Brewer v. Fraser Milner Casgrain LLP,

• Judge: Côté, Conrad and Paperny, JJ.A.
• Neutral Citation: 2008 ABCA 160
• Citation: (2008), 432 A.R. 188 (CA),2008 ABCA 160,292 DLR (4th) 750,[2008] 6 WWR 597,432 AR 188,90 Alta LR (4th) 201,75 Admin LR (4th) 1,[2008] AJ No 460 (QL),63 CHRR 294,292 D.L.R. (4th) 750,432 A.R. 188,(2008), 432 AR 188 (CA),[2008] A.J. No 460 (QL)
• Date: 08 February 2008
• Court: Court of Appeal (Alberta)

Brewer v. Fraser Milner Casgrain LLP (2008), 432 A.R. 188 (CA);

      424 W.A.C. 188

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MY.004

Janice Brewer (respondent/applicant) v. Fraser Milner Casgrain LLP &/or FMC Services Limited Partnership and the Chief Commissioner of the Alberta Human Rights and Citizenship Commission (appellants/respondents)

(0603-0184-AC; 0603-0221-AC; 2008 ABCA 160)

Indexed As: Brewer v. Fraser Milner Casgrain LLP et al.

Alberta Court of Appeal

Côté, Conrad and Paperny, JJ.A.

May 1, 2008.

Summary:

Brewer filed a complaint with the Alberta Human Rights and Citizenship Commission regarding her employer's attempts to accommodate her physical disability. The director of the Commission dismissed the complaint. Brewer applied for a review. The Chief Commissioner upheld the dismissal. Brewer sought judicial review of that decision.

The Alberta Court of Queen's Bench, in a decision reported at 399 A.R. 233, allowed the application, quashing the decision of the Chief Commissioner. The employer and the Chief Commissioner both filed notices of appeal. Brewer challenged the Commission's right to appeal.

The Alberta Court of Appeal struck the Chief Commissioner's appeal.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - Brewer filed a human rights complaint regarding her employer's attempts to accommodate her physical disability - The director of the Human Rights and Citizenship Commission dismissed the complaint - The Chief Commissioner upheld the dismissal - Brewer sought judicial review - The court quashed the Chief Commissioner's decision - The employer and the Chief Commissioner both appealed - Brewer challenged the Commission's right to appeal - The Alberta Court of Appeal struck the Chief Commissioner's appeal - The court rejected the Chief Commissioner's argument that because he was named as a respondent in the court below, he was a full party - This was simplistic - The common law writ named the statutory tribunal in order to get that tribunal's file - The tribunal was not a party in the traditional sense - After service of the writ, the tribunal gave up its file and lost jurisdiction - Nor did the tribunal need to be a party - The fact that it was customary to name the tribunal as a respondent was merely a historical and logistical feature, not a statement for or against any substantive rights or standing - See paragraphs 13 to 26.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - Brewer filed a human rights complaint regarding her employer's attempts to accommodate her physical disability - The director of the Human Rights and Citizenship Commission dismissed the complaint - The Chief Commissioner upheld the dismissal - Brewer sought judicial review - The court quashed the Chief Commissioner's decision - The employer and the Chief Commissioner both appealed - Brewer challenged the Commission's right to appeal - The Alberta Court of Appeal discussed the scope of a tribunal's participation in judicial review and appeal proceedings - Northwestern Utilities Ltd. v. Edmonton (City) (S.C.C.) established that, in the superior court or the Court of Appeal, a statutory tribunal was restricted to arguing its own jurisdiction and explaining the record - The tribunal could not argue the merits - The tribunal's power to argue jurisdiction, defined rather narrowly, did not permit the tribunal to argue natural justice questions - The statutory tribunal had to be patently neutral - See paragraphs 27 to 39.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - Brewer filed a human rights complaint regarding her employer's attempts to accommodate her physical disability - The director of the Human Rights and Citizenship Commission dismissed the complaint - The Chief Commissioner upheld the dismissal - Brewer sought judicial review - The court quashed the Chief Commissioner's decision - The employer and the Chief Commissioner both appealed - Brewer challenged the Commission's right to appeal - The Alberta Court of Appeal discussed the law regarding whether non-parties could participate in appeals - The general rule was that a person or body who was not a full party in the trial court could not appeal its decision to the Court of Appeal - There was a narrow exception where a non-party could appeal if four conditions were satisfied: (i) leave was granted, (ii) the case was equitable (such as a suit for an injunction or declaration), (iii) the person or body had a personal stake or right that would be adversely affected by the decision complained of, and (iv) no one else was willing to appeal - None of those conditions were satisfied here - See paragraphs 40 to 49.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - Brewer filed a human rights complaint regarding her employer's attempts to accommodate her physical disability - The director of the Human Rights and Citizenship Commission dismissed the complaint - The Chief Commissioner upheld the dismissal - Brewer sought judicial review - The court quashed the Chief Commissioner's decision - The employer and the Chief Commissioner both appealed - Brewer challenged the Commission's right to appeal - The Alberta Court of Appeal struck the Chief Commissioner's appeal - A statutory tribunal whose own decision had been quashed by judicial review could not appeal unless its own jurisdiction was in question or was questioned by the lower court - The jurisdiction of the Chief Commissioner was not in issue here - The Chief Commissioner's factum argued the standard of review in the Court of Queen's Bench, the merits and reasonableness of the Chief Commissioner's decision and whether Brewer had violated her own duty to accommodate - The Chief Commissioner was not acting as a gatekeeper or a prosecutor, nor was he enacting rules of procedure or even policies - He was sitting as an appellate body - At all stages, he was to be a neutral arbiter - The Chief Commissioner had no right to appeal and no automatic right to participate in the employer's appeal - See paragraphs 50 to 68.

