McClary v. Geophysical Services Inc., 2011 ABQB 112

Court of Queen ’ s Bench of Alberta Citation: McClary v. Geophysical Services Inc., 2011 ABQB 112 Date: 20110223 Docket: 1001 09107 Registry: Calgary In the Matter of The Alberta Human Rights, Citizenship and Multiculutralism Act , R.S.A. 2000, c. H-14 ( now known as The Alberta Human Rights Act , R.S.A. 2000, c.

A-25.5 Between: Roger McClary Applicant - and - Geophysical Services Inc., The Attorney General and The Alberta Human Rights and Citizenship Commission (now known as The Alberta Human Rights Commission) Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Ron Stevens _______________________________________________________ I. Introduction [ 1 ] This is a judicial review of a decision of the Honourable D.B.

Mason, Chief Commissioner of the Alberta Human Rights and Citizenship pursuant to s. 35 of the Alberta Human Rights, Citizenship and Multiculturalism Act , R.S.A. (2000), c.H-14 (“the AHRCM

Act ” now the Alberta Human Rights Act , R.S.A. 2000 c. A-25.5), to uphold the dismissal of a human rights complaint by Roger McClary (“McClary”). The application was heard on October 20, 2010. Supplemental briefs were filed by the Applicant and the Respondent by the end of November 2010. II. Background [ 2 ] McClary filed a complaint on February 13, 2007 with the Alberta Human Rights and Citizenship Commission (now the Alberta Human Rights Commission) against Geophysical Service Incorporated (the Respondent or "GSI") alleging discrimination on the ground of physical disability in the area of employment practices pursuant to section 7 (1) (a)(

b) of the AHRCM Act . Additional revisions were accepted by the Commission on February 27, 2007, March 16, 2007 and April 25, 2007. The Respondent filed a response on May 18, 2007. ( Return - Tab 9(2)) [ 3 ] The parties participated in voluntary conciliation pursuant to section 21 (2) of the AHRCM Act . Conciliation documents do not form part of the record and were not in front of the Chief Commissioner. (This is only noted because of the allegations by McClary concerning information provided at conciliation).

Conciliation is meant to be a confidential process to promote settlement by which parties can engage in open dialogue on a without prejudice basis. The conciliation file is sealed after the conciliation is completed to ensure that any subsequent investigation is not compromised or prejudiced due to any information that came about during the conciliation. [ 4 ] An Investigation Report recommending the complaint be dismissed was completed on April 3, 2009. (Return - Tab 9) [ 5 ] A delegated director, Mr.

Pardeep Gundara, followed the recommendation of the human rights officer and dismissed the complaint on April 3, 2009. (Return - Tab 8) [ 6 ] McClary requested a review of the dismissal of the complaint to the Chief Commissioner which was received on May 8, 2009. (Return - Tab 5) McClary submitted significant additional information. [ 7 ] Ms.

Cathy Finlayson, Coordinator of Panels and Reviews sent a letter to the Respondent, copied to McClary with the Request for Review attached and information about what material the Chief Commissioner would review. (Return - Tab 4) [ 8 ] The Respondent choose not to reply to the Request for Review. On August 11, 2009, Cathy Finlayson indicated that the file had been forwarded to the Chief Commissioner for review. (Return - Tab 2) [ 9 ] The Chief Commissioner reviewed the investigation report, attachments and the further information/submissions provided by McClary.

The Chief Commissioner upheld the dismissal by the investigator on January 21, 2010. (Return - Tab 1) III. Legislative Authority [ 10 ] The substantive and procedural law in Alberta at the time McClary filed a complaint and the Chief Commissioner rendered a decision on the complaint, was found in the AHRCM Act and the Bylaws .

The relevant sections remain substantively and numerically the same in the new legislation; the Alberta Human Rights Act , R.S.A. 2000 c.A-25.5. [ 11 ] Section 20(1) of the AHRCM Act permitted a person who had reasonable grounds for believing the AHRCM Act had been contravened, to make a complaint. [ 12 ]

Section 21 prescribed the procedure to be followed when a complaint had been made to the Commission.

21(1) Where the Commission receives a complaint, the director shall, as soon as is reasonably possible, attempt to effect a settlement of the complaint by means of a conciliator or through the appointment of a person to investigate the complaint.

