Lethbridge Industries Ltd. v. Alberta Human Rights Commission et al., (2014) 595 A.R. 216 (QB)

• Judge: Jones, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 04, 2013
• Citations: (2014), 595 A.R. 216 (QB);2014 ABQB 496

Lethbridge Ind. Ltd. v. HRC (2014), 595 A.R. 216 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AU.125

Lethbridge Industries Ltd. (appellant) v. Alberta Human Rights Commission and Thomas Schulz (respondents)

(1206 00204; 2014 ABQB 496)

Indexed As: Lethbridge Industries Ltd. v. Alberta Human Rights Commission et al.

Alberta Court of Queen's Bench

Judicial District of Lethbridge

Jones, J.

August 12, 2014.

Summary:

The applicant Company sought both judicial review and judicial appeal in relation to an Alberta Human Rights Tribunal decision that the Company discriminated against its employee, Schulz, on the basis of disability (hernia issues, migraine headaches, and chronic depression). Specifically, the Company sought judicial review on the basis that the Tribunal lost jurisdiction over the complaint by failing to issue its reasons within the time period stipulated in the Bylaws. It appealed, pursuant to s. 37 of the Alberta Human Rights Act, on the basis that the Tribunal erred in fact and in law in finding that the Company's action in terminating Schulz amounted to discrimination, in misapplying the Act, and in granting an inappropriate remedy. The parties disagreed as to the appropriate standard of review.

The Alberta Court of Queen's Bench determined that the standard of reasonableness applied to both the judicial review and the appeal. The Court denied the judicial review. The Commission's interpretation of the Bylaws and its decision to extend the time for delivery of reasons were reasonable. The Court granted the appeal, in part. The Tribunal's finding that the Company contravened the Act in terminating Schulz was reasonable. The appeal as to damages was allowed with respect to the Tribunal's order for payment of 30 months' wages. The Court ordered the Company to pay damages assessed at 20 months' pay.

Administrative Law - Topic 6201

Judicial review - Statutory appeal - Scope or standard of review - General - [See Civil Rights - Topic 7117 ].

Administrative Law - Topic 9052

Boards and tribunals - Jurisdiction of particular boards and tribunals - Provincial Human Rights Commission - [See Civil Rights - Topic 7069 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Civil Rights - Topic 7115 ].

Civil Rights - Topic 2

Interpretation of human rights legislation - [See second Civil Rights - Topic 7109 ].

Civil Rights - Topic 983

Discrimination - Employment - What constitutes discrimination - [See Civil Rights - Topic 989 ].

Civil Rights - Topic 989

Discrimination - Employment - On basis of physical or mental disability - The employer appealed an Alberta Human Rights Tribunal decision that it discriminated against its employee - The Tribunal found that the employee suffered from both physical and mental disabilities, the employer had knowledge of same, and the employee's related absences played a role in his termination - The employer appealed - The Alberta Court of Queen's Bench held that the Tribunal's decision that the employee had established a prima facie case of discrimination was reasonable - "The issue is not whether [the employee] was terminated, in part, due to his excessive absenteeism. It is whether he was terminated based upon mental and physical disabilities which caused him to be frequently absent from work. This distinction is key." - Further, the Tribunal's conclusion that the attendance standard was not a bona fide occupational requirement clearly fell within the range of possible, reasonable outcomes defensible on the facts and law - See paragraphs 102 to 144.

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Bona fide or reasonable occupational requirement or qualification - [See Civil Rights - Topic 989 ].

Civil Rights - Topic 1170

Discrimination - Remedies - Hurt feelings or mental anguish - Compensation - [See first Civil Rights - Topic 7185 ].

Civil Rights - Topic 7063

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Remedies - [See second Civil Rights - Topic 7185 ].

Civil Rights - Topic 7069

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - General - The employer sought judicial review in relation to an Alberta Human Rights Commission decision that it discriminated against its employee - The employer argued that the Tribunal lost jurisdiction over the complaint by failing to issue the reasons in time - The last day of the hearing was September 27, 2011 - The decision was released on March 7, 2012 - The Tribunal's initial notice of extension (dated November 30, 2011) was issued outside the 60 day time period provided for in s. 19 of the Tribunal's Bylaws - The Tribunal extended the time frame to 180 days, under s. 20 of the Bylaws - The Alberta Court of Queen's Bench, on the reasonableness standard, denied the judicial review - The Bylaws did not expressly require any written reasons for increasing or shortening any time period contained therein - The Court rejected the submission that the Tribunal could not retroactively grant an extension after the expiration of the initial time period - See paragraphs 83 to 101.

