TABLE OF CONTENTS
Page
I. FACTS:
A. Introduction 2
B. Background 2
C. Timeline 3
II. LEGISLATIVE AUTHORITY AND PROCEDURE:
1. Legislation and Bylaws 3
2. The Duty of the Investigator 3
III. ROLE OF THE CHIEF COMMISSIONER:
The Chief supported 3 major errors committed
by the investigator 6
A. As Gatekeeper 9
B. On this Judicial Review 9
lV. PRELIMINARY APPLICATIONS:
A. Admission of Fresh Evidence 10
B. Case law; HR Decisions based on protected grounds 11
C. Male Victims of Female Perpetrated Domestic Violence 17
D. The Return Is Not Complete 20
V. CONCLUSION: 21
VI. INDEX LIST 23
I. FACTS
A. Introduction
1. This is a judicial review pursuant to s. 35 of the Alberta Human Rights Act, RSA 2000, C. A-25.5, of a decision of the Honourable D.B. Mason, Chief of the Commission and Tribunals of the Alberta Human Rights Commission, to uphold the dismissal of a human rights complaint by Earl Silverman as an individual and in his capacity as an Officer with Family of Men Support Society.
B. Background
2. Earl Silverman as an individual and in his capacity as an Officer with Family of Men Support Society (“the Applicant”) filed a complaint on March 21, 2006 with the Commission (“the Complaint”) (Return - Tab R Volume 1 Tab 1) against the Minister Responsible for Children’s Services (“the Respondent”). The Applicant alleged discrimination in the area of statements, publications, notices, signs, [section 3(1) (a), (b)] and in the area of goods, services, accommodations and facilities [section 4 (a), (b)]), on the grounds of gender (male) and sexual orientation.
The Respondent filed a response (“The Response”) (Return - Tab R Volume 1 Tab 2).
3. An investigation was conducted, John Gabriele, the Investigator, and an investigation report recommending the Complaint be dismissed was completed on January 20, 2010
(Return - Tab R with attachments Volumes 1 and 2).
4. A delegated director, Pardeep Gundara (“the Director”), followed the recommendation of the human rights investigation officer, John Gabriele, and dismissed the Complaint on January 20, 2010.(Return – Tab Q).
5. The Applicant requested a review of the dismissal of the Complaint to the Chief of the Commission and Tribunals (“the Chief Commissioner”) (Return - Tab 0) and submitted significant additional information (Return Tab N; Separate Volumes 1-4).
6. Cathy Finlayson, Coordinator of Panels and Reviews, Office of the Chief Commissioner, sent a letter to the Respondent, copied to the Applicant with the Request for Review attached and information about what materials would be before the Chief Commissioner (Return — Tab M).
7. On May 6, 2010, Cathy Finlayson indicated that the file had been forwarded to the Chief Commissioner for review (Return — Tab G).
8. The Chief Commissioner reviewed the investigation report including the Complaint, the Response and attachment binders, and the further information and submissions provided by the Applicant and the Respondent. The Chief Commissioner upheld the dismissal of the Complaint on February 15, 2011 (Return — Tab B).
C. Timeline; #S2006/07/0105
2006 March 22; Human Rights Complaint filed in Calgary,
2006 August 17; Children Services response, Maria David-Evans, Deputy Minister,
2010 January 20; John Gabriele, the Investigator, dismissed the complaint,
2010 January 20; Pardeep Gundara, Southern Director, upheld the dismissal,
2010 February 18; Appeal of decision filed with Chief of Commission, D.B. Mason,
2010 May 6; Cathy Finlayson, forwarded Appeal to the Chief
2011 February 15; Chief decision to up hold dismissal,
2011 August 2; Application for Judicial Review [1101-10495],
2011 September 12; first appearance for JR; Justice Orb; Order to separate the JR from the introduction of Fresh Evidence Application,
