Small v. Caritas Health Group et al., (2003) 347 A.R. 322 (QB)

• Judge: Sulyma, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 29, 2003
• Citations: (2003), 347 A.R. 322 (QB);2003 ABQB 968

Small v. Caritas Health (2003), 347 A.R. 322 (QB)

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. DE.084

Marilyn J. Small (applicant) v. Caritas Health Group, Grey Nuns Community and Health Care Centre, and the Chief Commissioner of the Alberta Human Rights and Citizenship Commission (respondents)

(0003-08413; 2003 ABQB 968)

Indexed As: Small v. Caritas Health Group et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Sulyma, J.

November 27, 2003.

Summary:

Small complained that her employment was terminated on the grounds of physical or mental disability contrary to the Human Rights, Citizenship and Multiculturalism Act. The Director of the Alberta Human Rights and Citizenship Commission, based on an Investigator's recommendation that the complaint be dismissed, dismissed the complaint. The Chief Commissioner upheld that decision. Small applied for judicial review.

The Alberta Court of Queen's Bench allowed the application and remitted the matter to the Chief Commissioner to answer the correct question, whether there was a reasonable basis to send the complaint to an human rights panel for a full hearing.

Civil Rights - Topic 7042

Federal, provincial or territorial legislation - Commissions or boards - Right to tribunal - Small complained that her termination constituted discrimination on the basis of physical or mental disability - An Investigator's report recommended dismissal of the complaint without hearing - The Director of the Alberta Human Rights and Citizenship Commission accepted the recommendation and dismissed the complaint - The Chief Commissioner upheld that decision - The Alberta Court of Queen's Bench allowed a judicial review application and remitted the matter to the Chief Commissioner to answer the correct question, whether there was a reasonable basis to send the complaint to a human rights panel for a full hearing - The Chief Commissioner exceeded his gate-keeper function to send to a human rights panel complaints having some merit - The Chief Commissioner erred in finding facts and balancing probabilities to reach a conclusion on the merits of the complaint, which he was not permitted to do.

Civil Rights - Topic 7044.1

Federal, provincial or territorial legislation - Commissions or boards - General - Role of commissioner - [See Civil Rights - Topic 7042 ].

Civil Rights - Topic 7110

Federal, provincial or territorial legislation - Practice - Evidence and proof - [See Civil Rights - Topic 7042 ].

Cases Noticed:

Mis v. Human Rights and Citizenship Commission (Alta.) (2002), 326 A.R. 99; 2002 ABQB 570, refd to. [para. 11].

Mis v. Human Rights and Citizenship Commission (Alta.) (2000), 279 A.R. 168; 2000 ABQB 860, refd to. [para. 12].

Mis v. Human Rights and Citizenship Commission (Alta.) (2001), 293 A.R. 391; 257 W.A.C. 391; 2001 ABCA 212, refd to. [para. 13].

Syndicat des employés de production du Québec et de l'Acadie v. Commission des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 15].

Robinson v. Canadian Human Rights Commission (1995), 90 F.T.R. 43 (T.D.), refd to. [para. 16].

Maple Lodge Farms Ltd. v. Canada and Canada (Minister of Economic Development), [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 17].

Ryan v. Law Society of New Brunswick (2003), 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 223 D.L.R.(4th) 577; 2003 SCC 20, refd to. [para. 17].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 50].

Renaud v. Board of Education of Central Okanagan No. 23 and Canadian Union of Public Employees, Local 523, [1992] 2 S.C.R. 970; 141 N.R. 185; 13 B.C.A.C. 245; 24 W.A.C. 245; 95 D.L.R.(4th) 577, refd to. [para. 50].

Economic Development Edmonton v. Baah et al. (2003), 336 A.R. 280; 2003 ABQB 721, refd to. [para. 57].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 59].

Statutes Noticed:

Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, sect. 7(1) [para. 6].

Counsel:

A.R. Gray, for the applicant;

F.A. Day, Q.C., for the respondent, Grey Nuns Community and Health Care Centre;

A. Dean, for the respondent, Alberta Human Rights and Citizenship Commission.

This application was heard on August 29, 2003, before Sulyma, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on November 27, 2003.