COURT FILE NUMBER 1203 14739 COURT OF QUEEN ’ S BENCH OF ALBERTA JUDICIAL CENTRE Edmonton APPLICANT The Board of Trustees of The Greater St. Albert Roman Catholic Separate School District No. 734 RESPONDENT Jan Buterman RESPONDENT BY ORDER Chief of the Commission v. Tribunals,, 2013 ABQB 485

Court of Queen ’ s Bench of Alberta Citation: Greater St. Albert Roman Catholic Separate School, District No. 734 v Buterman, 2013 ABQB 485 Date: 20130826 Docket: 1203 14739 Registry: Edmonton Between: COURT FILE NUMBER 1203 14739 COURT OF QUEEN ’ S BENCH OF ALBERTA JUDICIAL CENTRE Edmonton APPLICANT The Board of Trustees of The Greater St.

Albert Roman Catholic Separate School District No. 734 RESPONDENT Jan Buterman RESPONDENT BY ORDER Chief of the Commission and Tribunals, Alberta Human Rights Commission _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice Sheila J. Greckol _______________________________________________________ I. Introduction

[ 1 ] On October 1, 2009, Jan Buterman filed a discrimination complaint against the Board of Trustees of the Greater St. Albert Catholic Regional Division No. 29 ( “ the School Board ” ) because the School Board removed his name from its substitute teacher list after he advised it he had been diagnosed with transgenderism and would proceed with gender transition.

The Director of the Alberta Human Rights Commission ( “ the Director ” ) dismissed the complaint but the Chief of the Commission and Tribunals ( “ the Chief ” ) decided the complaint should not have been dismissed and referred it to a human rights tribunal. [ 2 ] On October 3, 2012, the School Board filed an originating application for judicial review seeking the following remedies: As against the Chief: (

i) an order in the nature of certiorari setting aside his decision of July 16, 2012 overturning the decision of the Director summarily dismissing the Buterman complaint and stating he will appoint a human rights tribunal; (ii) an order directing him to decide that the decision of the Director to dismiss the complaint was correct; (iii) an order directing him to order the Director to consider whether the School Board and Mr. Buterman entered into a settlement that is fair and reasonable; and (iv) an order directing him to order the Director to determine whether Mr. Buterman has refused to accept a settlement that is fair and reasonable. As against the Director: (

i) an order in the nature of mandamus directing him to consider whether the School Board and Mr. Buterman entered into a settlement agreement; and (ii) an order in the nature of mandamus directing him to determine whether Mr. Buterman refused to accept a proposed settlement that was fair and reasonable. [ 3 ] The School Board ’ s application is scheduled to be heard on its merits in December 2013. [ 4 ] The present application is preliminary in nature. On January 17, 2013, the Director filed an application under Rule 3.68(1) (

a) of the Alberta Rules of Court , Alta Reg 124/2010 ( “ the Rules ” ) to strike out the originating application insofar as it challenges his actions or seeks a remedy against him. The Director contends it is plain and obvious the School Board ’ s application will fail as it was brought beyond the six month time limitation set out in the Rules.

He submits that, in any event, the remedy sought of referral back to him for action under s 29(1) of the Alberta Human Rights Act , RSA 2000 c H-14 (the “ Act ” ) is not available since he was functus officio from and after referral of the complaint to the Chair, many months before the originating application was filed. [ 5 ] Mr.

Buterman supports the Director ’ s application as he contends that actions of the Director are not amenable to judicial review. [ 6 ] The School Board responds that the Director does not have standing to bring this application to strike, its judicial review application is not amenable to striking out under Rule 3.68(1)(a), and the Director ’ application is otherwise without merit.

[7] The School Board has brought a further application, seeking an order that the Chief file an expanded record. II. Facts [8] In January 2008, Mr. Buterman was diagnosed with transgenderism, clinically known as “gender identity disorder.” Mr.Buterman began working for the School Board as a substitute teacher at the end of March 2008. Around June 17, 2008, on the advice ofhis physician, Mr. Buterman decided that it was time to begin identifying himself and working as a male. The end of the school term wasnear. Around June 24, 2008, Mr. Buterman called Mr. Bayus, the School Board ’s Deputy Superintendent.