Civil Rights - Topic 7109

Federal, provincial or territorial legislation - Practice - Procedure - The Alberta Human Rights Commission extended the time period for service of its reasons, under its Bylaws - The original extension, granted pursuant to Bylaw 19(b), had been served outside of the stipulated 60 day time period - Two further extensions were granted - The Commission then retroactively extended the time frame from 60 days to 180 days, in accordance with Bylaw 20 - The Alberta Court of Queen's Bench, in dismissing the judicial review application, stated that "[t]he Bylaws govern the procedure of the Commission and the tribunals. They exist, in part, to provide for an ordered and judicious resolution of claims. The timely determination of claims is important in cases such as this in order for both employers and employees to remain informed of their respective rights and responsibilities. These key goals were not undermined by the Commission's interpretation of the Bylaws. Indeed, the correspondence reflects the Commission's attempt to keep the parties abreast of its progression and estimated completion date, and demonstrates the reasonableness of the Commission's approach." - See paragraph 92.

Civil Rights - Topic 7109

Federal, provincial or territorial legislation - Practice - Procedure - The Alberta Human Rights Commission extended the time period for service of its reasons, under its Bylaws - Following the employer's objection to the multiple extensions under Bylaw 19, a retroactive extension was issued under Bylaw 20 - The Alberta Court of Queen's Bench, in finding that the Commission's interpretation of both Bylaws was reasonable, stated that "[t]he practical realities of operating within the human rights forum strengthens the requirement for flexibility in Bylaw interpretation. As stressed by the Commission, a purposive approach to the interpretation of human rights legislation gives effect to the aims of such legislation. ... It was reasonable for the Commission to interpret its Bylaws in a manner which ensures that the values espoused in the [Alberta Human Rights] Act are effectively promoted. A lack of flexibility in interpreting the Bylaws may lead to an unwanted restriction of the substantive rights of the parties under the Act." - See paragraphs 93 to 101.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - The employer sought judicial review in relation to an Alberta Human Rights Commission decision, on the basis that the Commission lost jurisdiction of the discrimination complaint by acting outside of time periods stipulated in its Bylaws -The parties disagreed as to the appropriate standard of review - The Alberta Court of Queen's Bench, on a review of recent cases, agreed with the respondents that the appropriate standard was one of reasonableness - "[T]he time-constraint question is neither a question of true jurisdiction or vires, nor any of the other categorical exceptions attracting a correctness standard. While the Bylaws are not a part of the Commission's home statute, they were created pursuant to an express power granted under the [Alberta Human Rights] Act (s. 17). They are closely related to the home statute and are - as stated in the Act - concerned with 'procedural matters related to the handling of complaints'. The Commissioner was involved in a straight-forward interpretation of a procedural provision created under his home statute with which he possesses familiarity and expertise." - See paragraphs 33 to 51.

Civil Rights - Topic 7117

Federal, provincial or territorial legislation - Practice - Appeals (incl. standard of review) - The employer brought an appeal pursuant to s. 37 of Alberta's Human Rights Act, on the following issues: whether the Human Rights Tribunal erred in finding that the employee had been terminated due to his disability, in contravention of the Act, and in determining an appropriate remedy - The parties disagreed as to the appropriate standard of review - The Alberta Court of Queen's Bench, on a review of recent jurisprudence, agreed with the respondents that the standard of reasonableness applied - Overarching issues of policy enveloped both questions - "A determination of whether discrimination occurred forms a fundamental part of the Tribunal's mandate to make findings relating to discrimination and grant any appropriate remedy flowing therefrom. The Tribunal was well positioned to determine these issues and should be afforded deference on this point. None of the issues decided by the Tribunal and before me on appeal are ones of central importance to the legal system, or fall outside the adjudicator's specialized area of expertise. The principles addressed by the Tribunal are contextually sensitive to the legislative regime provided for in the Act." - See paragraphs 76 to 79.