Administrative Law - Topic 9131

Boards and tribunals - Administrative appeals - Persons with status to appeal - [See first, third and fourth Administrative Law - Topic 8843 ].

Civil Rights - Topic 7044.1

Federal, provincial or territorial legislation - Commissions or boards - General - Role of commissioner, chairperson, etc. - [See fourth Administrative Law - Topic 8843 ].

Civil Rights - Topic 7117

Federal, provincial or territorial legislation - Practice - Appeals (incl. standard of review) - [See all Administrative Law - Topic 8843 ].

Practice - Topic 8896

Appeals - Parties - Persons entitled to participate in an appeal - [See all Administrative Law - Topic 8843 ].

Cases Noticed:

Clark v. Canadian National Railway Co. and New Brunswick, [1988] 2 S.C.R. 680; 89 N.R. 81; 89 N.B.R.(2d) 116; 226 A.P.R. 116; 54 D.L.R.(4th) 679, refd to. [para. 10].

Young v. College of Teachers (B.C.) (2001), 150 B.C.A.C. 228; 245 W.A.C. 228; 2001 BCCA 164, dist. [para. 11].

R. v. Titchmarsh (1915), 22 D.L.R. 272; 32 O.L.R. 569 (C.A.), refd to. [para. 16].

McEwen, Re, [1941] 1 W.W.R. 129 (Man. C.A.), affd. [1941] S.C.R. 542, refd to. [para. 16].

R. v. Batchelor, [1978] 2 S.C.R. 988; 18 N.R. 416, refd to. [para. 16].

Syncrude Canada Ltd. v. Improvement District No. 189 (1986), 70 A.R. 211 (Q.B.), refd to. [para. 24].

Manitoba v. Christie, MacKay & Co., [1992] 4 W.W.R. 151; 80 Man.R.(2d) 76 (Q.B.), affd. [1993] 3 W.W.R. 396; 83 Man.R.(2d) 197; 36 W.A.C. 197 (C.A.), refd to. [para. 24].

Gratton v. Canadian Judicial Council et al. (1994), 78 F.T.R. 214; 115 D.L.R.(4th) 81 (T.D.), refd to. [para. 24].

Canadian Human Rights Commission v. Canada (Attorney General) and Bernard, [1994] 2 F.C. 447; 164 N.R. 361; 17 Admin. L.R.(2d) 2 (F.C.A.), refd to. [para. 24].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449; 89 D.L.R.(3d) 161, refd to. [para. 29].

Central Broadcasting Co. v. Canada Labour Relations Board et al., [1977] 2 S.C.R. 112; 9 N.R. 345, refd to. [para. 31].

Victoria Flying Services Ltd. v. Canadian Brotherhood of Railway, Transport and General Workers and Canada Labour Relations Board, [1979] 1 S.C.R. 95; 24 N.R. 537; 78 C.L.L.C. 14,182, refd to. [para. 31].

Bambrick, Re (1992), 101 Nfld. & P.E.I.R. 181; 321 A.P.R. 181; 10 Admin. L.R.(2d) 112 (Nfld. T.D.), refd to. [para. 31].

Dairy Producers Co-operative Ltd. v. Human Rights Commission (Sask.) et al. (1993), 117 Sask.R. 68; 109 D.L.R.(4th) 726 (Q.B.), refd to. [para. 31].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 32].

Paccar of Canada Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1; 62 D.L.R.(4th) 437, refd to. [para. 34].

Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al. (1996), 121 F.T.R. 42; 44 Admin. L.R.(2d) 250 (T.D.), refd to. [para. 38].

Clayre v. Association of Professional Engineers, Geologists and Geophysicists of Alberta (Appeal Board and the Investigative Committee) (2005), 363 A.R. 114; 343 W.A.C. 114; 2005 ABCA 59, refd to. [para. 38].