He advised Mr. Bayus that hehad been diagnosed with gender identity disorder, a medical condition, and that as part of his transition process he was required to dressand be seen in public as a male. Mr. Bayus said he would look into the matter, particularly with respect to the issue of Catholic teachings. [9] Mr. Buterman received the substitute teachers’ package for the 2008-2009 school year, and in late August applied for apermanent position advertised on the School Board’s website.

He continued teaching with the School Board until it unilaterally removedhim from its substitute teacher list in early October 2008. [10] In his letter of October 14, 2008 confirming Mr. Buterman had been removed from the School Board’s substitute teacher list,Mr. Bayus wrote that in discussions with the Archbishop of the Edmonton Diocese, “the teaching of the Catholic Church is that personscannot change their gender.

One’s gender is considered what God created us to be.” He indicated that the school division was bound byand lived the teachings of the Catholic Church and that it intentionally hired teachers who model and live those teachings as well. Heconcluded that Mr. Buterman’s gender change was not aligned with the teachings of the Church and he would create confusion andcomplexity with students and parents as a model and witness to Catholic faith values. [11] The complaint filed by Mr.

Buterman referred to the Diagnostic and Statistical Manual of Mental Disorders: DSM-IV, 4th ed(Arlington, VA: American Psychiatric Association, 2000), which stated that gender identity disorder is a hormonal/biological intra-uterine phenomenon and that the criteria for gender identity disorder are descriptive of many people who experience dissonance betweentheir sex as assigned at birth and their gender identity. [12] The complaint also relied on standards of care adopted by the World Professional Association for Transgender Health,described as the professional consensus about the psychiatric, psychological, medical and surgical management of gender identitydisorder.

According to the Association, “...sex reassignment plays an undisputed role in treating Gender Identity Disorder” and iscomprised of “a ‘Real Life Test,’ legal name and sex name change on identity documents, as well as medically necessary hormonetreatments, counselling, psychotherapy, and other medical procedures.” [13] In his complaint of October 1, 2009, Mr.

Buterman alleged that the School Board’s act of removing his name from thesubstitute teacher list was discrimination on the basis of gender and physical disability contrary to s 7(1) of the Act. [14] On January 8, 2010, the School Board filed its reply, relying on the special nature of Catholic schools, the requirement thatall teachers act as models and witnesses of the teachings of the Catholic Church, and the decision of the Supreme Court of Canada inCaldwell v Stuart, (SCC), [1984] 2 SCR 603. [15] On January 29, 2010, Mr.

Buterman filed a response in which he challenged the School Board’s claim that it is a “mixedpublic/separate school legal entity” and its position that its work rule is lawful. [16] On April 1, 2010, the School Board filed a rejoinder, addressing the response of Mr. Buterman.

It sought to support its claimthat it operates denominational schools with the constitutional right to provide religious instruction, that it may conduct its schools in amanner consistent with its denominational values, and otherwise arguing for its right to dismiss teachers for denominational cause. [17] On May 20, 2011, the Director summarily dismissed Mr. Buterman’s complaint against the School Board as being withoutmerit, pursuant to s 22(1)(

a) of the Act.

[ 18 ] On June 27, 2011, Mr. Buterman requested a review of the Director ’ s decision. On July 21, 2011, the School Board filed a reply to the request for a review, asking the Chief to affirm the Director ’ s decision to dismiss Mr. Buterman ’ s complaint or, in the alternative, to order the Director pursuant to s 22(1)(

b) and (

c) of the Act to: (

i) consider whether St. Albert Catholic Schools and Jan Buterman entered into a settlement agreement; or (ii) determine whether Jan Buterman refused to accept a proposed settlement that was fair and reasonable. [ 19 ] On July 21, 2011, the School Board asked the Director to deal with the settlement issues under s 22. On July 28, 2011, the Director replied, declining to resolve those issues on the basis he did not have the authority to reconsider a decision to dismiss a complaint. [ 20 ] On July 16, 2012, the Chief overturned the Director ’ s May 20, 2011 decision and directed that a tribunal hear Mr.

