Gramaglia v. Alberta (Minister of Government Services) et al.,

• Judge: Kent,Martin,Ritter
• Neutral Citation: 2007 ABCA 93
• Date: 14 February 2007
• Subject Matter: COURTS,CIVIL RIGHTS
• Court: Court of Appeal (Alberta)

Gramaglia v. Alta. (2007), 404 A.R. 233 (CA);

      394 W.A.C. 233

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. AP.027

Salvatore Gramaglia (appellant/applicant) v. The Alberta Government Services Minister, The Alberta Transportation Minister, The Minister of Justice and Attorney General for Alberta and The Attorney General for Canada (respondents/respondents) and the Chief Commissioner Charlach Mackintosh of The Alberta Human Rights and Citizenship Commission (respondent/respondent)

(0501-0368-AC; 2007 ABCA 93)

Indexed As: Gramaglia v. Alberta (Minister of Government Services) et al.

Alberta Court of Appeal

Ritter and Martin, JJ.A., and Kent, J.(ad hoc)

March 28, 2007.

Summary:

The applicant, a diabetic, filed a complaint with the Alberta Human Rights and Citizenship Commission against Alberta Government Services and Alberta Transportation. He alleged that they discriminated against him by requiring him to submit to a medical examination before renewing his operator's license. A Commission investigator dismissed the complaint. The Chief Commissioner upheld the dismissal of the complaint. The applicant sought judicial review. A chamber's judge dismissed the application. The applicant appealed.

The Alberta Court of Appeal dismissed the appeal.

Civil Rights - Topic 960.2

Discrimination - Mental or physical disability - Disability defined - The applicant, a diabetic, filed a complaint with the Alberta Human Rights and Citizenship Commission against Alberta Government Services and Alberta Transportation - He alleged that they discriminated against him by requiring him to submit to a medical examination before renewing his operator's license - A Commission investigator dismissed the complaint, concluding that while the requirements for further medical information might prima facie discriminate on the basis of physical disability, the alleged discrimination was reasonable and justifiable in the circumstances - The Chief Commissioner upheld the dismissal of the complaint, concluding that further inquiry into the matter by a human rights panel was not warranted - The applicant's judicial review application was dismissed - The Alberta Court of Appeal dismissed the applicant's appeal - The Chief Commissioner's decision was clearly reasonable - It was based on findings from credible sources that demonstrated diabetes posed a risk to drivers themselves, as well as others, but recognized that the presence of a disability was not an automatic bar since conditions could be imposed upon individuals to address the underlying concern - See paragraphs 33 to 35.

Civil Rights - Topic 7063

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Remedies - The applicant, a diabetic, filed a complaint with the Alberta Human Rights and Citizenship Commission against Alberta Government Services and Alberta Transportation - He alleged that they discriminated against him by requiring him to submit to a medical examination before renewing his operator's license - A Commission investigator dismissed the complaint, concluding that while the requirements for further medical information might prima facie discriminate on the basis of physical disability, the alleged discrimination was reasonable and justifiable in the circumstances - The Chief Commissioner upheld the dismissal of the complaint - The applicant sought judicial review and raised various Charter issues - A chambers judge ruled that the applicant could not raise the Charter issues - The Alberta Court of Appeal held that, although the Chief Commissioner did not enjoy the jurisdiction to grant Charter remedies, the chamber's judge did as a court of competent jurisdiction and it was an error of law to decline to deal with Charter issues on the basis of any lack of jurisdiction per se - A judicial review could be combined with other proceedings - See paragraphs 36 to 40.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - The applicant, a diabetic, filed a complaint with the Alberta Human Rights and Citizenship Commission against Alberta Government Services and Alberta Transportation - He alleged that they discriminated against him by requiring him to submit to a medical examination before renewing his operator's license - A Commission investigator dismissed the complaint, concluding that while the requirements for further medical information might prima facie discriminate on the basis of physical disability, the alleged discrimination was reasonable and justifiable in the circumstances - The Chief Commissioner upheld the dismissal of the complaint - The applicant's judicial review application was dismissed - The Alberta Court of Appeal held that the nature of the question in this case was a question of mixed fact and law - The role of the Chief Commissioner was one of evaluating the sufficiency of evidence - While the purpose of the Human Rights, Citizenship and Multiculturalism Act suggested less deference be accorded to the Chief Commissioner's decision, the privative clause, the nature of the question and the expertise of the Chief Commissioner in relation to that question, all pointed toward greater deference - Balancing all factors, the proper standard of review was reasonableness - See paragraphs 16 to 32.