Société des Acadiens du Nouveau-Brunswick Inc. and Association des conseillers scolaires francophones du Nouveau-Brunswick v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549; 66 N.R. 173; 69 N.B.R.(2d) 271; 177 A.P.R. 271; 27 D.L.R.(4th) 406, refd to. [para. 40].

Dreco Energy Services Ltd. et al. v. Wenzel et al. (2008), 429 A.R. 51; 421 W.A.C. 51; 2008 ABCA 36, refd to. [para. 43].

Colangelo et al. v. Mississauga (City); Morencie v. Windsor (City) et al. (1989), 104 N.R. 298; 37 O.A.C. 321 (S.C.C.), refd to. [para. 44].

A.A. v. B.B. et al., [2007] 3 S.C.R. 124; 368 N.R. 384; 231 O.A.C. 395; 285 D.L.R.(4th) 255; 2007 SCC 40, refd to. [para. 44].

Alliance for Marriage and Family v. A.A. - see A.A. v. B.B. et al.

Friends of Democracy v. Northwest Territories (Attorney General) (1999), 176 D.L.R.(4th) 661 (N.W.T.C.A.), refd to. [para. 45].

R. v. N.M.P., [2000] 2 S.C.R. 857; (2008), 375 N.R. 347; 149 C.C.C.(3d) 446; 2000 SCC 59, refd to. [para. 46].

Nycan Energy Corp. v. Energy and Utilities Board (Alta.) et al. (2001), 277 A.R. 391; 242 W.A.C. 391 (C.A.), refd to. [para. 47].

Alberta Energy Co. v. Goodwell Petroleum Corp. et al. (2003), 339 A.R. 201; 312 W.A.C. 201; 233 D.L.R.(4th) 341; 2003 ABCA 277, refd to. [para. 47].

Real Estate Council of Alberta v. Henderson et al., [2007] 12 W.W.R. 601; 417 A.R. 39; 410 W.A.C. 39; 286 D.L.R.(4th) 110; 2007 ABCA 303, leave to appeal denied (2008), 386 N.R. 386 (S.C.C.), refd to. [para. 48].

Ealing Borough Council v. Jones, [1959] 1 Q.B. 384 (D.C.), refd to. [para. 48].

R. v. Dorset Quarter Sessions Appeals Committee, [1960] 2 Q.B. 230 (D.C.), refd to. [para. 48].

Niebuhr (Richard) Enterprises Ltd. et al. v. Board of Variance of Vancouver (City) (2007), 247 B.C.A.C. 305; 409 W.A.C. 305; 287 D.L.R.(4th) 563; 2007 BCCA 528, leave to appeal denied (2008), 386 N.R. 386 (S.C.C.), refd to. [para. 49].

Labour Relations Board (Sask.) v. Dominion Fire Brick & Clay Products Ltd., [1947] S.C.R. 336; [1947] 3 D.L.R. 1, refd to. [para. 54].

Labour Relations Board (N.B.) v. Eastern Bakeries Ltd., [1961] S.C.R. 72; 26 D.L.R.(2d) 332, refd to. [para. 55].

Transair Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local 3; Canada Labour Relations Board, Re, [1977] 1 S.C.R. 722; 9 N.R. 181, refd to. [para. 55].

Bibeault et al. v. McCaffrey et al., [1984] 1 S.C.R. 176; 52 N.R. 241, refd to. [para. 55].

Vassart v. Carrier - see Bibeault et al. v. McCaffrey et al.

R. v. McIvor (J.M.) (2008), 372 N.R. 135; 252 B.C.A.C. 41; 422 W.A.C. 41; 2008 SCC 11, refd to. [para. 66].

Authors and Works Noticed:

Chitty, Forms of Proceedings in the King's Bench Division (11th Ed. 1879 to 14th Ed. 1912), generally [para. 21].

de Smith, Stanley Alexander, Judicial Review of Administrative Action (2nd Ed. 1968), pp. 373 to 376, 388, 389 [para. 19].

Halsbury's Laws of England (3rd Ed. 1955), vol. 11, pp. 124, 125 [para. 22].

Stevenson, William A., and Coté, Jean E., Civil Procedure Encyclopedia (2003), vol. 3, c. 66, Parts K.2, K.6 [para. 10].

Counsel:

J.R. Carpenter and J.R. Kolmes, for the respondent;

K.C. Verville, for the appellant, Fraser Milner Casgrain LLP;

A.S. Dean and A.M. Chak, for the appellant, Chief Commissioner of the Alberta Human Rights and Citizenship Commission.

This appeal was heard on February 8, 2008, by Côté, Conrad and Paperny, JJ.A., of the Alberta Court of Appeal. On May 1, 2008, Côté, J.A., filed the following reasons for judgment for the court.