2011 October 31; Justice Lutz; Order to hear the introduction of Fresh Evidence before the JR,
2011 December 21; Judicial Review before Justice B.L. Veldhuis;
a) Application for Judicial Review to dismiss Chief’s decision,
b) Application to Introduce Fresh Evidence,
c) Application for Disclosure
2012 March 13; Memorandum of Decision of the Hon. Justice Madam Justice B.L. Veldhuis.
II. LEGISLATIVE AUTHORITY AND PROCEDURE
A. Legislation and Bylaws
9. The substantive and procedural law in Alberta at the time the Applicant filed the Complaint was found in the Alberta Human Rights Citizenship and Multiculturalism Act, R.S.A. 2000 C.H-14 and the Bylaws. The Alberta Human Rights Act R.S.A. 2000 C.A-25.5 (“the AHR Act”), successor legislation, [Respondent’s Brief, October 31, 2010-Tab 1] came into force just prior to the investigation report being released. The relevant sections remain substantively and numerically the same in the new legislation.
10. Section 20(1) of the AHR Act permits a person who has reasonable grounds for believing the AHR Act had been contravened, to make a complaint in writing.
11. Section 21 prescribes the procedure to be followed when a complaint had been made to the Alberta Human Rights Commission (“the Commission”):
21(1) Where the Commission receives a complaint, the director shall, as soon as is reasonably possible, attempt to effect a settlement of the complaint by means of a conciliator or through the appointment of a person to investigate the complaint
(2) Where a conciliator is unable to effect a settlement of the complaint, the director may appoint a person to investigate the complaint.
Ø NOTE: No conciliation was offered by the Commission
B. The duty of the investigator
Bylaw’s section 6(1);
12. Investigation;
The duty of the investigator is to establish the facts and make recommendations to the regional manager as to whether or not there is merit to the complaint.
AHR Act Section 23(1), (2) prescribes the authority of the Investigation Officer;
13. Investigator’s powers;
23(1) For the purposes of an investigation under section 21, an investigator may do any or all of the following:
(b) make inquiries orally or in writing of any person who has or may have information relevant to the subject-matter of the investigation;
(c) demand the production for examination of records and document, including electronic records and documents, that are or may be relevant to the subject-matter of the investigation;
AHR Act Section 24(1) prescribes the judicial powers of the Investigation Officer;
14. Judge’s Order
24(1) Where a judge of the Provincial Court is satisfied on an investigator’s evidence under oath that there are reasonable grounds for an investigator to exercise a power under section 23(1) and the
(c) a person refuses or fails to answer inquires under section 23(1)b, or
(d) a person on whom a demand is made under section 23(1)(c) refuses or fails to comply with the demand or to permit the removal of a thing under section 23(1)(d).
15. The Chief supported 3 major errors committed by the investigator;
[Index 1]
i) June 2, 2008 the investigator requested data on proof of the conclusion raised by the Deputy Minister of Children’s Services in her response; the information was not provided nor did the investigator exhibit due diligence by further requesting the data and obtaining the data.
[Index 2]
ii) The original Human Rights Form filed March 21, 2006; Areas(s); goods, services, accommodations and facilities Grounds; gender-male; sexual orientation.
[Index 3]
iii) The Investigator Report did not investigate the file complaint in the area of goods, services, accommodations and facilities on the grounds of gender-male; sexual orientation but concluded “…that there is no reasonable basis to proceed on the allegations that the shelter funding practices discriminate.”
NOTE: Not a single page was dedicated in the investigation report to the filed protected area or grounds. The Investigator’s Report is not congruent with the filed area and grounds. It is a comparison of “apples” to “dump trucks”, and in essence voids the Chief’s decision to confirm the report.
[Index 4]
16. The Alberta Human Rights Act is very explicit in determining the protected areas and grounds on which a Human Right Complaint can be filed; [section 4 (a), (b)], the Human Rights Complaint Form and Guide Section “D”; Identify the area in which the discrimination took place and Section “E”; Identify the grounds of discrimination.
[Index 5]
17. There are 5 areas and 13 grounds on which a Human Right can be filed as demonstrated by the “Areas and grounds protected Information Sheet” as supplied by AHR:
i) There is not a listing for “other”,
ii) There is not a listing for “funding”,
iii) There is not a listing for “practices”,
iv) There is not a listing for “shelter funding practices”.
