Mis v. Human Rights and Citizenship Commission (Alta.), 2002 ABQB 570

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 12, 2002
• Citations: 2002 ABQB 570;(2002), 326 A.R. 99 (QB)

Mis v. HRC (2002), 326 A.R. 99 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. NO.049

Walter Mis (applicant) v. The Chief Commissioner of The Alberta Human Rights and Citizenship Commission (respondent)

(Action No. 0203 03104; 2002 ABQB 570)

Indexed As: Mis v. Human Rights and Citizenship Commission (Alta.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

October 29, 2002.

Summary:

Mis complained under the Human Rights, Citizenship and Multiculturalism Act that the University of Alberta pension plan discriminated against him on the basis of gender and marital status. An investigator determined that Mis had been discriminated against based on gender and that the discrimination was neither reasonable nor justified pursuant to s. 11 of the Act. The Director of the Alberta Human Rights and Citizenship Commission dismissed the complaint. She concluded that even though there was gender discrimination, it was reasonable and justifiable. The Chief Commissioner agreed with the Director and dismissed the complaint. Mis applied for judicial review.

The Alberta Court of Queen's Bench, in a decision reported at 279 A.R. 168, quashed the decision and sent the matter to the Director for reconsideration. The court held that the Director and Chief Commissioner played a gatekeeping role and that their decisions did not disclose whether they had asked themselves the correct question, i.e., whether the complaint was without merit. The court returned the complaint to the Director for consideration of the correct question. The Commission appealed.

The Alberta Court of Appeal, in a decision reported at 293 A.R. 391; 257 W.A.C. 391, dismissed the appeal, with the exception that the matter was returned to the Chief Commissioner instead of the Director.

The Chief Commissioner reconsidered the matter and upheld the dismissal of the complaint as being without merit. Mis applied for judicial review of the Chief Commissioner's decision.

The Alberta Court of Queen's Bench allowed the application. The court held that there was a sufficient basis in the evidence that the Chief Commissioner ought to have advanced the matter to the next stage. The matter was returned to the Chief Commissioner to do so.

Civil Rights - Topic 903

Discrimination - General principles - Elements - In Law v. M.E.I. (S.C.C.), a case dealing with s. 15(1) of the Charter, it was established that an adverse distinction based on an enumerated or analogous ground did not necessarily constitute discrimination and that the distinction must be such that it impaired human dignity - The Alberta Court of Queen's Bench held that that analysis should apply not only to s. 15(1) of the Charter but also to Alberta's human rights legislation, given that they both had a common intent - See paragraphs 69 to 70.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - The Chief Commissioner of the Alberta Human Rights and Citizenship Commission upheld the dismissal of Mis's complaint of gender discrimination in relation to the University of Alberta pension plan as being without merit - The Chief Commissioner considered, inter alia, that there was no evidence to show that the pension plan harmed Mis's human dignity as required by Law v. M.E.I. (S.C.C.) - In allowing an application for judicial review, the Alberta Court of Queen's Bench held that the requirement in Law that human dignity be affected did not necessarily demand that evidence of such be presented - A prima facie case might be established on the basis of an adverse distinction based on an enumerated ground and logical reasoning - It was at least arguable that Mis's human dignity was affected by his receipt of a lesser pension benefit than a female would receive in similar circumstances and that that constituted discrimination - See paragraph 112.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - The Chief Commissioner of the Alberta Human Rights and Citizenship Commission upheld the dismissal of Mis's complaint of gender discrimination in relation to the University of Alberta pension plan as being without merit - The Chief Commissioner concluded, inter alia, that all group pension plans had inherent discriminatory features based on gender and there was no evidence that a non-discriminatory pension scheme existed or that the alternatives which had been offered by an investigator would be more fair for all concerned - On an application for judicial review, the Alberta Court of Queen's Bench held that the Chief Commissioner's finding was unreasonable - The onus under s. 11 of the Human Rights, Citizenship and Multiculturalism Act to establish that the discrimination was reasonable or justified was on those who defended the pension plan and they had to establish that there was no practical alternative - Mis was not required to provide evidence of a nondiscriminatory plan - See paragraph 114.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - The Chief Commissioner of the Alberta Human Rights and Citizenship Commission upheld the dismissal of Mis's complaint of gender discrimination in relation to the University of Alberta pension plan as being without merit - The Chief Commissioner considered, inter alia, that all group pension plans had inherent discriminatory features based on gender and there was no evidence that a non-discriminatory pension scheme existed - On an application for judicial review, the Alberta Court of Queen's Bench held that the Chief Commissioner's decision was unreasonable because, inter alia, he erred in concluding that there must be evidence that a non-discriminatory pension scheme existed - The test was whether there was a practical alternative - See paragraph 104.

