Greater St. Albert Roman Catholic Separate School District No. 734 v. Buterman, (2014) 570 A.R. 39 (QB)

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 08, 2014
• Citations: (2014), 570 A.R. 39 (QB);2014 ABQB 14

R.C. Sep. Sch. v. Buterman (2014), 570 A.R. 39 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JA.118

The Board of Trustees of the Greater St. Albert Roman Catholic Separate School District No. 734 (applicant) v. Jan Buterman (respondent) and Chief of the Commission and Tribunals, Alberta Human Rights Commission (respondent by order)

(1203 14739; 2014 ABQB 14)

Indexed As: Greater St. Albert Roman Catholic Separate School District No. 734 v. Buterman

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

January 8, 2014.

Summary:

The Board of Trustees of the Greater St. Albert Catholic Separate School District No. 734 (school board), removed Buterman's name from its substitute teacher list after he advised the school board that he had been diagnosed with transgenderism and would proceed with gender transition. Butterman filed a discrimination complaint against the school board. The Director of the Alberta Human Rights Commission (Director), dismissed the complaint but the Chief of the Commission and Tribunals (Chief) decided the complaint should not have been dismissed and referred it to a human rights tribunal. The school board filed an originating application for judicial review of the Director's and Chief's decisions. The Director applied to strike out the proceedings against him.

The Alberta Court of Queen's Bench, in a decision reported (2013), 570 A.R. 19, dismissed the Director's application to strike. The judicial review proceedings continued.

The Alberta Court of Queen's Bench dismissed the application for judicial review of the Director's decision because it was statute barred by the six month limitation period in rule 3.15(2) of the Rules of Court, but opined that it would have dismissed the application on the merits in any event. The court dismissed the application for review of the Chief's decision, holding that it was not unreasonable.

Administrative Law - Topic 3342

Judicial review - Practice - Limitation period - The complainant filed a discrimination complaint against a school board - On May 20, 2011, the Human Rights Commission Director dismissed the complaint - The complainant sought a review - The school board queried of the Director as to whether, if the reviewing authority ruled that he erred in dismissing the complaint, he would exercise his authority to (a) declare that the complaint was settled or (b) discontinue the proceedings because the complainant refused to accept a fair and reasonable settlement proposal - On July 28, 2011, the Director replied that he did not have the authority to reconsider a decision to dismiss a complaint - In October 2012, the school board filed an originating application for judicial review - The Alberta Court of Queen's Bench held that the application was statute barred because the application was not filed within six months of the "decision or act" (Rules of Court, rule 3.15(2)) - Here, the time limit ran from July 28, 2011 - Neither a subsequent reiteration of the request by the school board on September 20, 2012, nor the reiterative response by the Director served to revive that time limit - See paragraphs 59 to 75.

Civil Rights - Topic 7003

Federal, provincial or territorial legislation - Interpretation of human rights legislation - [See first Civil Rights - Topic 7044.2 ].

Civil Rights - Topic 7004

Federal, provincial or territorial legislation - General - Application of legislation - [See fourth Civil Rights - Topic 7044.1 ].

Civil Rights - Topic 7044.1

Federal, provincial or territorial legislation - Commissions or boards - General - Role of commissioner, chairperson, etc. - The Human Rights Commission Director dismissed a discrimination complaint against a school board - The complainant requested a review - The school board filed a reply, seeking as alternative relief, an order that the Director (a) declare the complaint settled; or (b) determine whether to discontinue the proceedings because the complainant refused to accept a fair and reasonable settlement proposal - The Chief overturned the Director's decision to dismiss the complaint, appointed a tribunal and decided that since the Director did not determine the settlement issue, he could not review it - The school board applied for judicial review, arguing that the Chief unreasonably failed to refer the matter to the Director for the settlement issues to be dealt with - The Alberta Court of Queen's Bench dismissed the application, holding that the Chief conducted himself according to a reasonable interpretation of his statutory authority - See paragraphs 122 to 128.

