns Colliei's iegion because of intimiuating coloui-baseu challenges. Bespite that,
the BEA's Acting Executive Biiectoi ieacteu as if the behvioui of Ns Colliei towaius
Ns Biotheis anu hei Auministiative Assistant uiu not mattei. The BEA Executive
Biiectoi left the countiy foi a couple of weeks without making any effoit to auuiess
the pioblem that Ns Colliei's behavioui hau cieateu, anu without even infoiming
the Piesiuent of the Boaiu, who was tiaveling with hei, about the pioblem. Why
woulu the BEA's Executive Biiectoi act this way. I have ueciueu that the only
ieasonable conclusion to uiaw is that the Executive Biiectoi hau alieauy ueciueu,
without investigation, that Ns Biotheis conceins uiu not mattei. This attituue
towaius Ns Biotheis was peipetuateu when it came time to inquiie into
outstanuing financial questions ielating to the uala. Although Ns Biotheis askeu
how she might aiiive piepaieu foi the meeting, she was consciously misleu about
the tiue puipose of the meeting foi a stiategic ieason - which was to maishal
eviuence thiough ambush to justify hei teimination. That kinu of conscious
misleauing of an employee happens when an oiganization has ueciueu that the
employee no longei matteis to them.
Page S6 of 42

81. Ns Biotheis no longei matteieu to the BEA because, ultimately, Ns Biotheis'
coloui, which hau alieauy uiawn comment among hei fellow Regional Euucatois,
hau become a pioblem foi Ns Colliei anu theiefoie a pioblem in the valley Region
office. Ceitainly Ns Colliei's attituues weie uestabilizing the woik of the BEA's
valley Region. Insteau of auuiessing the pioblem at the level of Ns Colliei's
behavioui, the BEA chose to stabilize the valley Region situation by teiminating Ns
Biotheis. The BEA then claimeu to have teiminateu Ns Biotheis foi a ieason which
I have founu to be unjustifiable. The only iemaining aiticulable ieason foi Ns
Biotheis' teimination on the eviuence befoie me is that Ns Biotheis' coloui was
causing the BEA a pioblem in the valley Region. They solveu that pioblem by
teiminating Ns Biotheis. In my view, that constitutes a violation of s.S(1)(u) anu (j)
of the '()!* +,-$./ 0&..

82. Nuch of the peisuasive eviuence in this mattei ielateu to comments about
Ns Biotheis about hei skin coloui. While hei young age was also the subject of
comment at Regional Euucatoi meetings, anu was an iiiitant to Ns Colliei, I am
unable to concluue that it affecteu any of the thinking oi uecisions maue about hei
by the BEA Beau 0ffice. I theiefoie uo not concluue that theie was any uistinction
maue in ielation to hei by hei employei baseu on hei age.

8S. I spoke eailiei in this uecision about the uifficulty expeiienceu by those who
self-iuentify as bi-iacial when colouiist comments aie maue. Bepenuing on the
intent oi peispective of the peison making the comments, the bi-iacial peison must
often be unceitain about whethei the comment on coloui also impoits some
concuiient qualitative evaluation of iacial oi cultuial puiity oi connecteuness.
Baseu on the entiiety of the eviuence heie, I am not piepaieu to finu that the BEA as
an oiganization maue any iacial oi cultuial evaluation of Ns Biotheis when
colouiist comments weie heaiu. In final submissions, I unueistoou that Ns Biotheis
Page S7 of 42

has also faiily come to this view. This is a case about uisciimination on the basis of
colouiism only. I uo not finu any uisciimination heie on the basis of iace.

+4)4"2

84. Rachel Biotheis lost hei employment at the BEA in pait because of uecisions
at the BEA in which hei skin coloui was a factoi, anu the pioblems that hei skin
coloui hau cieateu in hei office foi anothei BEA employee. ueneial uamages aie
noimally iegaiueu as an appiopiiate way to iesponu to such an act of
uisciimination. I woulu agiee that a cash awaiu paiu by the BEA to Ns Biotheis is
the most appiopiiate iemeuy heie, togethei with special uamages as uesciibeu
below.

8S. Section S4(8) of the 0&. authoiizes me to oiuei that any paity who has
contiaveneu the 0&. to uo any act oi thing that constitutes full compliance with the
Act, anu to iectify any injuiy oi to make compensation theiefoie, incluuing an oiuei
foi costs. Theie is nothing that I can iealistically uo 8 yeais aftei the fact to get the
BEA to act uiffeiently towaius Ns Biotheis in hei employment. I expect that hau Ns
Lucas-Cole been fully infoimeu at the time, Ns Biotheis woulu in fact have been
tieateu uiffeiently. Theie is theiefoie no tiaining oi euucation that I neeu to oiuei
foi the staff at the BEA. It is also uifficult to imagine what the BEA coulu uo now to
iectify the emotional injuiy of Ns Biotheis' abiupt teimination in Becembei 2uu6.
The piocess of the investigation, heaiing, anu the uecision heie will have pioviueu
some value in encouiaging conveisations at the BEA about issues aiounu skin
coloui. That leaves me with the obligation to calculate some foim of compensation
foi Ns Biotheis.