(2) Where a conciliator is unable to effect a settlement of the complaint, the director may appoint a person to investigate the complaint. [ 13 ] The duty of the investigator was prescribed at s. 6 of the Bylaws: 6(1) The duty of an investigator is to establish the facts and make recommendations to the regional manager as to whether or not there is merit to a complaint. 6(2) Where an investigator has been appointed to investigate a complaint, the investigator shall report on the investigation to the regional manager upon completion of the investigation. [ 14 ] The Director’s powers were prescribed under s. 22(1) 22(1) Notwithstanding

section 21 the director may at any time (

a) dismiss a complaint if the director considers that the complaint is without merit (

b) discontinue the proceedings if the director is of the opinion that the complainant has refused to accept a proposed settlement that is fair and reasonable, or (

c) report to the chief commissioner that the parties are unable to settle the complaint. [ 15 ] A request to review the Director’s decision by the Chief Commissioner was provided in s. 26 of AHRCM Act . 26(1) The complainant may, not later than 30 days after receiving notice of dismissal of the complaint or notice of discontinuance under

section 22, by notice in writing to the Commission request a review of the director’s decision by the chief commissioner. [ 16 ] The authority for the Chief Commissioner to review the Director’s decision was provided under s. 26(3). 26(3) The chief commissioner shall (

a) review the record of the director’s decision and decide whether (

i) the complaint should have been dismissed, or (ii) the proposed settlement was fair and reasonable, as the case may be, and (

b) forthwith serve notice of the chief commissioner’s decision on the complainant and the person against whom the complaint was

made. [ 17 ]

Section 27 provided for the appointment of a human rights panel: 27(1) The chief commissioner shall appoint a human rights panel to deal with a complaint in the following circumstances: (

a) where the chief commissioner receives a report from the director that the parties are unable to settle the complaint; (

b) where the chief commissioner decides under section 26(3) that the complaint should not have been dismissed or that the proposed settlement was not fair and reasonable. [ 18 ]

Section 35 provided for a judicial review of the decision of the Chief Commissioner: 35. A decision of the chief commissioner under section 26(3)(

a) is final and binding on the parties, subject to a party’s right to judicial review of the decision. IV . Preliminary Matters [ 19 ] The applicant is a self represented litigant. It was necessary at the outset of the application to deal with a certain matters necessitated in large measure by this fact. A. The Relief Sought by the Applicant Cannot be Obtained on Judicial Review [ 20 ] In his application for judicial review, the Applicant sought an “Order for a Tribunal hearing of the Complaint”. However, in the Applicant’s Brief, the relief being sought by the Applicant has been expanded to include: (

a) the sum of $230,000.00 plus interest for two years’ of salary and bonuses based on the Applicant’s claim that his employment was wrongfully terminated; (

b) the sum of $273,000.00 plus interest for Group Health Benefits based on the Applicant’s breach of contract claim; (

c) an award of special damages and punitive damages; (

d) an Order setting aside the Chief Commissioner’s decision is requested as alternative relief to the Applicant’s claim for damages; and (

e) an Order for the Alberta Human Rights Commission to reopen the Applicant's complaint against WesternGeco Canada, a subsidiary of Schlumberger Canada Limited (a complaint unrelated to this matter). [ 21 ] The Alberta Rules of Court set out the relief available on an application for judicial review as follows: 753.04(1) On an application for judicial review, the court may grant any relief that the applicant would be entitled to in proceedings for any one or more of the following remedies:

(

a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus; (

b) a declaration or injunction. 753.06(1) On an application for judicial review, the court may direct the person from whose decision, act or omission relief is claimed toreconsider and determine the whole or any part of a matter to which the application for judicial review relates but in respect of a decisionthe court may only direct a reconsideration and determination if the decision has been set aside.

(2) In acting under subrule (1), the court may give such directions as it considers appropriate. [22] The supplemental relief sought by the Applicant as described in para. 20 above, is not available in this judicial reviewapplication. I made this ruling at the outset of the application. B. Fresh Evidence is Not Admissible in a Judicial Review, Without Leave of the Court [23] On June 21, 2010, the Applicant filed an Affidavit (the “McClary Affidavit”), which is stated to be in support of hisapplication for judicial review of the Chief Commissioner’s decision.