Civil Rights - Topic 987

Discrimination - Employment - On basis of sex - [See all Civil Rights - Topic 999.5 ].

Civil Rights - Topic 999.5

Discrimination - Employment - Pension benefits - Section 7(1) of the Human Rights, Citizenship and Multiculturalism Act listed grounds in respect of which an employer could not discriminate - Section 7(2) indicated that s. 7(1) "as it relates to age and marital status" did not affect the operation of any bona fide pension plan - The Chief Commissioner of the Alberta Human Rights and Citizenship Commission upheld the dismissal of a complaint of gender discrimination in relation to a pension plan as being without merit - The Chief Commissioner concluded, inter alia, that gender was analogous to the grounds of "age" and "marital status" found in s. 7(2) and similarly should be regarded as exempt from the prohibition in s. 7(1) - On an application for judicial review, the Alberta Court of Queen's Bench held that the Chief Commissioner erred in concluding that gender was analogous to the grounds of age and marital status found in s. 7(2) - See paragraphs 54 to 61.

Civil Rights - Topic 999.5

Discrimination - Employment - Pension benefits - The Chief Commissioner of the Alberta Human Rights and Citizenship Commission upheld the dismissal of Mis's complaint of gender discrimination in relation to the University of Alberta pension plan as being without merit - Mis had complained that the spousal form of the pension resulted in a reduction of his entitlement based on the statistical fact that on average women lived longer than men and that there was no corresponding reduction for a female beneficiary with a spouse under the plan - The Chief Commissioner concluded, inter alia, that all group pension plans had inherent discriminatory features based on gender - On an application for judicial review, the Alberta Court of Queen's Bench held that the Chief Commissioner's decision was unreasonable because, inter alia, he focused on the statistical fact that women lived longer than men without taking into consideration that Mis had complained of discrimination in a situation where the joint lives of the male employee and his spouse were the same as the joint lives of the female employee and her spouse - See paragraph 104.

Civil Rights - Topic 999.5

Discrimination - Employment - Pension benefits - The Chief Commissioner of the Alberta Human Rights and Citizenship Commission upheld the dismissal of Mis's complaint of gender discrimination in relation to the University of Alberta pension plan as being without merit - The Chief Commissioner concluded, inter alia, that all group pension plans had inherent discriminatory features based on gender and there was no evidence that a non-discriminatory pension scheme existed or that the alternatives which had been offered by an investigator would be more fair for all concerned - On an application for judicial review, the Alberta Court of Queen's Bench held that the Chief Commissioner failed to consider the evidence of other pension plans which arguably were either less or non-discriminatory - The Chief Commissioner also failed to consider that a plan could still be regarded as fair even if it had an adverse effect on another group, if that adverse effect was simply an elimination of an undeserved advantage received by that other group - See paragraphs 115 to 116.

Civil Rights - Topic 7044.1

Federal or provincial legislation - Commissions or boards - General - Role of Commissioner - Mis applied for judicial review of a decision of the Chief Commissioner of the Human Rights and Citizenship Commission dismissing his complaint of gender discrimination as being "without merit" - With respect to the standard of review, the Alberta Court of Queen's Bench stated that "[t]he function of the Chief Commissioner is that of a gatekeeper. His role is to determine if there is sufficient evidence to justify passing a complaint on to a human rights panel. It was never intended that the Chief Commissioner act as an adjudicator of the matter. Any expertise with which the Chief Commissioner is credited is limited to an assessment of the facts. His decisions in that regard attract a standard of review of reasonableness simpliciter. On matters of law, the Chief Commissioner must be correct" - See paragraph 52.