86. It is my view that any compensatoiy awaiu to Ns Biotheis shoulu iepiesent
an acknowleugement of the haim uone by the BEA to hei. 0ltimately the injuiy to be
Page S8 of 42

compensateu is the injuiy to Ns Biotheis' uignity anu self-iespect. I note in that
iegaiu that she uiu seek some meuical tieatment anu a shoit peiiou of time off uue
to accumulateu stiess in eaily Novembei 2uu6. Any cash awaiu shoulu ieflect the
significance of the uisciiminatoiy impact: a uifficult woik enviionment, incluuing a
loss of employment. The compensation awaiu shoulu also take into account that the
uisciiminatoiy behavioui involveu iepeateu comments fiom moie than one
inuiviuual. This was not an isolateu occasion of a single, uisciiminatoiy iemaik.
Bowevei, some of the uisciiminatoiy attituue which Ns Biotheis faceu about hei
skin coloui at woik was thoughtless anu caieless iathei than intentionally
uisciiminatoiy. I will not consiuei the BEA's iesponse to othei legal pioceeuings by
Ns Biotheis as justifying an elevation of the appiopiiate compensation amount - as
she suggsteu that I uo.

87. Theie is little specific guiuance fiom one case to the next as to what the
appiopiiate amount ought to be to compensate foi a human iights injuiy. I have
appieciateu the comments about compensatoiy cash iemeuies which appeai in
91%)K4<< DA 64%*S/ L(1*,.(14 6,),.4"? 2u14 CanLII 16S99 (NS BRC). Theie is a
limiteu ieview of compensation amounts oiueieu, usually uue to loss of
employment because of uisability uisciimination, in >1!/N DA T%D! 8&%.,! FI(/.,&4G,
2u1u NSBRC 1 (CanLII). I am of the view that the appiopiiate amount of geneial
uamages heie puisuant to my authoiity unuei s.S4(8) of the 0&. shoulu be within
the iange of $6,uuu.uu to $8,uuu.uu.

88. Ns Biotheis lost hei employment on Becembei 18, 2uu6, but was foitunately
not unemployeu foi long. She iesumeu employment on Apiil 2, 2uu7, anu in one
foim oi anothei has been employeu in the coiiectional fielu since. She uiu collect
employment insuiance in the inteiim, but claims a loss of wages of "appioximately
$S8S9." She also claims the BEA's failuie to pay a piomiseu salaiy inciease aftei
univeisity giauuation, anu the cost of completing hei uegiee - all of which she says
Page S9 of 42

was pait of hei contiact when hiieu. She seeks inteiest fiom the uate of teimination.
Ns Biotheis asks foi the costs of attenuing the heaiing, incluuing the value of
vacation uays that weie iequiieu to be taken because hei cuiient employei uiu not
iecognize this Boaiu of Inquiiy as couit time within the meaning of hei collective
agieement.

89. I am not piepaieu to awaiu compensation baseu on contiactual teims that
iemain in uispute between the paities. As I saiu eailiei, eithei paity might have
pioven the teims of the employment contiact by the piouucing it, oi piouucing
coiiesponuence oi othei uocumentation suppoiting some of the specific teims now
iefeienceu in oial eviuence, oi by calling othei witnesses who paiticipateu in the
negotiation of the contiact. All that I am piepaieu to consiuei in ielation to lost
income is the base amount claimeu

9u. I am not piepaieu to awaiu Ns Biotheis hei costs in teims of tianspoitation
anu vacation time to paiticipate in this Boaiu of Inquiiy piocess. She may have a
valiu claim unuei hei cuiient employment contiact foi compensation of hei
vacation time. The costs of hei tianspoitation, while aumitteuly iathei mouest in
this case, aie not of a type which aie within the contiol of this Boaiu, noi the BEA. I
uo not think that it woulu be faii to make an awaiu against the iesponuent in an
Inquiiy unuei the 0&. foi these kinus of costs. Each of the paities to an Inquiiy has
theii own costs of paiticipating, anu in the case of a iesponuent oi a witness, these
costs aie laigely involuntaiy with limiteu contiol of theii uimensions. A claimant at
an Inquiiy is piotecteu against costs being awaiueu against hei. Theiefoie, I believe
that it is appiopiiate in this case that each of the paities, incluuing Ns Biotheis, beai
theii own costs of paiticipating.