The Applicant did not obtain leave of the Court to file the McClaryAffidavit but at the beginning of this application sought to do so. [24] A party seeking to introduce affidavit evidence in a judicial review application should make application to do so.

SarceeGravel Products Inc v Alberta (Workers’ Compensation Board) (1997), 1997 ABCA 379 , 209 AR 156 (Alta CA), at para. 2 [25] Judicial review is conducted on the basis of the return, and affidavit evidence is generally not admissible. 979899 Alberta Ltdv Alberta, 2008 ABQB 57 (Alta QB), at para. 5; Alberta Liquor Store Assn v Alberta (Gaming & Liquor Commission), 2006 ABQB 904(Alta QB), at paras. 40 and 43. [26] Affidavit evidence related to the merits of the impugned decision is not relevant or admissible on judicial review.

Thereasonableness of the decision can only be determined by examining the evidence the decision-maker had to work with: 979899 AlbertaLtd, supra, at para. 5; Alberta Liquor Store Assn, supra, at paras. 38, 42 and 43. [27] I note that McClary submitted significant additional material to the Chief Commissioner which was reviewed. [28] The McClary Affidavit also suffers from a number of deficiencies: (

a) portions of the McClary Affidavit contain argument, rather than facts; and (

b) portions of the McClary Affidavit: (

i) repeat information that is included in the Return and are therefore redundant; and (ii) are irrelevant to the issues raised in this judicial review application.

[29] For the above reasons, I ruled at the outset of the application that the McClary Affidavit could not be introduced as evidence. C. Role of the Chief Commissioner on Judicial Review [30] With the intention of assisting the Court, and as the legislation has changed and the Applicant is self represented and has notaddressed the standard of review, I allowed the Chief Commissioner to provide limited written submissions on the legislative authority,the procedure followed in the decision making process as set out in the Return, and the standard of review: Brewer v. Fraser MilnerCasgrain LLP

(2008) ABCA 160 at para. 26 (Brewer); Northwestern Utilities v. Edmonton (City) (SCC), [1979] 1S.C.R. 684, at paras. 47 and 30. V. Standard of Review What is the standard of review of the decision of the Chief Commissioner (now known as the Chief of the Commission and Tribunals)? [31] The decision in Dunsmuir v. New Brunswick 2008 SCC No. 9 (“Dunsmuir”) on standard of review has refined thePushpanathan approach [Pushpanathan v. Canada (Minister of Citizenship and Immigration) (SCC), [1998] 1 S.C.R.982] to a more simplistic version.

Dunsmuir states that there are only two standards of review - correctness and reasonableness (para.45). [32] The analysis set out in Dunsmuir requires the Court to first determine whether the degree of deference is well settled by thecase law with respect to a particular category of question (see Dunsmuir para. 62). If the jurisprudence is well settled, the contextualanalysis set out in Pushpanathan is unnecessary. [33] The question in a judicial review of a decision of the Chief Commissioner is whether there is a “reasonable basis in theevidence to proceed”: Mis v. Alberta Human Rights Commission, 2001 ABCA 212.

Specifically in this case, the question is whetherthere is a reasonable basis in the evidence to forward McClary’s complaint for a human rights panel hearing. The question is one of factor of mixed fact and law. [34] The Alberta Courts have consistently held that the standard of review of a decision of the Chief Commissioner on a questionof fact or mixed fact and law is reasonableness. Brewer v. Fraser Milner Casgrain LLP, 2008 ABCA 435 ABCA (Brewer #2) at paras.16-18; Gramaglia v. Alberta (Government Services Minister), 2007 ABCA 93 (Gramaglia) at para. 20; Callan v.

Suncor Inc., 2006ABCA 15 (Callan) at para. 17; Economic Development Edmonton v. Wong, 2005 ABCA 278 (Wong) at para. 11; Economic DevelopmentEdmonton v. Baah, 2005 ABCA 279 (Baah) at para. 12; Coward v. Alberta (Human Rights and Citizenship Commission, ChiefCommissioner), 2008 ABQB 455 at para. 52. [35] Additionally, the Court in Dunsmuir stated that deference will usually be given to a decision maker when there is a privativeclause [para. 52].