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - The Alberta Human Rights Commission awarded the complainant $10,000 in non-pecuniary damages for the injuries sustained to his dignity and self-respect as a result of the employer's/Company's discriminatory actions - It noted both the fact that the Company continued the complainant's benefits for a 12-month period following termination, as well as that the termination detrimentally affected his depression - The Company took issue with the amount awarded - The Alberta Court of Queen's Bench stated that "[w]ere I deciding this case at first instance, I would have given additional weight to the fact that the Company seemed to be acting in good faith in historically extending an informal leave policy to the complainant. ... The overarching purpose of the [Human Rights] Act is remedial and compensatory, as opposed to punitive." - Although the Court found the amount to be on the "very high end", it left the amount undisturbed, given the reasonableness standard - See paragraphs 145 to 152.

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - The Alberta Court of Queen's Bench stated that "while the case law is clear that the measure of damages awarded in human rights claims is not limited to what might have been received in an action for wrongful dismissal, any approach taken in ascertaining an amount must be exercised on a principled basis, having regard to the nature and the intent of the legislation. ... [T]he goal of human rights legislation is to make the victim whole for the damages caused ... . The premise that a tribunal is not limited by awards in employment law is borne out by a review of section 32 of the [Alberta Human Rights] Act. ... Each of the remedial tools available to the tribunal is aimed at making the complainant whole, or placing him in the position he would have occupied had the discrimination not occurred. At the same time, the statutory powers in the Act prevent a tribunal from stepping beyond this scope in crafting a remedy." - See paragraphs 191 to 196.

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - The Alberta Human Rights Commission assessed the complainant's wage loss at 30 months as a result of his employer's discriminatory actions, and awarded $85,239.30 for lost wages, an amount it acknowledged to be approximately 50% more than what would have been awarded using wrongful dismissal standards - The employer appealed - The Alberta Court of Queen's Bench held that the Tribunal's use of 30 months was unreasonable - "[T]he Tribunal seems to have lost sight of its legislated mandate of compensating the employee for all or part of any wages or income lost as a result of the discriminatory conduct." - There was no evidence on the record in support of the Tribunal's "extraordinary" award - The award "effectively places an employer who has contravened the [Alberta Human Rights] Act in the position of an employment insurer. This is beyond the scope of the legislative intent." - A period of 20 months was reasonable, given the employee's age (51 at termination), his length of service with the employer (1981 to 2006), his job responsibilities (manager), and the possibility that he might not have been able to function in his position even with accommodation - See paragraphs 197 to 208, 215 to 217.

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - The Alberta Human Rights Commission found that the employee's pending termination worsened his depression, functioning as the catalyst for his LTD benefits claim - The Tribunal concluded that, as the employee had contributed to the benefit insurance plan, the disability benefits were not deductible from the wage loss award - The employer appealed - The Alberta Court of Queen's Bench held that the issue could not be answered, absent a copy of the insurance contract - A review of the LTD policy was required in order to ascertain whether the LTD benefits were meant to provide for the same loss arising under the Human Rights Act - The policy was not before the Tribunal, did not form part of the record, and was not reviewable - There was no evidence given regarding the intention of the parties - There was no attempt to examine the source of the benefit, its nature and purpose - By focusing exclusively on the issue of contribution to the premium payments, the Tribunal failed to enter into that critical analysis - See paragraphs 166 to 189, 218 and 219.

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. 21].

Lippa v. Can-Cell Industries Inc. (2009), 483 A.R. 262; 2009 ABQB 684, affd. (2010), 493 A.R. 389; 502 W.A.C. 389; 37 Alta. L.R.(5th) 74; 2010 ABCA 409, refd to. [para. 24].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 32].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al., [2012] 1 S.C.R. 364; 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 37].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 40].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 44].

Whatcott v. Human Rights Tribunal (Sask.) et al., [2013] 1 S.C.R. 467; 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 56].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 57].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 58].

Lethbridge Regional Police Service et al. v. Lethbridge Police Association (2013), 542 A.R. 252; 566 W.A.C. 252; 2013 ABCA 47, refd to. [para. 61].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., [2012] 2 S.C.R. 283; 432 N.R. 1; 2012 SCC 35, refd to. [para. 64].

Baum et al. v. Calgary (City) (2008), 465 A.R. 335; 2008 ABQB 791, refd to. [para. 68].

Walsh v. Mobil Oil Canada et al. (2008), 440 A.R. 199; 438 W.A.C. 199; 2008 ABCA 268, refd to. [para. 69].

Walsh v. Mobil Oil Canada et al. (2012), 548 A.R. 41; 2012 ABQB 527, refd to. [para. 72].

