Greater St. Albert Roman Catholic Separate School District No. 734 v. Buterman, 2013 ABQB 485

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 22, 2013
• Citations: 2013 ABQB 485;(2013), 570 A.R. 19 (QB)

R.C. Sep. Sch. Bd. v. Buterman (2013), 570 A.R. 19 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. AU.103

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; 2013 ABQB 485)

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.

August 26, 2013.

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. Buterman 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, seeking an order in the nature of certiorari to set aside the decision of the Chief. In the alternative, the school board sought an order directing the Chief to order the Director to consider whether the parties entered into a settlement agreement and whether Buterman refused to accept a proposed settlement offer that was fair and reasonable. In the second alternative, the school board sought an order in the nature of mandamus requiring the Director to consider the settlement issues. The Director applied under rule 3.68(1)(a) of the Alberta Rules of Court to strike out the originating application insofar as it challenged his actions or sought a remedy against him. The Director contended that it was plain and obvious the school board's application would fail as it was brought beyond the six month time limitation set out in the Rules. He submitted that, in any event, the remedy sought of referral back to him for action under s. 29(1) of the Alberta Human Rights Act was not available since he was functus officio from and after referral of the complaint to the Chair, many months before the originating application was filed. Buterman supported the Director's application as he contended that actions of the Director were not amenable to judicial review. The school board responded that the Director did not have standing to bring this application to strike, its judicial review application was not amenable to striking out under rule 3.68(1)(a), and the Director's application was otherwise without merit. The school board subsequently applied for an order requiring the Director to produce a certified record and that the Chief file an expanded record.

The Alberta Court of Queen's Bench dismissed the school board's challenge to the Director's standing to participate in the proceedings respecting the remedies sought against him. The Director's application to strike the school board's originating application was dismissed. The issues raised by the Director concerning the timeliness of the originating application and whether he was functus officio would be dealt with along with the merits of the originating application, as would the issue of whether the Director's decisions were amenable to judicial review. The school board's application for a further and better production of a certified record by the Chief was dismissed. The school board's application for production of a certified record by the Director was granted.

Administrative Law - Topic 3357

Judicial review - General - Practice - Interlocutory proceedings (incl. application to strike) - A teacher filed a discrimination complaint against a school board - The Director of the Alberta Human Rights Commission dismissed the complaint but the Chief of the Commission and Tribunals disagreed and referred the complaint to a human rights tribunal - The school board filed an originating application for judicial review of both decisions - The Director applied to strike the application (Alberta Rules of Court, rule 3.68(1)(a)) - The Alberta Court of Queen's Bench stated that although it was doubtful whether a s. 3.68(1) application to strike should be available for judicial review applications, the court would nevertheless dispose of the application on the merits - In the result, the court dismissed the application to strike - It was not plain and obvious that the court lacked jurisdiction to grant judicial review against the Director, that the application did not disclose a reasonable claim, that the originating notice was frivolous or improper or was an abuse of the court's process - See paragraphs 53 to 81.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - A teacher filed a discrimination complaint against a school board - The Director of the Alberta Human Rights Commission dismissed the complaint but the Chief of the Commission and Tribunals disagreed and referred the complaint to a human rights tribunal - The school board applied for judicial review of both decisions - The Director applied to strike the application - The school board raised a standing issue - The Alberta Court of Queen's Bench held that the Director did not have standing to argue the merits of the judicial review application - However, the Director had standing to argue the narrow issues that concerned his role in the administration of the Human Rights Act and, specifically, whether he was required to consider settlement issues when dismissing the complaint before the Chief could advance the complaint to tribunal - The Director could also make submissions on limitation period issues and respecting whether any of his decisions or actions were amenable to judicial review at all - See paragraphs 33 to 52.

Civil Rights - Topic 7044.2

Federal or provincial legislation - Commissions or boards - Role of Director - [See Administrative Law - Topic 3357 and Administrative Law - Topic 8843 ].

Practice - Topic 2494

Writ of summons, endorsements, originating summons and originating notices - Originating notices - Striking out - [See Administrative Law - Topic 3357 ].