Section 35 of the AHRCM Act states that the Chief Commissioner’s decision is “final and binding”. While not a fullprivative clause, the Courts have recognized this

section to be a partial privative clause indicating that some deference be given to theChief Commissioner. [57] “Given the existence of a partial privative clause, the administrative character of the Chief Commissioner’s decision, and the role ofthe Chief Commissioner within the AHRCC, the Court should defer to the decision of the Chief Commissioner. If the decision wasreasonable the Court will not interfere.” City of Calgary v. Rolando Cabalde [2000] ABQB 712 upheld 2003 ABCA 39 [36] Lastly, deference will be given where a decision maker is interpreting its own statute or statutes closely connected to its

function, with which it will have particular familiarity [ Dunsmuir paras. 52-62]. [ 37 ] Applying the factors as set out above, I find that the standard of review in this case, consistent with the jurisprudence, is reasonableness: the question is of mixed fact and law, there is a partial privative clause (s. 35 of the AHRCM Act ), and the decision maker is interpreting his own statute with which he has familiarity. [ 38 ] In determining what the standard of “reasonableness” means, a majority of the Court in Dunsmuir stated: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. VI.

Role Of The Chief Commissioner [ 39 ] On a request for review of the director’s decision, section 26(3) of the AHRCM Act , supra, is involved. [ 40 ] The role of the Chief Commissioner on reviewing the director’s decision to dismiss a complaint is as follows: 16 The chief commissioner fulfils a screening role. He does not determine whether a complaint is made out. The chief commissioner is called upon to consider the evidence gathered by the investigator in the context of deciding whether there is a reasonable basis in the evidence for proceeding to the next stage.

Wong , supra , at para. 16 ; Callan , supra , at para. 14 . [ 41 ] In conducting his review, the Chief Commissioner must evaluate “the quality of the evidence gathered by the investigator, mindful that if the matter goes further, a hearing panel enjoys a broad discretion to assess credibility and evidentiary weight”: Wong , supra , at paras. 17 and 20 ; Callan , supra , at para. 14 . [ 42 ] However, not all credibility issues must be determined by a human rights tribunal: 20 ...

At the investigative stage, independent, confirming evidence will often resolve those cases sometimes described as “classic credibility contests”. If such evidence gathered at the investigative stage points clearly to the veracity of one account of the facts as opposed to another, the “double-screen” of investigator and chief commissioner will satisfy the legislative purpose. Wong , supra , at para. 20 ; Callan , supra , at para. 14 . VII. Investigation [ 43 ] The Record filed by AHRC shows that the investigator conducted a thorough and fair investigation of the Complaint.

In addition to gathering information from the Applicant himself, the investigator also gathered information from: (

a) persons employed or formerly employed by GSI whom the Applicant had identified by name in the Complaint: Mr. Don Daub, Mr. Allan Feir, Mr. John Fischer, Ms. Debra Bredy, Mr. Krish Gunarathan and Ms. Carmen Swallwell;

(

b) Mr. Garry Henderson, GSI’s legal counsel; and (

c) Ms. Linda Lichkowski, a former GSI employee who had worked alongside the Applicant. Investigator’s Report, Return, Tab 9, pp.1-2 [ 44 ] Based on the information he gathered, the Investigator reported that: During the course of this investigation it was generally reported that Mr. McClary lacked the requisite job skills and he was unreliable. . . . The facts learned lead to the conclusion that Mr. McClary was considered to be a poor employee. . . . It was generally reported by Mr. McClary’s co-workers that Mr. McClary was frequently late for work but did not make up the lost time during the work day.

This fact was also observed by Mr. McClary’s supervisor, Mr. Don Daub. . . . It was generally reported that Mr. McClary was viewed as less than capable at his job. Mr. Daub reported that he advised Mr. Feir that Mr. McClary did not understand the job requirements and his work product was not where he anticipated it to be after three months on the job. . . . Likewise, Mr. McClary’s co-workers generally reported that Mr. McClary was poor at his job and he became undependable. In his complaint, Mr. McClary himself reports about this. . . . Based on the information learned it is concluded that Mr.

