Silverman v. Alberta (Human Rights Commission), 2012 ABQB 152

Court of Queen ’ s Bench of Alberta Citation: Silverman v. Alberta (Human Rights Commission), 2012 ABQB 152 Date: 20120313 Docket: 1101 10495 Registry: Calgary Between: Earl Silverman Applicant - and - D.B. Mason, Q.C., Chief of the Commission and Tribunals of the Alberta Human Rights Commission Respondent - and - Her Majesty the Queen As Represented by Alberta Children and Youth Services Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B. L. Veldhuis _______________________________________________________ I.

Introduction [ 1 ] This is an application for judicial review of a decision (the “Chief’s Decision”) of the Honourable D.B. Mason, Q.C. (the “Chief Commissioner”), Chief of the Commission and Tribunals of the Alberta Human Rights Commission (the “Commission”). The matter has a lengthy procedural history. [ 2 ] Mr. Silverman filed a complaint (the “Complaint”) with the Commission on March 21, 2006 against the Minister Responsible for Children’s Services (the Respondent “CYS”). The lengthy complaint was that Mr.

Silverman was discriminated against on the grounds of gender in respect of the provision of goods, services, accommodation or facilities. Mr. Silverman complained that he

“was denied domestic violence services available to others”. CYS filed a response dated August 17, 2006, denying any evidence of discrimination. [ 3 ] John Gabriele, a Human Rights Officer, conducted an investigation into the Complaint and prepared a report (the “Investigation Report”) dated January 20, 2010. Mr. Gabriele conducted interviews with a number of individuals and reviewed the Complaint, CYS’ response, the Human Rights, Citizenship and Multiculturalism Act , RSA 2000, c. H-14 (the “Act”) and various cases, literature and correspondence.

The Investigation Report concluded as follows: This matter and the completed report was put to counsel for the Commission for legal opinion. As noted by counsel, there is insufficient information available, to anyone as the investigator understands the circumstances, to demonstrate that there is actually discriminatory impact. There is not present in this matter an identified group of abused men of such number and circumstance to demonstrate that [CYS] has failed in its duty not to discriminate by failing to provide funding for a shelter which has first been necessitated by need.

While there may be fertile ground for discriminatory impact to occur, the impact itself remains speculative at this point and it is beyond the authority of the investigator to conjecture as to its existence. ... In conclusion, the information gathered indicates that there is no reasonable basis to proceed on the allegations that the shelter funding practices discriminate. Therefore it is recommended that this complaint be dismissed. [ 4 ] The Investigation Report was referred to the Southern Director of the Commission, Pardeep Gundara, who followed Mr.

Gabriele’s recommendation and dismissed the Complaint on January 20, 2010. In the letter advising him of the dismissal, Mr. Silverman was also advised that he could seek review of the dismissal by the Chief Commissioner and could provide any additional information he believed was relevant. [ 5 ] In February 2010, Mr. Silverman requested review by the Chief Commissioner and filed a substantial amount of additional material. He was advised on May 6, 2010 that the file had been forwarded to the Chief Commissioner for review.

On February 15, 2011, the Chief’s Decision upholding the dismissal of the Complaint was forwarded to Mr. Silverman. [ 6 ] Mr. Silverman now seeks judicial review of the Chief’s Decision. Mr. Silverman has also brought an application to introduce further evidence and an application for further disclosure. I will deal first with these two preliminary applications and then with the application for judicial review. II. The Application to Introduce Further Evidence [ 7 ] Mr. Silverman asked this Court to consider evidence that was not before the Chief Commissioner on his review of the dismissal of the Complaint. Mr.

Silverman acknowledged that the evidence he wanted to introduce was not “fresh” but rather “refreshed”. His brief states as follows at para. 25: The Introduction of Fresh Evidence is not as much on itself an introduction of actual Fresh Evidence but the ReFresh of evidence already provided before the Southern Director Gundara and Chief Mason but as it is fresh unto itself as it is considered to be a “ living document ”, the refresh evidence was not available at the time of the Appeal; [ 8 ] In effect, what Mr. Silverman wished to put before this Court was updated research and documents.

