McClary v. Geophysical Services Inc. et al., (2011) 506 A.R. 302 (QB)

JudgeStevens, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateOctober 20, 2010
Citations(2011), 506 A.R. 302 (QB);2011 ABQB 112

McClary v. Geophysical Services Inc. (2011), 506 A.R. 302 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.017

In The Matter Of the Alberta Human Rights, Citizenship and Multiculutralism Act, R.S.A. 2000, c. H-14 (now known as the Alberta Human Rights Act, R.S.A. 2000, c. A-25.5.

Roger McClary (applicant) v. Geophysical Services Inc., the Attorney General and the Alberta Human Rights and Citizenship Commission (now known as the Alberta Human Rights Commission)

(respondents)

(1001 09107; 2011 ABQB 112)

Indexed As: McClary v. Geophysical Services Inc. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Stevens, J.

February 22, 2011.

Summary:

McClary's human rights complaint alleged that he was dismissed from his employment due to his diabetes. An investigator dismissed the complaint. The chief commissioner of the Human Rights and Citizenship Commission (Alta.) upheld the dismissal. McClary sought judicial review.

The Alberta Court of Queen's Bench dismissed the application.

Civil Rights - Topic 989

Discrimination - Employment - On basis of physical or mental disability - [See Civil Rights - Topic 7044.1 ].

Civil Rights - Topic 7044.1

Federal, provincial or territorial legislation - Commissions or boards - General - Role of commissioner, chairperson, etc. - McClary's human rights complaint alleged that he was dismissed from his employment due to his diabetes - An investigator dismissed the complaint - The chief commissioner of the Human Rights and Citizenship Commission (Alta.) upheld the dismissal - The Alberta Court of Queen's Bench dismissed McClary's application for judicial review - The chief commissioner fairly and reasonably performed his gatekeeper function in reviewing and upholding the dismissal - The evidence pointed clearly to McClary's employment having been terminated due to poor work performance - The chief commissioner had considered the evidence gathered by the investigator, summarizing McClary's allegations in the record of decision - The chief commissioner had evaluated the evidence's quality, noting not only the number of witnesses interviewed, but also their knowledge of the matters raised and the consensus reached - The chief commissioner had considered the additional evidence provided by McClary, setting out the general details of the arguments and supporting documents - The chief commissioner's decision clearly met the standard of reasonableness - See paragraphs 39 to 52.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - McClary's human rights complaint alleged that he was dismissed from his employment due to his diabetes - An investigator dismissed the complaint - The chief commissioner of the Human Rights and Citizenship Commission (Alta.) upheld the dismissal - The Alberta Court of Queen's Bench held that the standard of review of the chief commissioner's decision was reasonableness - The question was whether there was a reasonable basis in the evidence to forward McClary's complaint for a human rights panel hearing - The question was one of mixed fact and law, there was a partial privative clause and the chief commissioner was interpreting his own statute with which he had familiarity - See paragraphs 31 to 38.

Cases Noticed:

Sarcee Gravel Products Inc. v. Workers' Compensation Board (Alta.) (1997), 209 A.R. 156; 160 W.A.C. 156 (C.A.), refd to. [para. 24].

979899 Alberta Ltd. v. Alberta et al., [2008] A.R. Uned. 254; 2008 ABQB 57, refd to. [para. 25].

Alberta Liquor Store Association et al. v. Gaming and Liquor Commission (Alta.) et al. (2006), 406 A.R. 104; 2006 ABQB 904, refd to. [para. 25].

Brewer v. Fraser Milner Casgrain LLP et al. (2008), 432 A.R. 188; 424 W.A.C. 188; 2008 ABCA 160, refd to. [para. 30].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 30].

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. 31].

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, refd to. [para. 31].

Mis v. Human Rights and Citizenship Commission (Alta.) (2001), 293 A.R. 391; 257 W.A.C. 391; 2001 ABCA 212, refd to. [para. 33].

Brewer v. Fraser Milner Casgrain LLP et al. (2008), 446 A.R. 76; 442 W.A.C. 76; 2008 ABCA 435, refd to. [para. 34].

Gramaglia v. Alberta (Minister of Government Services) et al. (2007), 404 A.R. 233; 394 W.A.C. 233; 2007 ABCA 93, refd to. [para. 34].

Callan v. Suncor Inc. et al. (2006), 380 A.R. 247; 363 W.A.C. 247; 2006 ABCA 15, refd to. [para. 34].

