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Visit the Canadian Legal Information Institute (CanLII) website to access all Tribunal decisions, free of charge.
View the schedule of upcoming Tribunal hearings.
The complainant filed a judicial review of a decision dismissing his appeal to the Tribunal. The dismissal decision was dated July 6, 2022. Under the Rules of Court, his judicial review could be filed up to six months after the decision, making it due by January 6, 2023. The complainant sent it to the Court on January 3, 2023, but because digital filing takes a few days, he did not receive the filed version until January 9, 2023. He served the Originating Application for judicial review on the Alberta Human Rights Commission two weeks after the deadline for service under the Rules of Court. The respondent organization argued that the judicial review should be dismissed because it was out of time. The Court of King's Bench found that Rule 3.15 was to be strictly applied and the court was unable to extend the time to file and serve documents for a judicial review. As a result, the complainant's judicial review of the Tribunal's decision was out of time.
WW v Alberta, 2023 ABKB 340 (Alberta Human Rights Tribunal June 5, 2023)
The complainant was a teacher who went on medical leave for a mental disability after experiencing workplace harassment. The harassment. The harassment was time-barred by the limitation period in section 20 of the Alberta Human Rights Act and the only relevant time for this complaint was while the complainant was on medical leave. The respondent approved her medial leave and accepted her medical notes, but the complainant alleged that how the employer communicated with her caused further psychological injury. In particular, the complainant alleged that a single phone call with an ability consultant and a later meeting, called while the complainant was on sick leave, were harassment. The Tribunal found that the actions were not harassment and did not otherwise constitute an adverse impact or treatment under the second stage of the Moore test.
The Tribunal considered the scope and nature of the term "adverse impact." The complainant alleged she was a "thin skull" complainant and relied on civil litigation authorities about causation. Causation here was not relevant and did not meet the test for prima facie discrimination.
Mitchell v Edmonton Public School Board 2023 AHRC 16 (Alberta Human Rights Tribunal, February 2, 2023)
The complainant made broad and serious allegations of bad faith for which there was no existing supporting information in the record. He requested all records, emails and internal and external communications about the respondent's attempts to serve investment clients he had served during his employment, both before and after his termination. The Tribunal outlined a non-exhaustive list of factors when considering production orders. The requested information must:
The production request in Melnyk did not meet this threshold because it was overly broad, was likely to cause prejudice to the respondent because of the onerous nature of the search, and appeared to be based on speculation. There was also an issue about prejudice to third parties (because of the records related to third-party financial interest) and prejudice to the process (because the far-reaching search was likely to further delay the proceedings.)
Melnyk v. RBC Dominion Securities Inc., 2023 AHRC 5 (Alberta Human Rights Tribunal, January 11, 2023)
The complainant leased the basement suite of a rental property in Edmonton, owned by the respondent. The complainant alleged that the respondent discriminated against her when he refused to accommodate her mental and physical disabilities by failing to properly deal with her noise complaints and when he effectively ended her tenancy by raising her rent to a rate that he knew she could not afford. The respondent denied that he discriminated against the complainant. He asserted that he was not aware of any connection between the complainant's noise complaints and her disabilities. The respondent further asserted that the complainant's disabilities were not a factor in his decision to raise the complainants rent.
The central issue at the hearing was whether the respondent had a duty to inquire how the complainant's disabilities were being affected. The Chair found that by not conducting any real investigation into the complainant's extensive noise complaints, the respondent failed to demonstrate that he accommodated the complainant's disabilities to the point of undue hardship. The complainant was awarded the sum of $10,000 in general damages for injury to dignity.
Stewart v Jordan, 2023 AHRC 4 (Alberta Human Rights Tribunal, January 11, 2023)
The complainant alleged that the respondent company's owner sexually harassed her when they were on a business trip. The owner insisted on booking a hotel suite for their stay. He slept in the master bedroom and she was given the sofa bed in the main area. The complainant alleged that she went for a nap and woke up to find the owner grabbing her breasts and hip. She also alleged that the workplace was a poisoned work environment, and she was called offensive names behind her back. The owner denied these allegations. Shortly after the business trip, the complainant was fired, citing poor performance.
