Alberta Human Rights Information Service December 12, 2019

In this issue:
Human rights case law: Tribunal decisions
Commission news
HUMAN RIGHTS CASE LAW: TRIBUNAL DECISIONS

1. Recent tribunal decisions
You can read all tribunal decisions free of charge on the Canadian Legal Information Institute (CanLII) website.

2. Summary of recent tribunal decisions:

Boehnisch v Sunshine Village Corporation, 2019 AHRC 55 (Alberta Human Rights Tribunal, October 29, 2019)
Tribunal finds discrimination based on perceived physical disability
The complainant had worked as a ski patroller for the respondent, Sunshine Village, over a number of years. The complainant experienced some injuries over the years, which was not uncommon because her position was physically demanding and she was otherwise a very active person. When she began the 2013 ski season, the complainant testified that she was physically fit to work and had no injuries. However, the respondent asked for a meeting in which they offered her a sedentary position in dispatch. The respondent said that they were worried about the complainant injuring herself, and felt that she was not physically able to do her ski patrol position. The complainant enjoyed the active part of her position and did not want to work in a sedentary position. There was some discussion of a hybrid position where she would do some dispatch and some skiing. The complainant offered to take a physical demands test to demonstrate that she was able to do the ski patrol position. Later, the complainant was told that she did not need a physical demands analysis and she was only offered the sedentary dispatch position. The complainant declined the dispatch position. She filed a human rights complaint claiming discrimination in employment based on physical disability, age, and gender.

The Tribunal found that the complainant had made out a prima facie case of discrimination on the basis of a perceived physical disability. Chair Munn stated:

Sunshine led the complainant to believe that she would be re-hired into the Ski Patroller 3 position but unilaterally decided that the complainant was physically unable to perform the duties of her job.  Instead of allowing the complainant to provide evidence of fitness, the respondent simply offered to re-hire the complainant into a position that they knew she would not accept. 

The Tribunal ordered the respondent to pay general damages for pain and suffering of $25,000, plus one season of lots wages ($27,236) and costs on a party and party basis.
X v Martin Davies Professional Corporation, 2019 AHRC 56 (Alberta Human Rights Tribunal, November 19, 2019)
Professional medical opinion not reviewable unless shown to be arbitrary
X is a student at Mount Royal University (MRU). She identifies as having a mental disability. Dr. Martin Davies operates a family medicine practice out of the Health Services Clinic at MRU. X was Dr. Davies' patient from 2010, but in 2017 was discharged from his care. The discharge letter noted that Dr. Davies no longer felt that he was “the best individual to meet [her] complex medical needs.” X had a family physician in the community.

X filed a complaint with the Alberta Human Rights Commission alleging that the discharge and refusal to provide further medical care was discrimination based on mental disability. The respondent to the complaint, Dr. Davies, argued that the discharge was based upon his professional judgment and assessment. The Director of the Commission dismissed the complaint. X asked the Chief of the Commission and Tribunals (Chief) to review that decision under section 26 of the Alberta Human Rights Act.

The Chief reviewed the complaint, response, and Director’s decision. The Chief noted that the determinative factor given the facts of this case was that “a human rights commission or tribunal should not review the professional medical opinion of a physician, unless there is some evidence of arbitrariness.” The information supported that Dr. Davies’ opinion was professional, made in good faith, and not arbitrary. A review of the doctor’s clinical notes and communications with the complainant supported that the decision was a reasoned one taken after proper consideration. The Director’s decision to dismiss X’s complaint was upheld.

