Efforts continue to block complaint by former Crown CEO over alleged partisan dismissal

The provincial government is arguing legislation prevents a judge or administrative body from challenging the firing of a defunct Crown agency's former CEO.

A decision by the New Brunswick Human Rights Commission to forward Margaret-Ann Blaney's complaint about being fired to a labour board inquiry should be quashed, said Keith Mullin, a lawyer arguing on behalf of the province in its application to prevent the complaint from going any further.

Mullin argued existing legislation prevents any judge or administrative body from challenging the firing of Blaney from her former role as CEO of Energy Efficiency New Brunswick.

"[The commission] adopted a rationale that this is an employment situation therefore giving them jurisdiction over everything. That's not the issue," said Mullin, arguing before Court of King's Bench Justice Thomas Christie on Wednesday.

"There's certainly an employment contract... but that doesn't open up to say that this is now a jurisdiction for the commission in an employment setting. This is legislation."

Blaney appointed in 2012 by PC government

The legislation at the centre of the province's argument is the Act to Dissolve the Energy Efficiency and Conservation Agency of New Brunswick.

Enacted in 2015 by the government of then-premier Brian Gallant, the act saw the former Crown agency folded into N.B. Power, along with the firing of Blaney from her role as CEO and president.

The bill also blocked "any court or administrative body" from hearing a challenge to the dissolution or firing.

Blaney, a former Progressive Conservative cabinet minister, was appointed to the role in 2012 by then-premier David Alward, triggering a political firestorm, with opposition parties calling it patronage and Blaine Higgs, finance minister at the time, refusing to publicly endorse the decision.

Upon her firing from the role, she filed a complaint with the New Brunswick Human Rights Commission, arguing the Liberal government got rid of the organization and her job because of her partisan PC affiliation.

The province had already applied to stop the commission from investigating the case, however a judge ruled last March that it could continue its investigation.

Then in September 2021, the New Brunswick Human Rights Commission forwarded Blaney's complaint to the New Brunswick Labour and Employment Board for an inquiry by the quasi-judicial tribunal.

Lise Landry, CEO of the New Brunswick Labour and Employment Board, confirmed she received the complaint regarding Blaney's dismissal from the commission in September 2021. She said the board is waiting for a decision on the province's application before proceeding further on an inquiry.

Commission not included in legislation: lawyer

While the legislation that got Blaney fired also blocked any "administrative body" from hearing a challenge to it, the bill did not explicitly bar the Human Rights Commission from weighing in on the matter, said Christopher Isnor, acting as an agent for Blaney's lawyer.

"One of the flaws we're discussing about the Act to Dissolve is it doesn't specifically mention the Human Rights Commission and I appreciate it's broader than that, it mentions administrative tribunals," Isnor said.

"But I think the flaw there is that the case law, and the quasi-constitutional status of the Human Rights Act, puts the Human Rights Commission above other tribunals in the sense that if we're talking about removing an individual's human rights, then the legislature has an opportunity when drafting legislation to be specific."

Isnor also argued the commission has jurisdiction in the case as the legislation was written in a way that specifically targeted her, infringing on her human rights.

"This is, in our submissions, a bill of pains and penalties. This was an act that was targeting Ms. Blaney and her name was not mentioned in the act, but her position of president was particularly targeted and removed her from any remedies that she would have," Isnor said.

Isnor also pointed out the provisions of the bill applied retroactively to Oct. 16, 2014, two days before Blaney was informed she'd been fired. He argued, therefore, Blaney still has the right to seek remedies for her dismissal.

Justice Christie thanked the lawyers for their submissions and said he'd reserve his decision for a later date.