Two days after termination, the respondent discovered that the complainant had stolen some money. The complainant said that the money had been approved as vacation pay, but this was found to be untrue.
The question at the hearing was whether the complainant had been terminated for cause, or for complaining about sexual harassment. Chair Ringseis noted that the owner admitted that the complainant had accused him of inappropriate sexual touching, while on the ride home from the business trip.
The Chair found:
 The evidence clearly supports that the timeline of events connects the accusation of sexual harassment to the complainant's termination. The sexual harassment occurred, the complainant verbally accused the Owner of the unwelcome touching, the complainant then went on holidays and the very day she returned, she was terminated with no reasons provided. Then two days after the termination, the Owner's Initial Lawyer provided the reason of stealing money and the sudden declaration of poor performance.
The complainant was awarded 30 days of lost wages and $50,000 in damages for pain and suffering. The company was ordered to provide training to all employees within 60 days of the order.
McCharles v Jaco Line Contractors Ltd., 2022 AHRC 115 (Alberta Human Rights Tribunal, October 11, 2022)
The complainant alleged that he had experienced racial bias at work and had been targeted because of his race when the respondent took certain actions. The complainant's matter was dismissed and he applied for judicial review by the Court of King's Bench.
The complainant argued that the decision was unreasonable because it failed to consider his lived experience as a Black person, and in particular did not consider microaggressions that were the basis for his complaint. Mah, J. considered the term "microaggression" and noted that even before this term hit the lexicon, racial bias and stereotyping were considered in human rights cases. He stated that "at an institutional level," Members of the Commission "are aware of the insidious nature of routine and everyday discrimination, even in its microaggression form, and of its effects upon victims."
The Tribunal's decision was reasonable and the Court upheld it.
Complaint upheld based on family status and mental disability.
Wint v Alberta (Human Rights Commission), 2022 ABQB 87 (Alberta Court of Queen's Bench, January 31, 2022)
The complainant worked for the respondent from 2014 to 2017, primarily in an administrative capacity. The complainant's common-law husband was one of the owners of the company. He quit in April 2017 and the remaining owners informed the complainant that she could no longer do her administrative role because of the "conflict of interest." Instead, they offered her full-time fieldwork. The complainant provided a medical note prescribing medical leave due to stress and anxiety. While on medical leave, she continued to work part-time at her second job as a waitress. Shortly thereafter, the respondent terminated the complainant's employment "for cause."
The Tribunal found that the complainant's family/marital status was a factor in the removal of her administrative duties. The reason for the removal was the "conflict of interest" caused by her relationship with her husband. The respondent made no effort to put measures in place to ensure confidentiality or address any concerns they would have had with continuing the complainant's employment.
The Tribunal also found that the complainant's mental disability was a factor in her dismissal for cause. The respondent's evidence was that they believed the complainant had been dishonest about needing medical leave because she "seemed fine." By taking their stereotypical view of what mental disability looked like into account in deciding whether she had been honest with them, they made her disability a factor in the decision to dismiss. Tribunal Chair Scott awarded $30,000 as general damages, plus two weeks' lost wages.
Fisher (Marshall) v Devolbren Property Services Inc., 2022 AHRC 67 (Alberta Human Rights Tribunal, June 14, 2022)
The complainant was a corporate recruiter who entered into an Independent Contractor Agreement with the respondent, a company that provided engineering services to its clientele.
In this case, the complainant originally provided services to the respondent through a third-party agency. The respondent liked her work and decided to retain her services directly. Unlike Lockerbie & Hole Industrial Inc. v Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3, the respondent was not hiring a corporation to get the job done by whatever means necessary; it was her personal service that was retained. For the purposes of the Alberta Human Rights Act, it was held that the respondent was the complainant's employer.