He based his application on what he described as the “living tree doctrine” or “living tree concept”, noting that society’s attitudes toward various issues change over time. He asserted that these changes warranted putting updated information before the Court. [ 9 ] Counsel for both CYS and the Commission referred to the decision of Slatter J., as he then was, in Alberta Liquor Store Assn. v. Alberta (Gaming & Liquor Commission) , 2006 ABQB 904 , 406 AR 104 at paras. 40-44 :

The general rule is that judicial review is conducted based on the Return filed by the tribunal. Neither Rule 406 nor Rule 753.08 requirean affidavit in support. The record before the tribunal is generally the record before the Court, and additional affidavits and evidence are exceptional: White v. Alberta (Workers’ Compensation Board Appeals Commission), 2006 ABQB 359, 57 Alta. L.R. (4th) 282, 41 Admin. L.R. (4th) 141 (Alta. Q.B.) at para. 35. There are some instances where supplementary evidence is allowed: [White], supra, at para. 35.

Evidence may be allowed to show bias,or a reasonable apprehension of bias, where the facts in support of the allegation do not appear on the record. Sometimes breaches of therules of natural justice will not be apparent from the record, and evidence to demonstrate the grounds of the application may be filed:Western Canada Wilderness Committee v. British Columbia (Ministry of Forests, South Island Forest District), 2002 BCSC 1260, 45Admin. L.R. (3d) 161, 50 C.E.L.R. (N.S.) 56 (B.C.S.C. [In Chambers]) at paras. 26-27, aff’d other grounds 2003 BCCA 403, 185 B.C.A.C. 58, 15 B.C.L.R. (4th) 229 (B.C.C.A.).

Extrinsic evidence might exceptionally be allowed on other issues, like standing. Wherea tribunal makes no, or an inadequate record of its proceedings, affidavits are permissible to show what evidence was actually placedbefore the tribunal: S.C.F.P., Local 301 c. Quebec (Conseil des services essentiels), (SCC), [1997] 1 S.C.R. 793(S.C.C.), at para. 86. As a general rule, however, evidence that was not before the tribunal and that relates to the merits of the decision is not permitted on judicial review. The law is summarized in S.

Blake, Administrative Law in Canada, (4th ed.), at pg. 198: Only material that was considered by the tribunal in coming to its decision is relevant on judicial review. It is not the role of the court todecide the matter anew. The court simply conducts a review of the tribunal decision. For this reason, the only evidence that is admissiblebefore the court is the record that was before the tribunal. Evidence that was not before the tribunal is not admissible without leave of thecourt.

If the issue to be decided on the application involves a question of law, or concerns the tribunal’s authority, the court will refuseleave to file additional evidence. Evidence challenging the wisdom of the decision is not admissible. The tribunal’s findings of fact maynot be challenged with evidence that was not put before the tribunal. Fresh evidence, discovered since the tribunal made its decision, isnot admissible on judicial review ... (footnotes omitted).

Attempting to introduce fresh evidence respecting the merits of the challenged decision on an application for judicial reviewmisapprehends the nature of judicial review. Whatever the standard of review, the review must be conducted on the record that the tribunal had. ... Whether there is a rational basisfor the decision can only be determined by examining the evidence the tribunal had to work with ... Likewise, a decision is patentlyunreasonable if it is irrational on its face...

That analysis must again be conducted in light of the evidence the tribunal had to work with.Whether a decision is reasonable is not a search for some sort of universal truth... Any tribunal or court can only work with the evidencebefore it, and a decision may well prove to be reasonable, even though it can arguably be shown to be factually flawed. It follows thatnew evidence relating to the merits of the decision will seldom be admissible, as it is irrelevant to the issues before the court on judicialreview.

