The Supreme Court of Nova Scotia has dismissed a judicial review application by a long-term care provider seeking to stop a human rights inquiry into the termination of a Black employee, ruling that delay in the case did not amount to a breach of fairness or an abuse of process.
Northwoodcare Halifax terminated A.B.’s employment in May 2019 following allegations that she had abused a resident. A.B. filed a complaint with the Nova Scotia Human Rights Commission later that year, claiming the termination was discriminatory and based on her African Canadian ancestry.
In 2024, after a prolonged investigation, the Commission referred the complaint to a Board of Inquiry. Northwood challenged that decision in court, arguing that the delay—spanning nearly five years—had prejudiced its ability to defend itself and amounted to an abuse of process.
The court rejected those arguments and found that the delay, while lengthy, was not inordinate or unfair given the complexities of the case and external factors such as the COVID-19 pandemic and jurisdictional uncertainty caused by evolving legal interpretations around unionized workplaces.
No breach of procedural fairness
Northwood contended that it could no longer mount a fair defence due to the delay, citing the death of the resident at the centre of the abuse allegation, the departure of key staff, and concerns over the reliability of employee records raised in the Commission’s investigation report.
The court disagreed, finding that “Northwood has failed to establish that the delay has impaired its ability to respond to Ms. Bundy’s complaint to such an extent that it compromises the fairness of the BOI hearing.”
It noted that the resident died only six months after the complaint was filed, making it “practically impossible” for the matter to have advanced to a hearing in that time. The unavailability of that witness, therefore, could not be blamed on the Commission.
The court also found Northwood had failed to show that former employees could not be located or that their evidence was essential and irreplaceable. While the company said memories had faded, it had not shown that any specific witness lacked recall or that their evidence could not be refreshed by documentation.
Importantly, the court emphasized that the role of the Board of Inquiry is not to determine whether abuse occurred, but rather whether racial discrimination played a part in the termination. That distinction meant that “the passing of the resident has little impact on Northwood’s ability to present evidence.”
It added that any shortcomings in Northwood’s own investigation immediately after the incident—particularly its failure to explore credibility concerns flagged later in the process—were its own responsibility. “Northwood cannot seek to gain advantage from the HRC’s delay while ‘ignoring their own opportunities to gather evidence well within their custody and control,’” the court wrote, citing earlier case law.
Delay not inordinate
Turning to whether the delay was inordinate and caused significant prejudice, the court applied the three-step test from Blencoe v. British Columbia (Human Rights Commission) and Law Society of Saskatchewan v. Abrametz.
The total delay between the filing of the complaint in November 2019 and the referral to the Board of Inquiry in June 2024 was just under four years and eight months. However, the court determined that about two and a half years of that period could be reasonably explained by pandemic-related shutdowns and a jurisdictional pause following a legal decision that temporarily cast doubt on whether the Commission could investigate unionized workplaces.
That left approximately two years and two months of investigative delay without specific justification. The court found that this remaining delay was not unreasonable, noting that human rights investigations are complex and involve multiple procedural safeguards to ensure fairness for both parties.
“These steps in the process take time,” the court stated, referencing precedent that delays must be assessed contextually, not by duration alone. It concluded that the unexplained portion of the delay was not sufficient to offend the community’s sense of fairness or bring the administration of justice into disrepute.
No significant prejudice found
Northwood also argued that the delay had harmed its reputation and damaged staff morale, particularly in light of its emphasis on diversity and inclusion. The court rejected this, noting that such reputational impacts were more likely the result of the underlying proceedings, not the delay itself.
It also emphasized that prejudice must be significant and directly caused by the delay to support an abuse of process claim. “The prejudice argued in the case at hand, even if it had been established, would clearly not constitute ‘the type of significant prejudice contemplated in Blencoe,’” the court wrote.
Moreover, it found that any prejudice was felt by the corporation—not an individual—and noted that corporate reputational harm alone was not the type of harm typically sufficient to establish abuse of process.
In comparison to other cases where abuse was found, including ones involving individual harm such as depression, professional restrictions, or media harassment, the court concluded that Northwood’s situation did not come close to meeting the high threshold required.
Application dismissed
The court ultimately ruled that the delay did not breach Northwood’s procedural rights or constitute an abuse of process. “In the circumstances, it would be unfair to Ms. Bundy to deny her the opportunity to have her complaint determined on its merits,” it wrote.
As a result, the judicial review application was dismissed, and the Board of Inquiry process will proceed.
For more information, see Northwoodcare v. Nova Scotia (Human Rights Commission) and Bundy, 2025 NSSC 212 (CanLII).