Civil Rights - Topic 7048

Federal or provincial legislation - Commissions or boards - General - Appointment of tribunal - The Chief Commissioner of the Alberta Human Rights and Citizenship Commission upheld the dismissal of Mis's complaint of gender discrimination in relation to the University of Alberta pension plan as being without merit - The Chief Commissioner considered, inter alia, that there was no evidence to show the pension plan harmed Mis's human dignity as required by Law v. M.E.I. (S.C.C.) - On an application for judicial review, the Alberta Court of Queen's Bench held that while it was appropriate to apply the Law analysis in this case, the guidelines formulated in Law for identifying discrimination could not be applied in a summary fashion and without a full examination of the context surrounding the claim - Evidence of adverse differential treatment based on an enumerated ground was sufficient to meet the threshold assessment of merit to establish a basis for proceeding to the next step - See paragraphs 62 to 84.

Civil Rights - Topic 7110

Federal or provincial legislation - Practice - Evidence and proof - [See all Civil Rights - Topic 907 ].

Civil Rights - Topic 7115

Federal or provincial legislation - Practice - Judicial review - [See Civil Rights - Topic 7044.1 ].

Cases Noticed:

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81, refd to. [para. 17].

Co-operators General Insurance Co. v. Human Rights Commission (Alta.) et al. (1993), 145 A.R. 132; 55 W.A.C. 132; 14 Alta. L.R.(3d) 169, leave to appeal refused (1994), 176 N.R. 317; 162 A.R. 318; 83 W.A.C. 318 (S.C.C.), refd to. [para. 19].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, consd. [para. 23].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, appld. [para. 36].

Calgary (City) v. Cabalde (2000), 287 A.R. 249 (Q.B.), refd to. [para. 39].

Duffy v. Human Rights and Citizenship Commission (Alta.) (2001), 301 A.R. 236 (Q.B.), refd to. [para. 40].

Bigsby v. Human Rights and Citizenship Commission (Alta.) (2002), 318 A.R. 144 (Q.B.), refd to. [para. 41].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 42].

Bell v. Canadian Human Rights Commission - see Cooper v. Canadian Human Rights Commission.

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 43].

Payne v. Human Rights Commission (Ont.) (2000), 136 O.A.C. 357 (C.A.), refd to. [para. 50].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 53].

Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161, refd to. [para. 55].

Granovsky v. Minister of Employment and Immigration (2000), 253 N.R. 329 (S.C.C.), refd to. [para. 65].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 65].

Gwinner et al. v. Alberta (2002), 321 A.R. 279 (Q.B.), consd. [para. 66].

Cominco Ltd. (Certain Kimberley Operations Employees) v. Cominco Ltd., [2001] B.C.H.R.T.D. No. 46, refd to. [para. 67].

Nixon v. Vancouver Rape Relief Society, [2001] B.C.H.R.T.D. No. 1, refd to. [para. 67].

Dame v. South Fraser Health Region, [2001] B.C.H.R.T.D. No. 22, refd to. [para. 67].

Wignall v. Canada (Department of National Revenue Taxation), [2001] B.C.H.R.T.D. No. 9, refd to. [para. 67].

Meiorin - see Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union.

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 71].

Dickason and Human Rights Commission (Alta.) v. University of Alberta, [1992] 2 S.C.R. 1103; 141 N.R. 1; 127 A.R. 241; 20 W.A.C. 241, refd to. [para. 100].

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. 100].

Canadian National Railway Co. v. Bhinder and Canadian Human Rights Commission, [1985] 2 S.C.R. 561; 63 N.R. 185; 23 D.L.R.(4th) 481, refd to. [para. 100].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 101].

Statutes Noticed:

Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, sect. 7(2) [para. 54].

Authors and Works Noticed:

Tarnopolsky, W.S., Discrimination and the Law (1985) (Looseleaf), pp. 4.7B to 4.8 [para. 66].

Counsel:

Frederick Laux, Q.C., for the applicant;

Janice Ashcroft and Audrey Dean, for the respondent.

This application was heard on June 12, 2002, before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on October 29, 2002.