Civil Rights - Topic 7044.1

Federal, provincial or territorial legislation - Commissions or boards - General - Role of commissioner, chairperson, etc. - The complainant filed a discrimination complaint against a school board - The Human Rights Commission Director dismissed the complaint holding that the decision was lawful and there was no reasonable prospect that the complaint could be successful before a human rights tribunal - On a review, the Commission Chief overturned the decision and referred the case to a human rights tribunal - The school board applied for judicial review, arguing that the Chief erred in finding that the standard used by the Director, "reasonable prospect of success", was too high and not in keeping with the jurisprudence - The Alberta Court of Queen's Bench rejected the school board's argument - See paragraphs 129 to 135.

Civil Rights - Topic 7044.1

Federal, provincial or territorial legislation - Commissions or boards - General - Role of commissioner, chairperson, etc. - The complainant filed a discrimination complaint against a Catholic school board - The Human Rights Commission Director dismissed the complaint but the Commission Chief decided the complaint should not have been dismissed and referred it to a human rights tribunal - The school board applied for judicial review, arguing that the Chief erred in finding that the school board was a "public school board" - The Alberta Court of Queen's Bench stated that the school board could not be heard to complain that the Chief referred to it as a "public school board" when the word "public" was the terminology employed by the board itself ("de jure public regional division") - The school board's usage of the term served to confirm there was a live issue as to its proper legal characterization - See paragraphs 136 to 140.

Civil Rights - Topic 7044.1

Federal, provincial or territorial legislation - Commissions or boards - General - Role of commissioner, chairperson, etc. - The complainant filed a discrimination complaint against a Catholic school board - The Human Rights Commission Director dismissed the complaint but the Commission Chief decided the complaint should not have been dismissed and referred it to a human rights tribunal - The school board applied for judicial review, arguing that the Chief erred in finding that the school board's constitutionally guaranteed rights might have been lost - The Alberta Court of Queen's Bench held that it was not for the court, on judicial review of the Chief's decision, to decide the constitutional issue - Nor did the Chief determine the issue of whether the school board enjoyed constitutional protection from human rights claims - He refrained from doing so, instead finding only that there was a reasonable basis on the materials before him to proceed to a tribunal for a determination of the issues - See paragraphs 145 to 167.

Civil Rights - Topic 7044.1

Federal, provincial or territorial legislation - Commissions or boards - General - Role of commissioner, chairperson, etc. - The complainant filed a discrimination complaint against a Catholic school board - The Human Rights Commission Director dismissed the complaint but the Commission Chief decided the complaint should not have been dismissed and referred it to a human rights tribunal - The school board applied for judicial review, arguing that the Chief erred in finding that the constitutional issues raised in this case could be left to the tribunal - The Alberta Court of Queen's Bench stated that the Chief and tribunal were entitled to consider the constitutional context, the legislative and other facts in play that defined the constitutional dilemma, and to consider what constitutional issues arose, so long as the tribunal did not make constitutional decisions - Those questions could be referred to the Court of Queen's Bench for decision, once the necessary factual and legal matrix was determined - The Chief viewed his task as not to decide the issues underlying his decision to proceed to the next stage; those he left to the tribunal - Rather than focus solely on the merits of the complaint, the Chief decided to appoint a tribunal to determine whether or not the actions of the school board were in breach of the Alberta Human Rights Act - That provided a reasonable basis for the Chief's decision - See paragraphs 168 to 176.

Civil Rights - Topic 7044.1

Federal, provincial or territorial legislation - Commissions or boards - General - Role of commissioner, chairperson, etc. - [See both Civil Rights - Topic 7044.2 ].