The parties suggested that the test for using evidence on a judicial review application is similar to the test for using fresh evidence on anappeal. That test is set out in R. v. Palmer (1979), (SCC), [1980] 1 S.C.R. 759 (S.C.C.) and was adopted as the test fornew evidence on judicial review in Siksika Nation v. Walji Holdings Ltd., 2004 ABQB 37, 350 A.R. 324 (Alta. Q.B.). In my respectfulview, the analogy between the two types of proceedings is inapt.

When an application for judicial review is brought, all of the evidenceis “fresh” in the sense that there is no evidence on the record of the Court prior to the commencement of the application, and there is noprior record to “refresh”. If instead of applying for judicial review the Applicants applied for a re-hearing before the Board, and thenapplied to use new and better evidence that had been discovered, that would be “fresh” evidence.

Most tribunals are not bound strictly bythe rules of evidence, and a tribunal might or might not agree to have a new hearing, and might or might not agree to consider the freshevidence. It, however, confuses the entire concept of judicial review to suggest that evidence that was not before the tribunal can bebrought forward on judicial review simply because it is “fresh” within the Palmer rule. Such evidence can never be “decisive” of theapplication, because the issues are different. The Board had to decide whether to grant a retail liquor license.

The Court has to decidewhether the granting of the license meets the appropriate standard of review, and complies with the rules of natural justice. The Courtdoes not decide whether the license should have been granted, and it is not helpful to say that the new evidence will be “decisive” in thiscontext. On the other hand, evidence might be admitted on judicial review even if it is not “decisive” of anything previously decided. Forexample, if subsequently obtained evidence shows a reasonable apprehension of bias, it might well be admitted on judicial review.

Suchevidence is not decisive of any issue that the Board has previously decided, but it is a valid ground for judicial review. I thereforeconclude (contrary to my earlier assumption in [White], supra, at para. 34) that the Palmer test for fresh evidence on appeal has noapplication in this context. [10] CYS also referred to McClary v. Geophysical Service Inc., 2011 ABQB 112 and relied on these comments at paras. 25 and 26:

Judicial review is conducted on the basis of the return, and affidavit evidence is generally not admissible. 979899 Alberta Ltd. v. Alberta , 2008 ABQB 57 (Alta. Q.B.), at para. 5 ; [ Alberta Liquor Stores ] at paras. 40 and 43. Affidavit evidence related to the merits of the impugned decision is not relevant or admissible on judicial review. The reasonableness of the decision can only be determined by examining the evidence the decision-maker had to work with: 979899 Alberta Ltd. , supra , at para. 5 ; Alberta Liquor Store Assn. , supra , at paras. 38, 42 and 43 . [ 11 ] Mr.

Silverman acknowledged the Alberta Liquor Stores decision, but argued that the evidence he wished to introduce demonstrated a lack of neutrality on the part of the Chief Commissioner. He argued that the Chief Commissioner supported the proposition that violence against women is a hate crime while ignoring the issues men face as victims of domestic violence, therefore giving rise to a reasonable apprehension of bias.

CYS argued that there is nothing in the proposed evidence to indicate bias and that the Chief’s Decision expressly stated that the Chief Commissioner accepted that there are male victims of domestic violence. [ 12 ] CYS argued that the proposed evidence relates to the merits of the Chief’s Decision and is inadmissible. Further, it asserted that none of the proposed evidence assisted with review of the Chief’s Decision. CYS’ position was that the proposed evidence consisted of commentary and argument from Mr.

Silverman and materials which were available to him before the Commission, some of which are included in the return. [ 13 ] The Commission’s position was identical to that of CYS. Also, both pointed out that Mr. Silverman was given an opportunity at various points in the proceedings to file materials and he indeed filed a substantial number of documents. [ 14 ] Having reviewed the proposed evidence and other materials and considered the submissions of all parties, I find that the materials Mr. Silverman asked to introduce do not fall within the narrow exceptions permitting fresh evidence on judicial review.