The complainant worked full-time for the respondent. While in theory the complainant's corporation could have taken on other work, the corporation was a one-person company and the workload for the respondent was heavy – so heavy that she engaged a sub-contractor. The complainant was wholly dependent upon the respondent for her income. For much of the time, there were not enough hours in a day for her to earn an income elsewhere. Moreover, when the complainant did ask about taking on other work, Emerson's Director of Operations told her that any other work would be subject to his approval.
The Tribunal found that the complainant was subject to sexual harassment and that the sexual harassment was a factor in the timing and the manner of her termination, but that the complainant's employment would have occurred regardless of the sexual harassment. Relying on Janzen v Platy Enterprises Ltd., 1989 CanLII 97 (SCC),  1 SCR 1252, the Tribunal stated that if a person is subjected to sexual harassment, this would not only constitute an adverse impact, but discrimination would also be made out.
The Tribunal accepted the complainant's evidence that her manager made comments and jokes of a sexual nature, that he sent her a sexually explicit video, and that he sent her email jokes of a sexual nature. The complainant's manager referred to her as a credenza and this related to Emerson's control over the complainant's tenure. Her manager commented on her appearance, made suggestive comments about other women, and made intrusive enquiries about her personal life. Her manager told her that he wanted to have an affair.
The complainant alleged that the respondent retaliated against her. The Tribunal held that retaliation, within the meaning of section 10 of the Act, did not occur.
The Tribunal found that the discriminatory conduct had a profound negative effect on the complainant. It significantly affected her psychological health and prevented her from engaging in meaningful employment. Moreover, when the complainant told management of her concerns, the employer's response was dismissive. The investigation was seriously flawed. The Tribunal awarded $50,000 in general damages, plus lost wages.
The Tribunal declined to award a claim for legal fees, since this would be akin to awarding costs. In the absence of improper conduct in the litigation of the complaint, costs were not warranted.
Yaschuk v Emerson Electric Canada Limited, 2022 AHRC 62 (Alberta Human Rights Tribunal, May 27, 2022)
The complainant alleged that her supervisor/employer sexually harassed her at the respondent's liquor store. Before the complaint proceeded to a hearing to decide if the allegations had merit, the liquor store was struck from the corporate registry. The alleged harasser's wife owned the store. He and his wife owned a number of stores and supervised staff. The Director of the Commission applied to have the husband and wife added to the complaint as personal respondents because the claim could not proceed against the store or result in a remedy, if valid.
The Tribunal considered the matter, applying the two-part test from Sigrist and Carson v London District Catholic School Board et al., 2008 HRTO 14: 1) are there facts alleged that, if proven, could support a violation of the complainant's rights, and 2) would adding the respondents cause substantial prejudice to their ability to answer and defend the allegations?
The Tribunal found that there were facts on the record to support adding the personal respondents and that it would not cause substantial prejudice to do so. The wife was the storeowner and the husband was the alleged perpetrator and the complaint's de facto employer. Without naming them, the complainant would be unable to get a remedy, should the Tribunal find that the allegations against the husband were proven.
Pujji v 1819010 Alberta Ltd o/a Liquor King Spruce Grove, 2022 AHRC 14 (Alberta Human Rights Tribunal, January 24, 2022)
Personal respondent named where they are a shareholder of the corporation:
Crawford v Schur Trucking Ltd., 2022 AHRC 25 (Alberta Human Rights Tribunal, February 17, 2022)
Application denied to add a personal respondent where the corporate respondent is operational:
McCharles v Jaco Line Contractors Ltd., 2022 AHRC 15 (Alberta Human Rights Tribunal, January 25, 2022)
Insufficient service to notify a personal respondent that they may be named in a complaint:
Shkreli v Future Design Flooring Ltd., 2022 AHRC 10 (Alberta Human Rights Tribunal, January 19, 2022)
The complainant discovered she was pregnant and that there were some complications, which would require modifications to her work as an Instructor at the respondent trade college. The complainant met with the department head and outlined that she needed accommodation for a medical disability and would need to have a reduced workload, change in work hours, and lifting restrictions. The department head agreed to meet again the next morning to continue the conversation. When the complainant arrived at the meeting, she was dismissed.
