St. Albert and Area Student Health Initiative Partnership et al. v. Polczer et al., (2007) 447 A.R. 27 (QB)

• Judge: Gill, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 28, 2007
• Citations: (2007), 447 A.R. 27 (QB);2007 ABQB 692

St. Albert Student Health v. Polczer (2007), 447 A.R. 27 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. NO.133

In The Matter Of a Complaint Before the Alberta Human Rights and Citizenship Commission Complaint N2004/08/0171

The St. Albert and Area Student Health Initiative Partnership (applicant) v. Sylvia Polczer on behalf of James Dylan Polczer, The Chief Commissioner of the Alberta Human Rights and Citizenship Commission, The Greater St. Albert Catholic Regional Division No. 29, Her Majesty the Queen in Right of Alberta as represented by The Minister of Health and Wellness, The Minister of Children's Services and The Minister of Education and Capital Health (respondents)

(0703 09365)

Her Majesty the Queen in Right of Alberta as represented by The Minister of Education (applicant) v. Sylvia Polczer on behalf of James Dylan Polczer, The Chief Commissioner of the Alberta Human Rights and Citizenship Commission, The Greater St. Albert Catholic Regional Division No. 29 and The St. Albert and Area Student Health Initiative (respondents)

(0703 05147; 2007 ABQB 692)

Indexed As: St. Albert and Area Student Health Initiative Partnership et al. v. Polczer et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Gill, J.

November 20, 2007.

Summary:

The mother of a school-age autistic child filed a discrimination complaint against the Greater St. Albert Catholic Regional Division No. 29 (the GSACRD), a school board. The mother said that the GSACRD discriminated against her child by denying goods, services, accommodation or facilities on the basis of mental disability contrary to s. 4 of the Human Rights, Citizenship and Multiculturalism Act (Alta.). The mother subsequently added the Alberta Minister of Education (Alberta Education) and the St. Albert and Area Student Health Initiative Partnership (the St. Albert Partnership) to the complaint. The Director of the Alberta Human Rights and Citizenship Commission dismissed the complaint. Upon review, the Commission's Chief Commissioner overturned the Director's decision and appointed a panel to hear the complaint. Alberta Education and the St. Albert Partnership brought applications for judicial review.

The Alberta Court of Queen's Bench dismissed Alberta Education's application and allowed St. Albert Partnership's application.

Civil Rights - Topic 7044.1

Federal, provincial or territorial legislation - Commissions or boards - General - Role of commissioner, chairperson, etc. - The mother of an autistic school-age child filed a discrimination complaint against parties which included the Alberta Minister of Education (Alberta Education) - The Director of the Alberta Human Rights and Citizenship Commission dismissed the complaint - The Chief Commissioner overturned the decision and appointed a panel to hear the complaint - The Alberta Court of Queen's Bench upheld the decision as reasonable and held as follows: "While it perhaps would have been preferable for the Chief Commissioner to have styled his reasons in the framework of the test as to whether the evidence provides a reasonable basis for the complaint to proceed to a human rights panel as against each party, there can be no doubt that his reasons demonstrate that he posed the right question and carried out his statutory function of undertaking a documentary file review and determining that the evidence provided a reasonable basis for the complaint against Alberta Education to proceed to a human rights panel" - See paragraphs 38 to 75.

Civil Rights - Topic 7115

Federal, provincial or territorial legislation - Practice - Judicial review (incl. standard of review) - [See Civil Rights - Topic 7044.1 and Civil Rights - Topic 7118 ].

Civil Rights - Topic 7118

Federal, provincial or territorial legislation - Practice - Limitation period - On August 16, 2004, the Greater St. Albert Catholic Regional Division No. 29 (the GSACRD), a school board, advised the mother of a school-age autistic child that it would not provide the child with speech and language therapy - The mother filed a discrimination complaint against the GSACRD and, on August 23, 2005, added the St. Albert and Area Student Health Initiative Partnership (the St. Albert Partnership) to the complaint - Section 20(2)(b) of the Human Rights, Citizenship and Multiculturalism Act (Alta.) provided that a complaint had to "be made within one year after the alleged contravention of the Act occurs" - The Chief Commissioner appointed a panel to hear the complaint - The St. Albert Partnership sought judicial review, arguing that the complaint as against it was barred - The mother replied that her complaint was timely since her child was allegedly discriminated against on each day of the 2004-2005 school year - The Alberta Court of Queen's Bench rejected the mother's argument and quashed, as incorrect, the Chief Commissioner's decision appointing a panel - There was a distinction between actions constituting discrimination and the effects of discrimination - Here, the act allegedly constituting discrimination occurred on August 16, 2004, when the GSACRD advised the mother - The non-receipt of services during the school year was the effect of the alleged discrimination - Section 20(2)(b) was an absolute bar to complaints made beyond the provided one-year period - See paragraphs 77 to 88.