Civil Rights - Topic 8588

Canadian Charter of Rights and Freedoms - Practice - Notice to Attorney General - The applicant, a diabetic, filed a complaint with the Alberta Human Rights and Citizenship Commission against Alberta Government Services and Alberta Transportation - He alleged that they discriminated against him by requiring him to submit to a medical examination before renewing his operator's license - A Commission investigator dismissed the complaint, concluding that while the requirements for further medical information might prima facie discriminate on the basis of physical disability, the alleged discrimination was reasonable and justifiable in the circumstances - The Chief Commissioner upheld the dismissal of the complaint - The applicant sought judicial review and raised various Charter issues challenging the application legislation - The Alberta Court of Appeal agreed with the chambers judge that the applicant's notice to the Attorney General of Canada and Alberta Minister of Justice under s. 24 of the Judicature Act was so inadequate and deficient as to constitute a bar to the applicant's constitutional challenges - It did not identify what part of enactments were being attacked, nor provide any particulars as to the applicant's proposed argument - See paragraphs 41 to 54.

Courts - Topic 8349

Provincial courts - Alberta - Court of Queen's Bench - Jurisdiction - Constitutional issues - [See Civil Rights - Topic 7063 ].

Cases Noticed:

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 5].

Calgary (City) v. Human Rights and Citizenship Commission (Alta.) - see Calgary (City) v. Cabalde.

Calgary (City) v. Cabalde (2003), 320 A.R. 314; 288 W.A.C. 314; 2003 ABCA 39, refd to. [para. 9].

Calgary (City) v. Cabalde (2000), 287 A.R. 249; 2000 ABQB 712, refd to. [para. 9].

Workers' Compensation Board (Alta.) v. Workers' Compensation Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, refd to. [para. 16].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 16].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 16].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 16].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 16].

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81; 149 D.L.R.(4th) 577, refd to. [para. 19].

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140; 102 D.L.R.(4th) 402, refd to. [para. 20].

Sheptycki v. Human Rights and Citizenship Commission (Alta.), 1999 CarswellAlta 1412 (Q.B.), refd to. [para. 20].

Bigsby v. Human Rights and Citizenship Commission (Alta.) et al. (2002), 318 A.R. 144; 2002 ABQB 574, refd to. [para. 20].

G.S. v. Human Rights and Citizenship Commission (Alta.) (2002), 322 A.R. 133; 2002 ABQB 597, affd. (2003), 330 A.R. 184; 299 W.A.C. 184; 2003 ABCA 192, refd to. [para. 22].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81, refd to. [para. 24].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 24].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 24].

Alberta (Minister of Human Resources and Employment) v. Weller - see Alberta (Minister of Human Resources and Employment) v. Director of the Human Rights, Citizenship and Multiculturalism Commission (Alta.) et al.

Alberta (Minister of Human Resources and Employment) v. Director of the Human Rights, Citizenship and Multiculturalism Commission (Alta.) et al. (2006), 391 A.R. 31; 377 W.A.C. 31; 62 Alta. L.R.(4th) 209; 2006 ABCA 235, refd to. [para. 27].

Foster v. Transportation and Safety Board (Alta.) (2006), 397 A.R. 82; 384 W.A.C. 82; 2006 ABCA 282, refd to. [para. 31].

Fitzgerald et al. v. Alberta (2004), 348 A.R. 113; 321 W.A.C. 113; 2004 ABCA 184, refd to. [para. 37].

Ferraiuolo Estate v. Olson (2004), 357 A.R. 68; 334 W.A.C. 68; 2004 ABCA 281, refd to. [para. 37].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 29 D.L.R.(4th) 161, refd to. [para. 39].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 120 D.L.R.(4th) 12, refd to. [para. 43].

Counsel:

The appellant appeared on own behalf;

C. Nugent, for the respondents, The Alberta Government Services Minister and The Alberta Transportation Minister;

J.R. Ashcroft, for the respondent, The Alberta Human Rights and Citizenship Commission;

L.H. Riczu, for the respondent, The Minister of Justice and Attorney General for Alberta.

This appeal was heard on February 14, 2007, by Ritter and Martin, JJ.A., and Kent, J.(ad hoc), of the Alberta Court of Appeal. The court filed the following memorandum of judgment at Calgary, Alberta, on March 28, 2007.