The Chair found that the request for accommodation was related to the ground of gender (pregnancy), which triggered the termination. The respondent tried to have the complaint thrown out on the technical argument that they were not informed that the complainant was pregnant. The Chair found that the respondent could not "hide behind its own inaction" and should have inquired into the nature of the medical disability.
The respondent has a procedural, as well as a substantive, duty to accommodate. While there is some jurisprudence to support that there is no independent procedural duty to accommodate, the respondent usually must take certain steps to provide substantive accommodation. The respondent knew what accommodations the complainant needed in general, but did not explore how they might be implemented or ask the complainant for further information.
The complainant was awarded $35,000 in damages and seven weeks in lost wages. The complainant asked for solicitor client costs, but none were awarded. Costs against a respondent are generally only awarded where there is improper conduct.
Turnbull v Edmonton Pipe Trades Educational Fund o/a Alberta Pipe Trade College, 2021 AHRC 172 (Alberta Human Rights Tribunal, October 4, 2021)
The complainant is a teacher with Electro Hypersensitivity Syndrome (EHS). She requested that the school she works at remove or disable the Wi-Fi router and other electronic equipment emitting radio frequency (RF) and electro-magnetic (EM) radiation located in her classroom. The School Board agreed to replace the complainant's microphone with a lower frequency plug-in style, but said that it could not remove the router from the classroom in which the complainant taught. Disabling the router in the complainant's classroom would impact the Wi-Fi coverage in the rest of the school. The school where the complainant worked served students with disabilities, including deaf students. Many of the educational supports for students, teachers, and educational professionals required access to the Internet. The Director of the Commission dismissed the complaint and the complainant appealed that decision to the Chief of the Commission and Tribunals.
The Chief considered the information, including a World Health Organization publication on EHS that said that while the symptoms of EHS are real, there is no scientific basis to link EHS symptoms with RF and EM. A Health Canada publication found that there was no scientific basis to connect issues from RF at frequencies below a certain range. The School District had confirmed that the RF and EM emissions were below 1% of those guidelines. The Chief noted that these reports supported that there was insufficient information to support a nexus between the RF and EM fields the Wi-Fi routers produced and the symptoms reported by individuals with EHS. The complainant did not establish a link between her physical symptoms and the alleged adverse treatment. As a result, the respondent's duty to accommodate was not engaged.
The Chief noted the significant effort the respondent engaged in to determine the best course of action to take to assist with the complainant's EHS. After exploring many sources, the School Board found that there was no information to support that removing the Wi-Fi router from the complainant's classroom would help with her symptoms.
The information did not support the accommodation, not because it was an undue hardship, but because the evidence did not support the accommodation requested. For the above reasons, the Director's decision was upheld and the complaint was dismissed.
Kliparchuk v Edmonton Public School Board, 2021 AHRC 178 (Alberta Human Rights Tribunal, October 18, 2021)
This was a complaint based on tenancy, race, ancestry, religious belief, and colour. The complainant had carriage of the matter in front of the Tribunal. The parties attended a pre-hearing and were provided dates for hearing submissions and the hearing. The complainant did not provide her submissions by the due date. The complainant did not respond to the Registrar nor provide hearing submissions. On the hearing date, the complainant did not attend. The complainant was contacted by the Registrar, but said she was in a car with other people and had not had a chance to look at her emails, and then the line went dead. The Chair considered the respondent's application to dismiss the complaint. There is significant time and cost placed on the respondent to answer a complaint. The complainant has a responsibility to participate in the legal process to provide proof in support of their complaint. The Chair found that the complainant had not acted diligently, did not file her hearing submissions, made no attempt to join the Zoom hearing, and when the Registrar contacted her, did not explain why she was unable to stay in the hearing. The complaint was dismissed.