Ø Callan v. Suncor Inc., 2006 ABCA 15
[14] Subsequent to the rendering of the decision under appeal, this Court gave two companion decisions on the same topic: Economic Development Edmonton v. Wong, 2005 ABCA 278 (CanLII), 2005 ABCA 278, and Economic Development Edmonton v. Baah, 2005 ABCA 279 (CanLII), 2005 ABCA 279. These two decisions obviously were not available to the learned Chambers Judge. In Wong at paragraph 16 this Court stated:
The Chief Commissioner fulfils a screening role. He does not determine whether a complaint is made out. The Chief Commissioner is called upon to consider the evidence gathered by the investigator in the context of deciding whether there is a reasonable basis in the evidence for proceeding to the next stage. In my opinion, it follows that if the Chief Commissioner is to properly discharge his duty, he must evaluate the quality of the evidence gathered by the investigator.
Ø Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 SCR 382
[Page 388]
...There can be no doubt that a statutory tribunal cannot, with impunity, ignore the requisites of its constituent statute and decide questions any way it sees fit. If it does so, it acts beyond the ambit of its powers, fails to discharge its public duty and departs from legally permissible conduct. Judicial intervention is then not only permissible but requisite in the public interest. But if the Board acts in good faith and its decision can be rationally supported on a construction which the relevant legislation may reasonably be considered to bear, then the Court will not intervene.
A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority to enter upon an inquiry but, in the course of that inquiry, do something which takes the exercise of its powers outside the protection of the privative or preclusive clause. Examples of this type of error would include acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting provisions of the Act so as to embark on an inquiry or answer a question not remitted to it. If, on the other hand, a proper question is submitted to the tribunal, that is to say, one within its jurisdiction, and if it answers that question without any errors of the nature of those to which I have alluded, then it is entitled to answer the question rightly or wrongly and that decision will not be subject to review by the Courts: Anisminic, Ltd. v. Foreign Compensation Commission et al.[4]; Noranda Mines Ltd. v. The Queen et al., supra; Farrell et al. v. Workmen’s Compensation Board, supra; R. v. Quebec Labour Relations Board, Ex p. Komo Construction Inc.[5]
Ø NOTE: This specifies the necessity of adhering to the mandate of the Act and stays within the parameters of the set out areas and grounds of the complaint and not deviate from the topic.
18. The Director’s powers are prescribed under s. 22(1). The Director may at any time:
(a) dismiss a complaint if the director considers the complaint is without merit,
(b) discontinue proceedings if the director is of the opinion that the complainant has refused to accept a proposed settlement that is fair and reasonable, or;
(c) report to the Chief of the Commission and Tribunals that the parties are unable to settle the complaint
Ø NOTE: No conciliation was offered by the Commission
19. A request to review the Director’s decision by the Chief Commissioner is provided in s. 26:
26(1) The complainant may, not later than 30 days after receiving notice of dismissal of the complaint or notice of discontinuance under section 22, by notice in writing to the Commission request a review of the director ‘s decision by the Chief of the Commission and Tribunals.
The authority for the Chief Commissioner to review the Director’s decision is provided under s. 26(3):
26(3) The Chief of the Commission and Tribunal shall
(a) review the record of the director ‘s decision and decide whether;
(i) the complaint should have been dismissed, or
(ii) the proposed settlement was fair and reasonable, as the case may be, and
(b) forthwith serve notice of the decision of the Chief of the Commission and Tribunal on the complainant and the person against whom the complaint was made.
20. Section 35 provides for a judicial review of the decision of the Chief Commissioner:
35. A decision of the Chief of the Commission and Tribunals or another member of the Commission under section 26 (3)(a) is final and binding on the parties, subject to a party ‘s right to judicial review of the decision.
III. ROLE OF THE CHIEF COMMISSIONER
A. As Gatekeeper
21. The gatekeeping role of the Chief Commissioner pursuant to s. 26 of the AHR Act ensures complaints are not forwarded to a hearing unless there is a reasonable basis in the evidence to proceed. In performing his screening function, the Chief Commissioner may make threshold assessments of credibility, and consider new evidence.
Ø
Ø NOTE: There is a reasonable prospect of success if the complaint is presented to the tribunal as all the information is presented and evaluated.