McClary’s employment at GSI was not terminated because he is diabetic. He was terminated because the company viewed him as unsuitable. Investigator’s Report, Return, Tab 9, pp. 4, 9, 10 and 11 [ 45 ] The Investigator determined that the document, which the Applicant claimed allowed GSI to violate his privacy rights, was simply an emergency contact information sheet. Furthermore, the Applicant’s allegation of illegal surveillance conducted by GSI was found to be “fanciful” and was not pursued further. Finally, the Investigator summarily stated:

In conclusion, there is no information that the respondent (GSI) discriminated against the complainant (Mr. McClary). Accordingly, there is not [sic] reasonable basis on which to proceed with this complaint. Investigator’s Report, Return, Tab 9, p. 11. VIII.

Review By The Chief Commissioner [ 46 ] On reviewing the director’s decision to dismiss the Complaint, the Chief Commissioner is also entitled to examine fresh evidence: Wong , supra , at para. 19 ; Callan , supra , at para. 14 . [ 47 ] When given notice of the dismissal of the Complaint in April 2009, the Applicant was advised of his right to request a review of that decision by the Chief Commissioner.

He was also then expressly advised that “[y]ou may also provide the Chief Commissioner with any additional information you believe is relevant to your complaint”: Return, Tab 7 - letter from AHRCC to McClary dated April 3, 2009. [ 48 ] In the Applicant’s Request for Review of the Dismissal of Complaint #S2007/05/0037” dated May 8, 2009, the Applicant included such additional information: ( Return, Tab 5 ) [ 49 ] In his Record of Decision, the Chief Commissioner expressly noted not only the information gathered by the investigator, but also the additional information provided by the Applicant: ( Return, Tab 1 - “Summary Review of key points” at page 1 of Chief Commissioner’s Decision.) [ 50 ] In upholding the director’s decision to dismiss the Complaint, the Chief Commissioner stated: The investigation of this matter directly involved the persons with whom the Complainant worked while hired on a probationary basis with the Respondent.

The Complainant contends he was dismissed because he was a diabetic. Nothing in the statements of those who worked with the Complainant or the records of the company supports his contention that he was dismissed due to his diabetic condition. Rather there is a consensus that he was terminated because he could not perform the tasks for which he was hired. The Complainant makes sweeping statements as to his education, experience and mastery of many areas of mathematics without any supporting evidence as a basis for his complaint, none of this aspect of his submission addresses the issues raised by his complaint.

I see no reasonable basis in the evidence to advance this case to the tribunal hearing stage and hereby dismiss the appeal. ( Return, Tab 1 - “Determination/Reasons” at pages 4-5 of Chief Commissioner’s Decision.) [ 51 ] In my view, the Chief Commissioner fairly and reasonably performed his gatekeeper function in reviewing and upholding the dismissal of the Complaint.

Based on the Record of Decision, it is evident that the Chief Commissioner determined that the evidence as a whole pointed clearly to the Applicant’s employment having been terminated because of his poor work performance and not because of his diabetes. In doing so, (

a) the Chief Commissioner considered the evidence gathered by the Investigator, summarizing in the Record of Decision the allegations made by the Applicant in the Complaint and to the Investigator; (

b) the Chief Commissioner evaluated the quality of the evidence gathered by the Investigator, noting in the Record of Decision not only the number of witnesses interviewed by the Investigator but also their knowledge of the matters raised in the Complaint and the consensus reached as to the basis for the termination of the Applicant’s employment with GSI; and

(

c) the Chief Commissioner considered the additional evidence provided by the Applicant, setting out the general details of the arguments and supporting documents included in the Request for Review. [ 52 ] The Chief Commissioner’s Decision plainly meets the standard of reasonableness: (

a) there is justification, transparency and intelligibility within the Chief Commissioner’s decision-making process; and (

b) it falls within the range of possible, acceptable outcomes, which are defensible in respect of the facts and under section 26(3) of the AHRCM Act . IX. Conclusion [ 53 ] In

summary, McClary's application for judicial review is dismissed. The Respondent GSI shall have its costs against the Applicant under

Schedule C of the Alberta Rules of Court . Heard on the 20 th day of October, 2010. Dated at the City of Calgary, Alberta this 22 nd day of February, 2011. Ron Stevens J.C.Q.B.A. Appearances: Roger McClary on his own behalf Brent Mescall for Geophysical Services Inc. Janice Ashcroft for the Chief of the Commission and Tribunals Alberta Human Rights Commission