Civil Rights - Topic 7044.2

Federal or provincial legislation - Commissions or boards - Role of Director - Section 22(1) of the Alberta Human Rights Act provided that "... the Director may at any time: (a) dismiss a complaint ... (b) discontinue the proceedings ... or (c) report to the Chief of the Commission and Tribunals that the parties are unable to settle the complaint" - Sections 26 of the Act dealt with what was required of the Chief where a complainant requested a review of a decision by the Director to dismiss or discontinue a complaint under s. 22 - Section 27(1) set out when the Chief was required to appoint a human rights tribunal - The Alberta Court of Queen's Bench interpreted these provisions and when the Director became functus officio - The court held that those sections were a complete code for the authority of the Director and Chief to deal with a complaint - The court rejected an argument that the phrase "at any time" in s. 22 allowed the complaint to circle back to the Director for discontinuance "at any time", even after the Chief made a decision to refer a matter to a tribunal - See paragraphs 102 to 121.

Civil Rights - Topic 7044.2

Federal or provincial legislation - Commissions or boards - Role of Director - The complainant filed a discrimination complaint against a school board - The Human Rights Commission Director dismissed the complaint but the Commission Chief overturned the decision and referred the case to a human rights tribunal - In the meantime, the school board queried of the Director as to whether, if the Chief ruled that he erred in dismissing the complaint, he would exercise his authority to (a) declare that the complaint was settled or (b) discontinue the proceedings because the complainant refused to accept a fair and reasonable settlement proposal - The Director replied by letter that he did not have the authority to reconsider a decision to dismiss a complaint - The school board applied for judicial review - The Alberta Court of Queen's Bench held that the application was statute barred, but opined that the Director's decision on his authority to reconsider was based on a reasonable interpretation of the applicable legislation and also the correct one - See paragraphs 99 to 121.

Civil Rights - Topic 7078

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Reconsideration of decisions (incl. reopening of hearings) - [See second Civil Rights - Topic 7044.2

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review - Standard of review - A Catholic school board removed the complainant's name from its substitute teacher list after being advised that the complainant had been diagnosed with transgenderism and would proceed with gender transition - The complainant filed a discrimination complaint - The Director of the Alberta Human Rights Commission dismissed the complaint but the Chief of the Commission and Tribunals decided the complaint should not have been dismissed and referred it to a human rights tribunal - The school board applied for judicial review - The Alberta Court of Queen's Bench discussed the standards of review applicable - See paragraphs 23 to 58.

Civil Rights - Topic 7118

Federal, provincial or territorial legislation - Practice - Limitation period - [See Administrative Law - Topic 3342 ].

Civil Rights - Topic 7162

Federal, provincial or territorial legislation - Application - Exceptions - Conflict with Constitution - [See fourth Civil Rights - Topic 7044.1 ].

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - [See fifth Civil Rights - Topic 7044.1 ].

Words and Phrases

At any time - The Alberta Court of Queen's Bench discussed the meaning of this phrase as it appeared in s. 22(1) of the Alberta Human Rights Act, R.S.A. 2000, c. A-25.5 - See paragraphs 102 to 121.

Words and Phrases

Or - The Alberta Court of Queen's Bench discussed the meaning of the word "or" as it appeared in s. 22(1) of the Alberta Human Rights Act, R.S.A. 2000, c. A-25.5 - See paragraphs 102 to 121.

Cases Noticed:

Caldwell v. Stuart, [1984] 2 S.C.R. 603; 56 N.R. 83, refd to. [para. 10].

Casagrande v. Hinton Roman Catholic Separate School District No. 155 (1987), 79 A.R. 241, refd to. [para. 10].

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. 23].

Alberta Teachers' Association v. Northern Lights School Division No. 69 (2013), 559 A.R. 371; 2013 ABQB 220, refd to. [para. 24].

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. 26].

McLean v. British Columbia Securities Commission (2013), 347 B.C.A.C. 1; 593 W.A.C. 1; 452 N.R. 340; 2013 SCC 67, refd to. [para. 32].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 35].

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. 36].

Callan v. Suncor Inc. et al. (2006), 380 A.R. 247; 363 W.A.C. 247; 2006 ABCA 15, refd to. [para. 44].