Abel v Mwenebembe and Kaseka, 2021 AHRC 149 (Alberta Human Rights Tribunal, July 30, 202
Two complainants made separate complaints alleging discrimination in services when they were each not permitted to enter a store without a mask. Both noted that they had a disability preventing them from wearing a face mask. The stores in question, Peoples Jewellers and Costco, offered alternatives including free delivery, online shopping, and curbside pickup. Costco also allowed people to wear face shields instead of masks. The Director dismissed both complaints and each complainant individually filed an appeal under section 26 to the Chief of the Commission and Tribunals to review the Director's decision. The Chief cited the Meiorin case, where the Court found that a respondent may justify a rule or standard, which is discriminatory on its face, by showing that: the policy was introduced for a valid and legitimate business purpose, the policy was adopted in good faith, and there were not alternatives available to accommodate those negatively affected without incurring undue hardship.
In this case, the face mask policies were developed using public health guidelines supported by scientific data. The complainants did not provide any medical or other information to counter the public health restrictions. Human rights law requires a balancing of rights and an obligation of a service provider to accommodate adverse effects to the point of undue hardship. Both stores developed comprehensive policies, in good faith, which offered other methods of shopping. The complainants did not provide sufficient information to challenge the mask policies such that there was a reasonable basis to proceed to a Tribunal hearing. The Director's decisions in these matters were upheld.
Beaudin v Zale Canada Co. o/a Peoples Jewellers, 2021 AHRC 155 (Alberta Human Rights Tribunal, August 16, 2021)
Szeles v Costco Wholesale Canada Ltd., 2021 AHRC 154 (Alberta Human Rights Tribunal, August 16, 2021)
The complainant, who is an Indigenous woman, worked as a Registered Nurse at a provincial correctional facility. She was subjected to threats and abuse by other employees after attending a demonstration protesting systemic racism. She was also removed from her position, placed on temporary administrative leave, and later given alternate work that the respondent said would ensure her safety. She filed a human rights complaint, but it was dismissed by the Director of the Commission.
The complainant filed a request for review asking the Tribunal to review the Director's decision and decide if the complaint should have been dismissed or referred to the Tribunal for a hearing. Firstly, the respondent argued that a request to add a respondent to the complaint set a fresh time limit, resulting in the complaint being out of time. The Chief of the Commission and Tribunals found that this argument failed to recognize the difference between the commencement of a proceeding, subject to the one-year time limitation, and an amendment to an existing claim. Secondly, the respondent claimed that race did not play a role in its decision to move the complainant, or in the threats the complainant was subjected to at work. On that point, the Chief said:
"I need not decide whether an Indigenous woman who is called a racist and subjected to threats and abuse by white colleagues in her workplace, on the basis that she was seen protesting historic bias and racism against Indigenous people, itself constitutes workplace racial harassment. For the purposes of this review, it is sufficient to observe that the respondent JSG's position is flawed in a fundamental respect. When assessing whether there is connection between a prohibited ground of discrimination and adverse treatment, context must be considered. It is well established that discrimination, particularly racial discrimination, is rarely practiced overtly. It will most often be proven through circumstantial evidence and inference."
Finally, the respondent argued that it took the threats seriously and moved the complainant to a different area to protect her. The respondent told employees to cease distributing images of the complainant at the rally and it conducted a threat assessment. The Chief found that there was no dispute that the complainant was a victim of threats in the workplace. However, there was conflicting submissions on whether the respondent's reaction was sufficient. Given the role of a section 26 request for review (to decide whether there is a reasonable basis to send the complaint forward), the Chief overturned the Director's decision and sent the complaint to the Tribunal for a full hearing of the issues.
The case was settled before the Tribunal hearing date.
Ledger v Alberta Health Services and Alberta Justice and Solicitor General (JSG), 2021 AHRC 95 (Alberta Human Rights Tribunal, April 23, 2021)
The complainant, Kvaska, worked for Gateway Motors Ltd. as a car salesperson. There was evidence that seven months into his employment he started drinking heavily. Many times, his spouse said she would drive him to work because he was unable to function. She testified that on these days, he was visibly drunk and smelled of alcohol. At one point, the finance manager warned the complainant that the owner would not put up with drinking on the job.
The complainant realized he needed help. He asked the sales manager about what would happen if he needed a medical leave of absence, and he requested disability benefit forms from human resources, but he would not say what they were for. He then saw his doctor and sought a treatment program.