There is nothing in the proposed evidence to satisfy me that there is a reasonable apprehension that the Chief Commissioner was biased; the materials in question are directed to the merits of the Chief’s Decision and are not permitted. I agree with Mr. Silverman that both society’s mores and social science research are in a continual state of development, but that does not address the requirement that the merits of the Chief’s Decision be assessed on the basis of the material before him.

To allow fresh evidence on judicial review on the basis of evolving research has the potential to extend the review process indefinitely and is simply unworkable. The application to introduce fresh evidence is denied. III. The Disclosure Application [ 15 ] Mr. Silverman also brought an application seeking disclosure of two items: (1) the basis for a statement by the Deputy Minister of CYS that “Police, Justice, Health and Children’s Services do not indicate a substantiated need for expanding the shelter program to include men’s emergency shelters.”

(2) Mr. Silverman’s letter dated April 15, 2008 to Mr. Gabriele and Mr. Gabriele’s reply. [ 16 ] Mr. Silverman referred to IMS Health Canada, Limited v. Information and Privacy Commissioner , 2005 ABCA 325 , in which the Court of Appeal discussed the contents of a return, saying as follows at para. 53: These

interpretations provide some guidance. Concerns about far ranging returns are alleviated by the fact that the return is only directed at what is in issue. Moreover, in circumstances where the administrative decision-maker is insulated from investigative and other preliminary processes, the decision-maker will not possess documents relating to those functions and cannot be expected to include them in the return. Demands for more expansive returns cannot become fishing expeditions because the party attacking administrative decisions will not be granted access to the documents unless they have raised a valid reason for belief in the allegations underlying their

attack. The Commissioner is required to include in his return all things which touch on the issue of his decision to conduct an investigation and to issue an order relating only to the disclosures made by pharmacists and pharmacies to IMS. [ 17 ] Mr.

Silverman asserted that the Deputy Minister’s statement was at the heart of the matter; he stated at para. 40 of his brief that “As all dismissals were on the basis of ‘no demonstrable need’ then it is reasonable to request the document that Alberta promotes as the official government position on ‘no demonstrable need’.” [ 18 ] CYS asserted that the return contains all of the documents required by Rule 3.18 of the Alberta Rules of Court: 1. The Chief’s Decision; 2. The reasons for the Chief’s Decision, which are contained therein; 3. The Complaint; 4. All of the evidence filed with the Chief Commissioner; and 5.

All relevant documentation that was before the Chief Commissioner. [ 19 ] CYS cited IMS Health Canada , along with a number of other authorities, for the proposition that material that was not before the Chief Commissioner should not be included in the return. [ 20 ] CYS also addressed the specific documents sought by Mr. Silverman.

With respect to the first, CYS denied that there is one such document, saying that “Alberta relies on the collective information that it submitted [to the investigator], not any one document addressing the statement in question.” With respect to the second, CYS stated that “Alberta does not know what these documents relate to, or why Mr.

Silverman does not have them.” [ 21 ] The Commission also made submissions in respect of this application, making these points at paras. 29, 34 and 35 of its brief: The investigation file , as opposed to the investigation report , was specifically not before the Chief Commissioner when he made his decision with respect to the Applicant’s Complaint. It is not intended that in a Review that the Chief Commissioner reinvestigate the complaint. [Emphasis in original.] ... The letter simply requests information on need relating to expanding shelter programs to include men’s emergency shelters.

The investigation report canvasses this question, outlining interviews with respondent witnesses and attaching a voluminous amount of material accumulated during the investigation through various sources. The inclusion of this letter from the investigation is not relevant, especially give the context of the fulsome investigation and the inclusion of the report and attachments into the Return. Additionally, as noted by Ritter J. when the adjudicative decision maker is insulated from the investigation and other preliminary processes, the decision maker will not have those documents in his possession.

The Chief Commissioner purposively does not involve himself in matters dismissed by the Director until such time as a Request for Review is filed with his office. The Chief Commissioner then reviews the complaint, the response, the investigation Report and attachments, the decision and any new submissions filed with his office by the parties. It is not intended that the Chief Commissioner review all the correspondence that is undertaken by the investigator, and reinvestigate the complaint. [ 22 ] I agree with the position of CYS and the Commission. Even if the first document Mr.