COMMISSION NEWS

1. Upcoming Human Rights in the Workplace Public Workshop

You can still register online for the following public workshop:

Date: March 4, 2020
Time: 9:00 a.m. to 4:00 p.m.
Location: Hotel Blackfoot, 5940 Blackfoot Trail SE, Calgary
You can read more about the human rights in the workplace public workshops.
2. Early success in Commission’s Case Inventory Resolution Project
The Commission is pleased to acknowledge the early success achieved in the Case Inventory Resolution Project. This project launched in April 2019 to deal with the case inventory of files more efficiently. The project started with approximately 1700 files. After seven months, 64% of those files are either being actively worked on or are already completed. This is a significant improvement in the number of complaints addressed as compared to the previous process. Initial results indicate that resolving the inventory of files, and current files brought up-to-date, will be achieved by March 31, 2021.
Pie chart showing Assigned 47%, Closed 17% and Awaiting Assignment 36%

All human rights complaints received before January 1, 2019 are being handled through a streamlined investigation or conciliation process. In conciliation, use of scheduled face-to-face meetings, both in-person and virtually, has improved our ability to provide meaningful resolutions for both Complainants and Respondents, with a resolution rate of nearly 75%. In investigation, quicker turnaround times for submissions have also increased the rate at which files can be processed.
The Commission has received positive feedback from parties and their legal counsel on the effectiveness of the procedures. Many comments also refer to the positive sense of reconciliation that parties can reach through the process.
3. Commission launches revisions to the Complaint Resolution Process
The Commission is launching revisions to its complaint resolution process. All human rights complaints received after January 1, 2019 will be assessed by a human rights officer to determine if the complaint will be resolved through an early resolution process, the Investigation Process, or the Conciliation Process. These revisions are being made to ensure that the large volume of complaints the Commission receives are resolved in a timely, effective, and fair manner. You can read more in the Notice of Revisions to the Human Rights Complaint Resolution Process.
4. Just released: Practice Directions regarding tribunal hearings
The Commission released two Practice Directions, advising the public of certain practices of the Alberta Human Rights Tribunal. The following Practice Directions come into effect January 1, 2020:
5. The Chief of the Commission and Tribunals' blog: Alberta Access to Justice Week
Alberta Access to Justice Week was held September 27 to October 5, 2019. Events and activities were offered across the province to highlight the importance of justice, the barriers to accessing it, and ways to break down the barriers. You can read Michael Gottheil's blog: We can run but we can’t hide: Access to justice and the delete button.
6. Human Rights Education and Multiculturalism Fund


As per the Government of Alberta’s Budget 2019, which was released on October 24, 2019, the Human Rights Education and Multiculturalism Fund is being dissolved and will no longer offer funding through the Commission’s Human Rights and Multiculturalism Grants program. Since the establishment of grant funding in 1988, recipients have worked to advance human rights and the principles of equality, multiculturalism, and inclusion in Alberta.

Even with these financial constraints, the Commission is committed to its mandate under the Alberta Human Rights Act to promote an environment where all Albertans can participate in and contribute to the cultural, social, economic, and political life of this province without discrimination. To meet this mandate, the Commission will be reviewing and re-evaluating how its education and engagement programs and services are delivered to the public. 
7. The Commission in the community
Commission representatives participated in a number of community events:
  • On October 19, 2019, Cam Stewart, Acting Manager of Communication, Education and Engagement, presented on a panel at the Workforce Forward Conference, discussing how Indigenous cultural learnings create a more inclusive and productive workplace. Other panelists included Colleen Verville, Shannon Monk, and Winona Lafreniere.
  • On October 30, 2019, Michael Gottheil, Chief of the Commission and Tribunals, co-presented with Vanja Spiric of John Humphries Centre for Peace, at the Council of Canadians with Disabilities event in Edmonton. This event was hosted by the Voices of Albertans with Disabilities at McEwan University to discuss how the Alberta Human Rights Act and the Convention on the Rights of Persons with Disabilities protect individuals and promote increased participation.
  • On November 18, 2019, Cam Stewart co-facilitated a workshop with Mohamed Rahall of the Pride Centre of Edmonton at the Ally Toolkit Conference in Calgary. The workshop, “Inclusive Workplaces,” provided attendees with tools and resources supporting LGBTQ2S+ in accessing supports and understanding accommodation issues.

8. New members of the Commission appointed
On September 25, 2019, the Lieutenant Governor in Council appointed two members of the Commission. The new members of the Commission are:

  • David Findlay, Q.C.
  • Patrizia Valle

You can read the biographies of the members of the Commission and the Order in Council.

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