Before finding help, the complainant attended work on a Saturday very drunk. He was belligerent in a staff meeting. The general manager noted how severely intoxicated he was and later told him not to come into work on Monday. The respondent did not communicate further with the complainant until he showed up at work on Wednesday and discovered he had been terminated. He immediately told the manager about his alcohol addiction and asked if he could at least stay on company health benefits while in rehabilitation. The respondent refused his request.
The evidence supported that the complainant had an addiction. It was undisputed that he was terminated for showing up drunk, but the respondent argued that addiction, as a disability, was not a factor in the termination. They argued that on that day, prescription medicine was the problem and that, nevertheless, Gateway Motors Ltd. staff were unaware of the complainant's alcohol addiction. Chair Oviatt found that there was evidence the respondent knew that the complainant was drinking at work. The employer knew or ought to have known about the complainant's addiction, but took no steps to learn more or accommodate him. The Tribunal awarded Kvaska $30,000 in damages for injury to dignity, plus lost wages and benefits. The case reviews the jurisprudence on the factors analyzed in damage assessment.
Kvaska v Gateway Motors (Edmonton) Ltd., 2020 AHRC 94 (Alberta Human Rights Tribunal, December 14, 2020)
Hannah v Tolko Industries Ltd., 2021 AHRC 48 (Alberta Human Rights Tribunal, February 22, 2021) where the Chief of the Commission and Tribunals, Michael Gottheil, upheld the complainant's appeal and the complaint was referred to the Tribunal. In this case, an employment offer was made to the complainant, Clayton Hannah, upon completion of a drug screening test. Before the test, Hannah admitted to using cannabis for an illness and because of that admission, the employer requested further testing. However, the employer said that it rescinded the offer before the additional tests were completed because of the tone of Hannah's emails. The complaint was referred to the Tribunal to assess whether the employer was justified in putting the offer of employment on hold and later withdrawing it.
Bird v Lafarge Canada Inc., 2021 AHRC 50 (Alberta Human Rights Tribunal, February 23, 2021) where the complainant's appeal to the Chief was dismissed by Tribunal Member Ringseis. In this case, the complainant admitted to having a prescription for cannabis, but only after he was in an accident with a company vehicle. The employer terminated the complainant for failure to disclose his cannabis use under their drug and alcohol policy. The information in the complaint supported that the employer had no knowledge of the complainant's disability, prescription, or need for accommodation.
Michaela Boehnisch was a ski patroller for Sunshine Village from 1991 to 2002. Each year, she worked the ski season and was then laid off during the summer, to be re-hired the following season.
In 2013, Sunshine Village began to voice concerns about her physical ability to do the job. From their perspective, she had had a number of injuries and they were concerned she could not fulfill the role as a ski patroller. There was some discussion about potentially creating a job that was a combination of an office job and working on the ski hill, and Boehnisch offered to take a physical demands assessment to prove that she was physically able to continue as a ski patroller. However, the evidence at the hearing supported that Sunshine Village did not follow up on arrangements for an assessment to be done for the 2013 ski season. They offered her a job in dispatch and said that a physical demands assessment was not necessary for that position. When Boehnisch refused to accept that position, Sunshine Village indicated that her employment had come to an end.
The Tribunal found that Sunshine Village discriminated against Boehnisch based on a physical disability, but denied her claim that it was also related to her age or gender. The Tribunal also found that Sunshine Village did not properly assess her fitness for work before offering an accommodated position in another area. Boehnisch was awarded $25,000 in general damages plus lost wages for two ski seasons. Sunshine Village appealed this decision to the Court of Queen's Bench, which dismissed the appeal.
Boehnisch v Sunshine Village Corporation, 2019 AHRC 55 (Alberta Human Rights Tribunal, October 29, 2019)
Sunshine Village Corporation v Boehnisch, 2020 ABQB 692 (Court of Queen's Bench of Alberta, November 10, 2020)
The complainants were two students who attended the respondent school, Webber Academy. The students, who believed in Sunni Islam, requested to pray during school hours for five to eight minutes. The prayer involved standing, bowing, and kneeling. The students were initially permitted a place to pray, but were later prohibited to do so by the school.
