View cases - Stewart McKelvey

4a) there is a strong prima facie case, both in fact and law;b) there is evidence of a substantial loss or damage to thecomplainant and a clearly identifiable remedy;c) the complainant had justifiable reasons –reasons beyond his/hercontrol- for not filing the complaint within the one year timelimit; andd) the respondent will not be unduly prejudiced by the extension.2.1 INTERPRETATION2.1.1 “Justifiable reason(s) beyond his/her control” includes:i) mental or physical disability;ii) the exercise of a statutory or other applicable appeal or reviewright in a timely and appropriate fashion; oriii) other bona fide reason, as determined by the Commission.2.1.2 “Undue prejudice”, in the context of this Guideline, means an actual lossof evidentiary position as a result of the disappearance of a witness, document orother evidence.2011 NBQB 131 (CanLII)Duty of Fairness[6] Did the NBHRC comply with the principles of natural justice?[7] Mr. Killam first approached the NBHRC on May 8, 2008 by way of atelephone conversation with an employee, Johanne Bertrand. On May 12, 2008, AlineBarnette, an intake officer, wrote a letter to Mr. Killam outlining the process to follow infiling a complaint. He was also provided with everything he needed to complete thecomplaint forms. He completed the forms, but did not file it with NBHRC. He blameshis failure to file on legal advice that he received. However, in the letter provided bycounsel to Mr. Killam, it was not obvious that counsel advised Mr. Killam that he should“delay the filing of the human rights complaint because if we lost it would prejudice mycivil suit”, as Mr. Killam stated in his affidavit evidence. In fact the following is takenfrom a letter from his counsel discussing the Human Rights Complaint:With reference to the Human Rights Act, your employment wasterminated during the time you were on stress leave. There are Court cases inNew Brunswick that indicate in such a case, there is a presumption thatdisability was a factor in the termination. If you had some medical evidence oropinion of your disability being in existence at the time of your termination, thatwould help in any claim you might make to the Human Rights Commission for