Amanda Vaughan
Northern News Services
Published Friday, November 2, 2007

YELLOWKNIFE - A former worker's human rights complaint against Diavik Diamond Mines is proceeding to the next level.

Earlier this month, Supreme Court Justice John Vertes decided against Diavik in a civil action that the mining giant had taken against the NWT's Human Rights director, Therese Boullard, regarding a complaint made by a former employee.

"I think the decision is good in the fact that it clarifies what the role of the director is, and how the (Human Rights Act) is to be interpreted," Boullard told Yellowknifer on Wednesday.

Diavik's spokesperson, Tom Hoefer, said "Diavik respects the court's decision and will now follow the resolution process set out in the Human Rights Act."

Diavik had applied to quash a decision made by Boullard to refer former Diavik employee Peter Huskey's human rights complaint to the Human Rights Commission's independent adjudication panel.

Diavik fired Huskey in September 2005, and he filed the complaint in October 2005. In March 2006, Boullard appointed an investigator who prepared a report recommending that the complaint be dismissed.

After issuing the report to both Diavik and Huskey, allowing them to respond further, the director referred the complaint to a hearing with an adjudicator.

Diavik took numerous issues with Boullard's decision, accusing her of abusing her discretion and breaching procedural fairness. The mining company argued that she based her referral on the decision of a previous adjudication panel, on a case which had been sealed, therefore not allowing any of the involved parties to know the basis on which she had made this decision.

In his decision, Vertes outlined the territory's Human Rights Act, which contains a rather short list of criteria that the director can use to dismiss a complaint. In Huskey's case, Boullard could have only legally dismissed his complaint if she felt it was "trivial or frivolous, vexatious or made in bad faith."

"The terms 'trivial' and 'frivolous' are not to be equated with little likelihood of success. They refer instead to the lack of any apparent merit in the alleged complaint," Vertes said in his decision.

As to Diavik's accusation of a breach of procedural fairness, Vertes said in his decision it was unfair to hold the director to the same standards as a lawyer, considering that her position requires no legal background. In light of this, he found it reasonable that Boullard would feel bound by the sealing order in the previous case that she used to make the referral.

"I have no hesitation in saying that it is certainly preferable for any decision maker, in any case, to alert the parties to guiding case law if they are going to rely on it ... but it is not a hard and fast rule," Vertes stated in the document.

Huskey is upset that his ordeal has gone more than two years, without having his complaint resolved.

"I am happy about the decision, but in regards to the whole situation, happy isn't the word I would use," he said in an interview Wednesday.

He did not wish to comment further on the details of his complaint, however in a previous letter to Yellowknifer he stated that he felt he had been discriminated against by Diavik, explaining that they had dismissed him during a time when he had experienced "a family crisis."

According to Hoefer, Diavik does not plan to appeal the decision, and expects that the complaint will continue now that they have clarification of the director's decision. Boullard said that Huskey's case will now progress to a hearing held by one of the commission's adjudicators.

She acknowledged her position as one of the Human Rights Act's many levels of assessment.

"(The commission) is there for people who feel discriminated against," she said. "It's geared towards people who are vulnerable to discrimination."