Cases Noticed:

Brewer v. Fraser Milner Casgrain LLP et al. (2008), 432 A.R. 188; 424 W.A.C. 188; 2008 ABCA 160, refd to. [para. 36].

Nguyen v. Workers' Compensation Board Appeals Commission (Alta.) (2008), 470 A.R. 1; 2008 ABQB 624, refd to. [para. 38].

Johannesson v. Workers' Compensation Board Appeals Commission (Alta.) (1995), 175 A.R. 34 (Q.B.), refd to. [para. 38].

Brochu et al. v. Grande Prairie (City) et al. (2004), 358 A.R. 220; 2004 ABQB 182, refd to. [para. 40].

1447743 Alberta Ltd. v. Calgary (City) et al. (2011), 502 A.R. 330; 517 W.A.C. 330; 2011 ABCA 84, refd to. [para. 44].

Canadian Union of Public Employees, Local 8 et al. v. Health Region No. 4 (1997), 200 A.R. 175; 146 W.A.C. 175 (C.A.), refd to. [para. 54].

Mis v. Human Rights and Citizenship Commission (Alta.) (2001), 293 A.R. 391; 257 W.A.C. 391; 2001 ABCA 212, refd to. [para. 59].

Gateway Charters Ltd. v. Edmonton (City) (2012), 522 A.R. 56; 544 W.A.C. 56; 2012 ABCA 93, refd to. [para. 61].

Eastaugh v. Halat et al. (2009), 448 A.R. 377; 447 W.A.C. 377; 2009 ABCA 122, refd to. [para. 62].

Young Estate et al. v. TransAlta Utilities Corp. et al. (1997), 209 A.R. 89; 160 W.A.C. 89 (C.A.), refd to. [para. 62].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, refd to. [para. 64].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 64].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 64].

Tranchemontagne v. Disability Support Program (Ont.) et al., [2006] 1 S.C.R. 513; 347 N.R. 144; 210 O.A.C. 267; 2006 SCC 14, refd to. [para. 65].

Donaldson v. Farrell et al., [2011] A.R. Uned. 51; 2011 ABQB 11, refd to. [para. 70].

Wanke v. University of Calgary, [2011] A.R. Uned. 354; 2011 ABCA 235, refd to. [para. 70].

Canada Deposit Insurance Corp. et al. v. Prisco et al. (1994), 158 A.R. 305 (Q.B.), refd to. [para. 72].

P.L. v. Alberta et al. (2012), 529 A.R. 21; 2012 ABQB 309, refd to. [para. 75].

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 2000 ABCA 121, refd to. [para. 76].

Reece et al. v. Edmonton (City) (2011), 513 A.R. 199; 530 W.A.C. 199; 2011 ABCA 238, refd to. [para. 78].

IMS Health Canada Ltd. v. Information & Privacy Commissioner (2005), 376 A.R. 336; 360 W.A.C. 336; 2005 ABCA 325, refd to. [para. 83].

Silverman v. Human Rights Commission (Alta.) et al., [2012] A.R. Uned. 216; 2012 ABQB 152, refd to. [para. 84].

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. 85].

Statutes Noticed:

Alberta Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, sect. 7, sect. 22(1), sect. 44(1) [para. 29].

Rules of Court (Alta.), rule 753.14(1) [para. 31].

Rules of Court (Alta.) 2010, rule 1.2, rule 3.15, rule 3.19, rule 3.20, 3.68 [para. 30].

Authors and Works Noticed:

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th Ed.), generally [para. 11].

Stevenson, Vivian, and Côté, Jean E., Alberta Civil Procedure Handbook 2012 (2012), vol. 1, p. 3-104 [para. 72].

Counsel:

Kevin P. Feehan, Q.C., and Trevor J. Goulet (Dentons Canada LLP), for The Board of Trustees of The Greater St. Albert Roman Catholic Separate School District No. 734;

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

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

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

This application was heard on May 22, 2013, before Greckol, J., of the Alberta Court of Queen's Bench, Judicial Centre of Edmonton, who delivered the following decision on August 26, 2013.