Walsh v. Mobil Oil Canada et al. (2013), 553 A.R. 360; 583 W.A.C. 360; 2013 ABCA 238, refd to. [para. 73].

Boissoin et al. v. Lund et al. (2012), 536 A.R. 272; 559 W.A.C. 272; 2012 ABCA 300, refd to. [para. 75].

Irving Pulp and Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30, [2013] 2 S.C.R. 458; 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 81].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 88].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 88].

Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section local 2000 (SCFP-FTQ) v. Hydro-Québec, [2008] 2 S.C.R. 561; 377 N.R. 136; 2008 SCC 43, refd to. [para. 104].

Potash Corp. of Saskatchewan Inc. v. Scott et al., [2008] 2 S.C.R. 604; 377 N.R. 91; 332 N.B.R.(2d) 341; 852 A.P.R. 341; 2008 SCC 45, refd to. [para. 104].

British Columbia (Minister of Education) v. Moore et al., [2012] 3 S.C.R. 360; 436 N.R. 152; 328 B.C.A.C. 1; 558 W.A.C. 1; 2012 SCC 61, refd to. [para. 104].

United Nurses of Alberta, Local 33 v. Capital Health Authority (Royal Alexandra) (2008), 442 A.R. 64; 2008 ABQB 126, refd to. [para. 109].

Ottawa (City) v. Canadian Human Rights Commission et al. (2005), 341 N.R. 201; 2005 FCA 311, refd to. [para. 109].

Desormeaux v. Ottawa-Carleton Transportation Commission - see Ottawa (City) v. Canadian Human Rights Commission et al.

Bhasin v. Home Depot (Canada) Inc., [2007] O.T.C. Uned. 896; 58 C.C.E.L.(3d) 265 (Sup. Ct.), refd to. [para. 109].

Weitmann v. Calgary (City) Electric System, 2000 A.H.R.C. 1, refd to. [para. 113].

Abrams v. Calgary Board of Education, 2007 A.H.R.C. 2, refd to. [para. 113].

Desormeaux v. Ottawa-Carleton Transportation Commission, 2003 C.H.R.T. 2, refd to. [para. 122].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 125].

McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal et al., [2007] 1 S.C.R. 161; 356 N.R. 177; 2007 SCC 4, refd to. [para. 125].

Callan v. Suncor Inc. et al. (2006), 380 A.R. 247; 363 W.A.C. 247; 2006 ABCA 15, refd to. [para. 140].

Chieriro v. Michetti, 2013 A.H.R.C. 3, refd to. [para. 149].

Chopra v. Canada (Attorney General) et al. (2007), 369 N.R. 207; 283 D.L.R.(4th) 634; 2007 FCA 268, refd to. [para. 159].

Vantage Contracting Inc. v. Marcil et al. (2004), 370 A.R. 191; 2004 ABQB 247, refd to. [para. 160].

White v. Woolworth (F.W.) Co. (1996), 139 Nfld. & P.E.I.R. 324; 433 A.P.R. 324 (Nfld. C.A.), leave to appeal refused (1997), 222 N.R. 80 (S.C.C.), refd to. [para. 168].

Sylvester v. British Columbia, [1997] 2 S.C.R. 315; 212 N.R. 51; 91 B.C.A.C. 124; 148 W.A.C. 124, refd to. [para. 168].

Martin v. Children's House Child Care Society (2006), 410 A.R. 322; 2006 ABQB 937, refd to. [para. 170].

Waterman v. IBM Canada Ltd., [2013] 3 S.C.R. 985; 347 B.C.A.C. 43; 593 W.A.C. 43; 2013 SCC 70, refd to. [para. 173].

Whatcott v. Human Rights Tribunal (Sask.) et al. (2007), 306 Sask.R. 186; 2007 SKQB 450, refd to. [para. 174].

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. 201].

Statutes Noticed:

Alberta Human Rights Act, R.S.A. 2000, c. A-25.5, sect. 7(1) [para. 13]; sect. 32(1)(b) (iv) [para. 158].

Counsel:

Krushel Farrington and James R. Farrington, for the appellant;

Janice Ashcroft, Q.C., for the respondent, Alberta Human Rights Commission;

Michael Pollard (Twin River Law LLP ), for the respondent, Thomas Schulz.

This judicial review and judicial appeal were heard on February 4, 2013, before Jones, J., of the Alberta Court of Queen's Bench, who delivered the following judgment and reasons, dated at Calgary, Alberta, on August 12, 2014.