Economic Development Edmonton v. Wong et al. (2005), 371 A.R. 362; 354 W.A.C. 362; 2005 ABCA 278, refd to. [para. 34].

Economic Development Edmonton v. Baah et al., [2005] A.R. Uned. 245; 2005 ABCA 279, refd to. [para. 34].

Coward v. Human Rights and Citizenship Commission (Alta.) (2008), 455 A.R. 177; 2008 ABQB 455, refd to. [para. 34].

Calgary (City) v. Cabalde (2000), 287 A.R. 249; 2000 ABQB 712, affd. (2003), 320 A.R. 314; 288 W.A.C. 314; 2003 ABCA 39, refd to. [para. 35].

Counsel:

Roger McClary appeared on his own behalf;

Brent Mescall, for Geophysical Services Inc.;

Janice Ashcroft, for the Chief of the Commission and Tribunals, Alberta Human Rights Commission.

This application was heard on October 20, 2010, by Stevens, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on February 22, 2011.

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4 practice notes
  • Caron v. Human Rights Commission (Alta.) et al., (2013) 551 A.R. 355 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 7, 2013
    ...Commission (Alta.) et al., [2006] A.R. Uned. 664; 2006 ABQB 776, refd to. [para. 47]. McClary v. Geophysical Services Inc. et al. (2011), 506 A.R. 302; 2011 ABQB 112, refd to. [para. 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; 2......
  • University of Alberta v. Information and Privacy Commissioner (Alta.) et al., (2011) 525 A.R. 58 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • November 16, 2011
    ...Local Union 987 of Alberta et al. (2009), 470 A.R. 24; 2009 ABQB 127, refd to. [para. 23]. McClary v. Geophysical Services Inc. et al. (2011), 506 A.R. 302; 2011 ABQB 112, refd to. [para. O'Malley v. Board of Education of Calgary Roman Catholic Separate School District No. 1 (2006), 398 A.R......
  • Silverman v. Human Rights Commission (Alta.) et al., 2012 ABQB 152
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 13, 2012
    ...test for fresh evidence on appeal has no application in this context. [10] CYS also referred to McClary v. Geophysical Service Inc. , 2011 ABQB 112 and relied on these comments at paras. 25 and 26: Judicial review is conducted on the basis of the return, and affidavit evidence is generally ......
  • Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality) et al., 2011 ABQB 220
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 25, 2011
    ...- Evidence - Admissibility - [See Administrative Law - Topic 3345 ]. Cases Noticed: McClary v. Geophysical Services Inc. et al. (2011), 506 A.R. 302 (Q.B.), dist. [para. 20]. TNL Industrial Contractors Ltd. et al. v. International Brotherhood of Electrical Workers, Local 424 et al. (1998), ......
4 cases
  • Caron v. Human Rights Commission (Alta.) et al., (2013) 551 A.R. 355 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • January 7, 2013
    ...Commission (Alta.) et al., [2006] A.R. Uned. 664; 2006 ABQB 776, refd to. [para. 47]. McClary v. Geophysical Services Inc. et al. (2011), 506 A.R. 302; 2011 ABQB 112, refd to. [para. 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; 2......
  • University of Alberta v. Information and Privacy Commissioner (Alta.) et al., (2011) 525 A.R. 58 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • November 16, 2011
    ...Local Union 987 of Alberta et al. (2009), 470 A.R. 24; 2009 ABQB 127, refd to. [para. 23]. McClary v. Geophysical Services Inc. et al. (2011), 506 A.R. 302; 2011 ABQB 112, refd to. [para. O'Malley v. Board of Education of Calgary Roman Catholic Separate School District No. 1 (2006), 398 A.R......
  • Silverman v. Human Rights Commission (Alta.) et al., 2012 ABQB 152
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 13, 2012
    ...test for fresh evidence on appeal has no application in this context. [10] CYS also referred to McClary v. Geophysical Service Inc. , 2011 ABQB 112 and relied on these comments at paras. 25 and 26: Judicial review is conducted on the basis of the return, and affidavit evidence is generally ......
  • Canadian Natural Resources Ltd. v. Wood Buffalo (Regional Municipality) et al., 2011 ABQB 220
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • March 25, 2011
    ...- Evidence - Admissibility - [See Administrative Law - Topic 3345 ]. Cases Noticed: McClary v. Geophysical Services Inc. et al. (2011), 506 A.R. 302 (Q.B.), dist. [para. 20]. TNL Industrial Contractors Ltd. et al. v. International Brotherhood of Electrical Workers, Local 424 et al. (1998), ......

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