Dowling was successful in his application for judicial review of the decision of a Human Rights Panel of the Prince Edward Island Human Rights Commission where the Court held that the Commissioner erred in proceeding to determine the issue of damages without hearing submissions from the parties

Administrative law – Human rights complaints – Discrimination – Decisions of administrative tribunals – Human Rights Commission – Judicial review – Procedural requirements and fairness – Natural justice – Evidence

Dowling v. Prince Edward Island, [2006] P.E.I.J. No. 52, Prince Edward Island Supreme Court – Trial Division, September 25, 2006, J.R. Matheson C.J.T.D.

Dowling alleged that the Government of Prince Edward Island had discriminated against him on the basis of political belief and association with an individual or class of individuals. Specifically, Dowling alleged that he was fired from his job as a golf professional and was not permitted to apply for a new position of golf shop supervisor because he was a member of the Liberal Party and the candidate for the Liberal Party in the provincial election. At the hearing, the Commissioner found that Dowling had not proven on a balance of probabilities that the government had discriminated against him in employment on the basis of political belief by eliminating the position of golf professional at the golf course. However, the Commissioner did find that Dowling had proven on the balance of probabilities that the government had discriminated against him by failing to offer him an opportunity to compete for the position of golf shop supervisor at the course. The Commissioner then went on to award $5,000 for hurt and humiliation and costs in the amount of $9,600. The Commissioner did not award any damages for loss of income. Prior to the hearing, counsel for Dowling and counsel for the government had agreed amongst themselves that, if Dowling was successful, he could then call evidence on damages at a separate hearing. However, no one specifically advised the Commissioner of this arrangement.

The Court held that the a Human Rights Panel is required to apply the rules of procedural fairness, including the right of parties to lead evidence and make submissions on issues before the Panel. Failure to do so is a violation of natural justice. The Court held that the Commissioner erred in failing to address Dowling’s request for a hearing on remedy and in proceeding to determine the issue of damages without hearing submissions from the parties. In the result, the issue of remedy was remitted back to the Commissioner to hear evidence.

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