Silverman sought existed, it clearly would form part of the background materials giving rise to the Investigation Report and, quite properly, would not have been before the Chief Commissioner when he arrived at the Chief’s Decision. The same is true for correspondence between Mr. Silverman and Mr. Gabriele, although it was unclear why Mr. Silverman did not already have that correspondence.

My examination of the return indicated that the materials required by the Rules of Court were before me and it is clear, from IMS Health Canada and other authorities, that only those materials are relevant to this Court on judicial review. The application for further disclosure is denied.

IV. The Judicial Review Application [23] We now arrive at the crux of the matter, judicial review of the Chief’s Decision. The first step is to determine the appropriatestandard of review, whether correctness or reasonableness. The correct procedure for doing so is the two-step process articulated by theSupreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para. 62: In

summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined ina satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the firstinquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [24] There is, of course, a significant body of case law dealing with judicial review of decisions of human rights tribunals. InCallan v.

Suncor Inc., 2006 ABCA 15, 380 AR 247, the Court held as follows at para. 15: The parties are all in agreement that the standard of review of the decision of the Chief Commissioner is reasonableness simpliciter.When the Chief Commissioner decides to send or not send a complaint to a human rights panel, the standard of review is whether hisdecision to do so is reasonable or not. Therefore, if the referral decision of the Chief Commissioner stands up to a somewhat probinganalysis, the reviewing court should not intervene: Ryan v.

Law Society (New Brunswick), 2003 SCC 20 , [2003] 1 S.C.R. 247(S.C.C.), at para. 55. [25] Callan predates Dunsmuir, but I am satisfied that it indicated that the correct standard of review in cases such as this isreasonableness. That was the finding of Stevens J. of this Court in McClary at paras. 33 and 34: The question in a judicial review of a decision of the Chief Commissioner is whether there is a “reasonable basis in the evidence toproceed”: Mis v. Alberta (Human Rights & Citizenship Commission), 2001 ABCA 212 (Alta. C.A.).

Specifically in this case, the questionis whether there is a reasonable basis in the evidence to forward McClary’s complaint for a human rights panel hearing. The question isone of fact or of mixed fact and law. The Alberta Courts have consistently held that the standard of review of a decision of the Chief Commissioner on a question of fact ormixed fact and law is reasonableness. [Citations omitted.] [26] I find that the standard of review for the Chief’s Decision is reasonableness.

That standard was described as follows inDunsmuir at para. 47: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: 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. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [27] The reasonableness standard was also discussed in Law Society of New Brunswick v.

Ryan, 2003 SCC 20, [2003] 1 SCR 247where the Supreme Court of Canada held as follows at para. 55: A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal fromthe evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenablein the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing courtmust not interfere ...

This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even ifthis explanation is not one that the reviewing court finds compelling...

[ 28 ] The Chief’s Decision was to uphold the dismissal of Mr. Silverman’s Complaint as not having sufficient merit to warrant a full hearing. It is that decision that must be tested against the reasonableness standard, keeping in mind the Supreme Court’s comments in Ryan . However, both Mr. Silverman and CYS made submissions about the specific factual findings made by the Chief Commissioner and I considered those submissions in conducting my analysis. [ 29 ] Mr.

Silverman and CYS were in some agreement as to what findings the Chief Commissioner made in the Chief’s Decision, though they disagreed on the merits of those findings. First, the Chief Commissioner found that women are disproportionately the victims of the most severe forms of domestic abuse. CYS acknowledged Mr. Silverman’s point that there are statistics to indicate that there is greater gender symmetry in the overall incidence of domestic violence, but contended that there was abundant evidence before the Chief Commissioner to support this finding. I agree with CYS’ position on this point.