Cases Noticed:

Gwinner et al. v. Alberta (2002), 321 A.R. 279; 2002 ABQB 685, affd. (2004), 354 A.R. 21; 329 W.A.C. 21; 245 D.L.R.(4th) 158 (C.A.), consd. [para. 37].

Economic Development Edmonton v. Wong et al., [2004] A.R. Uned. 747; 2004 ABQB 546, consd. [para. 39].

Economic Development Edmonton v. Wong et al. (2005), 371 A.R. 362; 354 W.A.C. 362; 2005 ABCA 278, consd. [para. 40].

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, consd. [para. 44].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, consd. [para. 44].

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, consd. [para. 44].

Alberta (Minister of Human Resources and Employment) v. Director of the Human Rights, Citizenship and Multiculturalism Commission (Alta.) et al. (2006), 391 A.R. 31; 377 W.A.C. 31; 2006 ABCA 235, refd to. [para. 51].

Callan v. Suncor Inc. et al. (2006), 380 A.R. 247; 363 W.A.C. 247; 2006 ABCA 15, refd to. [para. 51].

Skeffington v. Human Rights and Citizenship Commission (Alta.) et al., [2006] A.R. Uned. 664; 2006 ABQB 776, refd to. [para. 51].

Economic Development Edmonton v. Baah et al., [2005] A.R. Uned. 245; 2005 ABCA 279, affing. (2003), 336 A.R. 280; 2003 ABQB 721, refd to. [para. 51].

Neumann v. Human Rights and Citizenship Commission (Alta.) et al., [2005] A.R. Uned. 753; 2005 ABQB 694, refd to. [para. 51].

Calgary (City) v. Cabalde (2003), 320 A.R. 314; 288 W.A.C. 314; 2003 ABCA 39, refd to. [para. 51].

Calgary (City) v. Human Rights and Citizenship Commission (Alta.) - see Calgary (City) v. Cabalde.

Bigsby v. Human Rights and Citizenship Commission (Alta.) et al. (2002), 318 A.R. 144; 2002 ABQB 574, refd to. [para. 51].

Hamilton v. Board of Education of Wild Rose School Division No. 66 et al. (2002), 314 A.R. 340; 2002 ABQB 428, refd to. [para. 51].

Hamilton v. Human Rights and Citizenship Commission (Alta.) - see Hamilton v. Board of Education of Wild Rose School Division No. 66 et al.

Mis v. Human Rights and Citizenship Commission (Alta.) (2001), 293 A.R. 391; 257 W.A.C. 391; 2001 ABCA 212, refd to. [para. 51].

Duffy v. Human Rights and Citizenship Commission (Alta.) (2001), 301 A.R. 236; 2001 ABQB 541, refd to. [para. 51].

Calgary (City) v. Cabalde (2000), 287 A.R. 249; 2000 ABQB 712, refd to. [para. 51].

Sheptycki v. Human Rights and Citizenship Commission (Alta.), [1999] A.J. No. 1929 (Q.B.), refd to. [para. 51].

United Nurses of Alberta, Local 115 v. Calgary Health Authority (Foothills Medical Centre) (2004), 339 A.R. 265; 312 W.A.C. 265; 2004 ABCA 7, consd. [para. 53].

Walsh v. Mobil Oil Canada et al., [2007] A.R. Uned. 257; 2007 ABQB 305, consd. [para. 80].

Bugis v. University Hospitals Board (1989), 95 A.R. 45 (Q.B.), refd to. [para. 86].

Bugis, Re - see Bugis v. University Hospitals Board.

Greenwood v. Workers' Compensation Board (Alta.) (2000), 275 A.R. 1; 2000 ABQB 827, refd to. [para. 86].

Allen v. Human Rights Commission (Alta.) (2005), 376 A.R. 199; 360 W.A.C. 199; 2005 ABCA 436, refd to. [para. 86].

Statutes Noticed:

Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, sect. 20(2)(b) [para. 28].

Counsel:

Colin R. Fetter and Kirsten M. Leger (Brownlee LLP), for the applicants;

Audrey Dean (Alberta Human Rights Commission), for the respondent, Chief Commissioner of the Alberta Human Rights & Citizenship Commission;

Sean McDonough (Alberta Justice, Civil Law Branch), for the respondent, Her Majesty the Queen as represented by the Minister of Education;

Sylvia Polczer, for the respondent, James Dylan Polczer.

This application was heard on September 28, 2007, by Gill, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on November 20, 2007.