The Chair found that the students held a genuine religious belief and that they were denied a quiet private space, customarily available to the rest of the student body, as well as denied re-enrollment for the following school year. The students' religious belief was a factor in these denials.
The Chair considered the school's argument that the students' request violated the school's right to be free from religion. The Human Rights Tribunal cannot make findings of constitutionality of legislation, but does have a duty to take Charter values into account. The school is non-denominational and has no religious affiliation, with members of the school community wanting it to remain that way. However, in this case, the students did not want to perform their religion publicly, but requested a quiet private space to pray. The evidence did not support that this request would infringe on the school and the community's belief that the school was secular. Therefore, there was no infringement on the school's right to be a non-denominational secular institution.
The students were awarded $18,000 each for pain and suffering. Webber Academy has appealed the ruling to the Court of Queen's Bench.
Amir and Saddique v Webber Academy Foundation, 2020 AHRC 58 (Alberta Human Rights Tribunal, August 6, 2020)
An employee made a complaint that his disability was a factor in his termination. The complaint was referred to the Alberta Human Rights Tribunal for a hearing. Currently residing in Saskatchewan, the complainant requested that he testify via video conference so that he would not have to travel to Alberta. Alberta and Saskatchewan are currently discouraging out-of-province travel due to COVID-19. The respondent opposed the application, arguing that credibility was at issue in the case and that in-person cross-examination would be more fruitful.
The Tribunal Chair considered the application for video conference testimony in light of the principles of natural justice. The events of the complaint had occurred six years ago and there is no indication from the provinces when COVID-19 travel recommendations would be relaxed. While the respondent had a right to cross-examination of the witness, the Chair was mindful of cases that had rejected the idea that witness credibility cannot be sufficiently tested on a video conference. Video conference testimony does not deny the Chair the ability to assess the credibility factors that are typically considered in a hearing. The Chair found that the Tribunal's use of technology and the Tribunal Protocol for Virtual Hearings sufficiently addressed these issues. The hearing will proceed as scheduled with the complainant attending via video conference.
Trudeau v ConSun Contracting Ltd., 2020 AHRC 63 (Alberta Human Rights Tribunal, September 9, 2020)
The complainant worked as a firefighter. He alleged that the pension plan that had been incorporated into the Collective Agreement between the City of Calgary and the Union violated his rights by requiring all firefighters to retire at age 60. The respondent argued that mandatory retirement was necessary because of the physical demands of the position. However, the respondent said that the real issue before the Tribunal was not the analysis of whether the mandatory retirement provisions were non-discriminatory, but whether the pension plan itself was bona fides. A bona fide pension plan was exempted from review under section 7(2) of the Alberta Human Rights Act.
To meet this test, the Supreme Court of Canada (SCC) in Potash had ruled that an employer must show that the pension plan is legitimate, adopted in good faith, and not aimed at defeating protected rights. Chair Gottheil considered whether he could review the validity of the component parts of the pension plan. He was referred to cases in other jurisdictions where the court had attempted to depart from the majority rule in Potash. However, the Chair found that Potash had been followed in Alberta and was clear that an examination of the specific mandatory retirement provisions was not part of the bona fide analysis as long as the pension plan met the Potash test. The majority in Potash had found that as long as the pension plan satisfied the test as a whole, the component parts were exempt from review.
Chair Gottheil reviewed the pension plan and found that the City could rely on the exemption, as the pension plan met the test and was exempt under section 7(2) of the Act. The SCC was clear that it was not appropriate for the mandatory retirement plan itself to be reviewed. The complaint against the City was dismissed. However, the Chair asked for further submissions from the parties on whether the Union was also exempt from a claim of discrimination under the Act.
Aziz v Calgary Firefighters Association, 2020 AHRC 40 (Alberta Human Rights Tribunal, May 29, 2020)