The evidence in the return provided a reasonable basis for the conclusion arrived at by the Chief Commissioner. [ 30 ] Mr. Silverman also asserted that the Chief Commissioner erred in his “perception that the funding process was open”. There was some dispute between the parties as to the significance of the funding process. CYS took the position that “the [Chief Commissioner’s] determination that shelter funding is allocated in accordance with demonstrated need is reasonable”. In oral argument, Mr.

Silverman asserted that the Complaint pertained to the provision of goods, services, accommodations and facilities, rather than to shelter funding practices. He argued that the two are distinctly different, like “apples and dump trucks”. [ 31 ] With all due respect to Mr. Silverman, I cannot agree. In my view, the provision of shelter services and shelter funding practices are impossible to separate. For a shelter facility to be available, funding must be in place to construct and operate that facility.

Therefore, it was reasonable for the Chief Commissioner to take shelter funding practices into account in arriving at the Chief’s Decision. [ 32 ] The parties also canvassed the question of how funding is allocated. CYS took the position that the Chief Commissioner reasonably concluded that shelter funding was allocated in accordance with demonstrable need. Mr. Silverman, as I understand his argument, took the position that allocating shelter funding on the basis of demonstrable need is, in itself, discriminatory.

He contrasted this approach with two human rights cases in which discrimination on the basis of physical disability was found in respect of a movie theatre and a taxi service. He argued that human rights cases pertain to an individual’s ability to access goods, services and facilities that are available to the general public and pointed out, using his examples, that the individuals were not required to prove a “demonstrable need” to watch a movie or ride in a taxi.

Instead, the focus was on the denial of services. [ 33 ] The question in human rights cases is not simply whether there has been a denial of services, but whether such denial constitutes discrimination. This brings us back to the issue of funding practices. It is evident that public resources will always be insufficient to fund every purpose. Therefore, such resources must be properly and cautiously allocated. I agree that the Chief Commissioner reasonably concluded that allocating such funding on the basis of demonstrable need is not discriminatory. [ 34 ] Mr.

Silverman made numerous references to differences in the facilities available to male and female victims of domestic violence. While he acknowledged that some services are available to men, he asserted that there are significantly fewer resources available to male victims. He may be quite correct in this assertion. Indeed, CYS did not argue that the numbers of facilities available for men and women are equal. But it does not follow that such a difference must, by that very fact, be discriminatory. [ 35 ] There are many cases supporting the notion that equal treatment does not require identical treatment.

This point has been expressed several times in the appellate courts and at the Supreme Court of Canada. In Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General) , 2004 SCC 4 , [2004] 1 SCR 76, the Supreme Court of Canada stated at para. 51: The difficulty with this argument ... is that it equates equal treatment with identical treatment, a proposition which our jurisprudence has consistently rejected. [ 36 ] More recently, in Withler v. Canada (Attorney General) , 2011 SCC 12 , [2011] 1 SCR 396, the Supreme Court held as follows at paras. 39 and 42:

Both the inquiries into perpetuation of disadvantage and stereotyping are directed to ascertaining whether the law violates therequirement of substantive equality. Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as ananswer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristicsthe different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances.

Thefocus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factorsconcerning the group. The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negativestereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the claimant group. ... Comparison ... must be approached with caution; not all differences in treatment entail inequality, and identical treatment may produce“serious inequality”.

For that reason, McIntyre J. rejected a formalistic “treat likes alike” approach to equality under s. 15(1) [of theCharter], contrasting substantive equality with formal equality. [37] Several of the cases in which the distinction between equal treatment and identical treatment has been considered have arisenin the context of the Charter and the courts have been careful to state that the analyses of Charter and human rights cases are notidentical. Our Court of Appeal in Alberta (Minister of Human Resources & Employment) v.