91. Ny awaiu of compensation to Ns Biotheis puisuant to s.S4(8) is a global
amount, foi geneial uamages anu hei loss of income, in the amount of $11,uuu.uu.
Page 4u of 42

Theie shoulu be piejuugment inteiest at 2.S% fiom the uate of my appointment
(Naich 28, 2u1S). Piioi to that uate, the BEA hau no iealistic contiol ovei the timing
of any of the pioceeuings. If theie is any uifficulty in calculating the inteiest, I ietain
juiisuiction to ueal with that.

92. I woulu like to thank all the paities, anu counsel, anu the witnesses, foi
paiticipating in this Inquiiy. I iegiet, on behalf of all who attenueu the heaiing, that
this mattei coulu not have been uealt with within a couple of yeais of the events.

Bateu at Balifax, Nova Scotia, this 29 th uay of }uly, 2u14.

______________________________________________________________
Bonalu C. Nuiiay, Q.C.
Boaiu of Inquiiy

Page 41 of 42

Appenuix "A"

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Becision on Aujouinment Request

I was appointeu to inquiie into this mattei on Naich 28, 2u1S. The complaint itself
was maue Febiuaiy 28, 2uu8, ielating to allegeu employment uisciimination that
hau occuiieu between }anuaiy anu Becembei 2uu6.

I aiiangeu a teleconfeience among the paities foi an oiganizational pie-heaiing
confeience, which occuiieu on }une 11, 2u1S. Eailiei uates hau been pioposeu but
one oi moie of the paities, oi theii counsel, weie not able to make themselves
available. It was suggesteu that S uays woulu be iequiieu foi the heaiing of the
mattei. At the time of the }une 11 teleconfeience, heaiing uates weie askeu foi
Febiuaiy 2u14, which weie iegaiueu in my view as unnecessaiily too fai out. Bates
in Novembei 2u1S weie offeieu (Novembei 1S, 14, anu 1S) anu acceptable to all -
subject to the availability of witnesses fiom the Black Euucatois' Association. A
fuithei pie-heaiing confeience uate was set foi Septembei 2u, 2u1S. Subsequently,
counsel foi the Black Euucatois' Association inuicateu that the Novembei uates foi
heaiing woulu not be woikable.

0n August 2, 2u1S, I was auviseu that the Nova Scotia Buman Rights Commission
woulu be iepiesenteu on this mattei by R. Lestei }esuuason. A teleconfeience was
scheuuleu foi Septembei 4, 2u1S. Ni }esuuason spoke on the Commission's behalf at
the Septembei 4, 2u1S, teleconfeience. At that time, aftei canvassing all the paities,
incluuing Ns Biotheis who woulu be iequiieu to take time fiom hei cuiient
employment to attenu, S heaiing uays weie founu: Becembei S, 4 anu S, 2u1S.
0ctobei uates hau been offeieu but weie ueclineu.

0n Weunesuay, Novembei 2u, 2u1S, I ieceiveu email communication fiom R. Lestei
}esuuason which inuicateu on my email piogiam hau been sent aftei 11:uu pm the
night befoie (Novembei 19, 2u1S). Among othei things, this email auviseu that:

a) Resolution uiscussions hau taken place but hau been unsuccessful;
b) As of Novembei 8, 2u1S, The Black Euucatois' Association was no longei
going to be iepiesenteu by Ns Noella Naitin oi Wickwiie Bolm;
c) The paities wisheu to aujouin the heaiing scheuuleu foi Becembei in case
fuithei uiscussions by the Boaiu at the Black Euucatois' Association might
iesult in a iesolution of the mattei;
Page 42 of 42

u) While ieluctant, Ns Biotheis agieeu to the iequest foi an aujouinment, the
Commission was not taking a position, anu that I might convene a
teleconfeience to heai the aujouinment iequest.

Seven yeais have passeu since the allegeu uisciiminatoiy behavioui. Five yeais have
passeu since Ns Biotheis maue hei complaint to the Commission. Novembei 2u1S
heaiing uates weie lost because the Black Euucatois' Association's witnesses weie
appaiently not going to be available at that time. A negotiateu iesolution was not
appaiently acceptable to the Black Euucatois' Association Boaiu. The Black
Euucatois' Association has now chosen to iepiesent itself less than a month befoie
the scheuuleu heaiing uates.

I have no sense fiom anything communicateu to me by Ni }esuuason on behalf of all
the paities that this mattei is going to iesolve. I have been appointeu to conuuct an
inquiiy into this mattei anu will uo so commencing on the agieeu uates of Becembei
S, 4, anu S, 2u1S, at Balifax.

I uo not have contact infoimation foi the Black Euucatois' Association. I expect that
Ni }esuuason will uelivei these ieasons confiiming the heaiing uates to all of the
paities.

Bateu this 2u
th
uay of Novembei, 2u1S at Balifax, Nova Scotia.

Bonalu C. Nuiiay, Q.C.
Boaiu of Inquiiy

N.S. Human Rights Inquiry - Brothers Decision

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