Caron v. Human Rights Commission (Alta.) et al. (2013), 551 A.R. 355; 2013 ABQB 13, refd to. [para. 44].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 54].

Nguyen v. Workers' Compensation Board Appeals Commission (Alta.) (2008), 470 A.R. 1; 2008 ABQB 624, refd to. [para. 62].

Johannesson v. Workers' Compensation Board Appeals Commission (Alta.) (1995), 175 A.R. 34 (Q.B.), refd to. [para. 62].

Brochu et al. v. Grande Prairie (City) et al. (2004), 358 A.R. 220; 2004 ABQB 182, refd to. [para. 63].

Syncrude Canada Ltd. v. Human Rights and Citizenship Commission (Alta.) et al. (2008), 432 A.R. 333; 424 W.A.C. 333; 2008 ABCA 217, refd to. [para. 83].

Canadian Museum of Civilization Corp. v. Public Service Alliance of Canada, Local 70396 et al. (2006), 294 F.T.R. 163; 2006 FC 703, refd to. [para. 89].

Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; 99 N.R. 277; 101 A.R. 321, refd to. [para. 89].

McKenzie Forest Products Inc. v. Human Rights Commission (Ont.) et al. (2000), 131 O.A.C. 165; 48 O.R.(3d) 150 (C.A.), refd to. [para. 90].

Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161, refd to. [para. 90].

Philipps v. Librarian and Archivist of Canada, [2007] 4 F.C.R. 11; 303 F.T.R. 84; 2006 FC 1378, refd to. [para. 95].

McElheron v. Murray's Trucking Inc., 2011 AHRC 1, refd to. [para. 119].

Board of Education of Sturgeon School Division No. 24 et al. v. Alberta et al. (2000), 272 A.R. 190, refd to. [para. 136].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 147].

Public School Boards Association (Alta.) v. Alberta (Attorney General) et al., [2000] 2 S.C.R. 409; 260 N.R. 127; 266 A.R. 201; 228 W.A.C. 201; 2000 SCC 45, refd to. [para. 158].

Coward v. Human Rights and Citizenship Commission (Alta.) (2008), 455 A.R. 177; 2008 ABQB 455, refd to. [para. 169].

Statutes Noticed:

Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3, sect. 11 [para. 170].

Administrative Procedures and Jurisdiction Act Regulations (Alta.), Designation of Constitutional Decision Makers Regulation, A.R. 69/2006, sect. 2 [para. 23].

Alberta Human Rights Act, R.S.A. 2000, c. A-25.5, sect. 7(1), sect. 7(3) [para. 22]; sect. 22(1) [para. 102]; sect. 26(1), sect. 26(3), sect. 27(1) [para. 108].

Canadian Charter of Rights and Freedoms, 1982, sect. 29 [para. 153].

Designation of Constitutional Decision Makers Regulation - see Administrative Procedures and Jurisdiction Act Regulations (Alta.).

Authors and Works Noticed:

Anderson, Sandra M., Venerable Rights, Constitutionalizing Alberta's Schools 1869 - 1905, in Connors, Richard and Law, John M., Forging Alberta's Constitutional Framework (2005), generally [para. 149].

Connors, Richard and Law, John M., Forging Alberta's Constitutional Framework (2005), generally [para. 149].

Driedger, Elmer, The Construction of Statutes (2nd Ed. 1983), generally [para. 81].

Counsel:

Kevin Feehan, Q.C., and Trevor J. Goulet (Dentons Canada LLP), for the appellant;

Leanne M. Chahley (Blair Chahley Lawyers), for the respondent, Jan Buterman;

Janice R. Ashcroft (Alberta Human Rights Commission), for the Chief of the Commission and Tribunals;

Arman M. Chak (Alberta Human Rights Commission), for the Director, Alberta Human Rights Commission.

This application was heard on December 9 to 12, 2013, before Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on January 8, 2014.