Alberta (Human Rights, Citizenship &Multiculturalism Commission), 2006 ABCA 235, 391 AR 31 made these comments at paras. 23- 26: Although this case involves human rights, it is not a Charter case and Charter rights are not in issue. The case involves an

interpretationof human rights legislation. It must be interpreted in light of both its context and objectives. A broad, purposive approach is required... Principles of Charter

interpretation and justification can assist with the

interpretation of the Act. In Gibbs v. Battlefords & District Co-operative Ltd., when interpreting the meaning of “discrimination” in the Saskatchewan human rights legislation, the Supreme Court ofCanada relied on the definition of “discrimination” in Andrews v. Law Society (British Columbia), (SCC), [1989] 1 S.C.R.143 (S.C.C.), a Charter case. To determine whether discrimination occurred contrary to human rights legislation, the Supreme Court of Canada has set out the sameapproach whether the analysis is under human rights legislation or the Charter.

McLachlin J. (as she then was), writing for the Court inBritish Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., (SCC), [1999] 3 S.C.R. 3 (S.C.C.),stated at para. 48: “I see little reason for adopting a different approach when the claim is brought under human rights legislation which,while it may have a different legal orientation, is aimed at the same general wrong as s. 15(1) of the Charter.” However, the analysis does not begin with the Charter.

As McLachlin J. also stated in B.C.G.E.U., at para. 43, that although humanrights statutes have an elevated legal status, in the absence of a constitutional challenge, the statutes remain legislative pronouncementsand the court must interpret them “according to their terms, and in light of their purposes.” [38] The Court of Appeal made clear at para. 36 of that case that substantive, rather than formal, equality is the premise thatunderlies human rights legislation: Not every difference in treatment will be remedied by human rights legislation.

In order to constitute discrimination, the difference mustcome within the purview of the statute and consideration must be given as to whether the provision sought to be impugned violatesessential human dignity. [39] The Chief Commissioner concluded that the unequal numbers of facilities available for male and female victims of domesticabuse did not constitute discrimination. That finding was reasonable. [40] Finally, Mr. Silverman asserted that the Chief Commissioner unreasonably disregarded the sexual orientation aspect of hisargument. Though the main thrust of Mr.

Silverman’s argument was that he was discriminated against on the basis of his gender, he alsoalleged that more facilities and services would be available to him if he were gay. CYS’ response was simply that Mr. Silverman couldhave, and in fact did, access funded services for non-gay men.

[ 41 ] In my view, the concept of substantive equality comes into play in respect of this argument as well. Mr. Silverman acknowledged that there were services and facilities available to male domestic abuse victims; he did not assert that those services and facilities exist only for gay men. It may well be that the extent of services differs for each group but that does not necessarily lead to the conclusion that there has been discrimination.

Consequently, this argument does not support a conclusion that the Chief’s Decision was unreasonable. [ 42 ] In conducting the above analysis, I was mindful that it is not the task of this Court to “parse” each aspect of the Chief’s Decision. Rather, the approach was that articulated by the Supreme Court of Canada in Ryan at para. 56 : This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision.

At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. [ 43 ] Both CYS and Mr. Silverman referred to the Chief Commissioner’s role as a “gatekeeper”. Mr.

Silverman’s brief stated as follows at para. 17: The gatekeeping role of the Chief Commissioner pursuant to s. 26 of the AHR Act ensures complaints are not forwarded to a hearing unless there is a reasonable basis in the evidence to proceed. In performing his screening function, the Chief Commissioner may make threshold assessments of credibility, and consider new evidence. [ 44 ] Taking into account the reasons and findings of fact underlying it, I conclude that the Chief’s Decision was reasonable. Therefore, Mr.

Silverman’s application for judicial review is dismissed. [ 45 ] Neither the Commission nor CYS sought costs in respect of this application and I decline to make any costs award. Heard on December 20, 2011. Dated at the City of Calgary, Alberta this 13 th day of March, 2012 B. L. Veldhuis J.C.Q.B.A. Appearances: Earl Silverman for the Applicant

Janice R. Ashcroft Counsel for the Alberta Human Rights Commission for the Respondent Sean McDonough Alberta Justice - Civil Litigation for the Respondent