Buterman ’ s complaint. The Chief did not address the alternative remedy requested; i.e. that the Chief order the Director to deal with the settlement issues. [ 21 ] The Chief concluded that: “ ... the standard used by the Director, ‘ reasonable prospect of success, ’ was too high and not in keeping with the jurisprudence in this area. ” He wrote that: Whether or not constitutional protections under

section 17 extend to a public Roman Catholic school board is dependant upon an analysis which engages history, statutory

interpretation and application of relevant case law. Without prejudging the issue, there appears to be a reasonable basis in the evidence that on statutory

interpretation,

section 17 read with the

Chapter 29 of the Ordinances, while protecting certain religious instruction, may provide constitutional protection to only “ separate ” denominational boards. In other words, minority denominational rights were intended to be protected but not those of the majority, who could protect themselves through the democratic process. Again, without pre-judging the issue, while amalgamation or reorganization of the school boards and districts may not have intended to deny Catholic ratepayers now in a public Catholic board constitutional protection, the information supports that this may have been the result.

The extent of constitutional protection of Roman Catholics, has, over the years, been the subject of complex litigation at the very highest level of Court. At this gatekeeping stage in the process, given the comprehensive submissions before me which appropriately set out important and novel questions of law as outlined above, there is a reasonable basis to proceed to Tribunal. [ 22 ] In a letter dated September 20, 2012, the School Board again asked the Chief to address the relief it sought and to order the Director to deal with the settlement issue.

By correspondence of September 24, 2012, the Chief declined to do so, advising that: “ [y]ou have my considered decision in this matter. ” [ 23 ] In a separate letter dated September 20, 2012, the School Board asked the Director to address the settlement issue.

On September 25, 2012, the Director returned that letter and on September 27, 2012 he declined to address the settlement issue raised by the School Board, advising that the matter had been sent for a tribunal hearing and that further correspondence should be directed to the Chief. [ 24 ] On October 3, 2012, the School Board filed an originating application for judicial review seeking an order in the nature of certiorari to set aside the decision of the Chief.

In the alternative, the School Board seeks an order directing the Chief to order the Director to consider whether the parties entered into a settlement agreement and whether Mr. Buterman refused to accept a proposed settlement offer that was fair and reasonable. In the second alternative, the School Board seeks an order in the nature of mandamus requiring the Director to consider the settlement issues.

On October 3, 2012, the School Board also filed a notice to obtain the record of proceedings. [ 25 ] On November 13, 2012, the Chief provided a draft certified record of proceedings and a separate production entitled, “ Documents that are disputed: whether the documents form part of the Certified Record of Proceedings ” (the “ Disputed Documents ” ) for discussion purposes.

[ 26 ] On January 11, 2013, the School Board provided a revised draft record of proceedings suggesting further documents be included in the record. The Chief disagreed with the suggestions since his proposed record included all documents that were before him when he made his decision. [ 27 ] On January 31, 2013, the Chief filed the certified record of proceedings as well as the Disputed Documents.

There are additional documents the School Board contends are relevant and should be included in the certified record. [ 28 ] On March 22, 2013, the School Board filed a notice of application for further and better production of the certified record by the Chief, an application that is opposed by the Chief. They also ask that the Director file a certified record. III. Legislation [ 29 ] The applicable sections of the Act include: 7(1) No employer shall (

a) refuse to employ or refuse to continue to employ any person, or (

b) discriminate against any person with regard to employment or any term or condition of employment, because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person. (2) Subsection (1) as it relates to age and marital status does not affect the operation of any bona fide retirement or pension plan or the terms or conditions of any bona fide group or employee insurance plan. (3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement. . . . 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 of the Commission and Tribunals that the parties are unable to settle the comp1aint.

. . . 44(1) In this Act, (h) “ mental disability ” means any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder; . . . (l) “ physical disability ” means any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes epilepsy, paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, and physical reliance on a guide dog, service dog, wheelchair or other remedial appliance or device; [ 30 ] The following Rules also are relevant: 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense, (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, (

d) to oblige the parties to communicate honestly, openly and in a timely way, and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments.

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court, (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules, and

(

d) when using publicly funded Court resources, use them effectively.

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it. . . . 3.15(2) Subject to rule 3.16 [Originating application for judicial review: habeas corpus ], an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5 [Variation of time periods] does not apply to this time period. . . . 3.19(1) On receipt of an originating application for judicial review and a notice in accordance with rule 3.18 [Notice to obtain record of proceedings], the person or body named in the notice must, as soon as practicable, (

a) comply with the notice and send to the court clerk a certified record of proceedings in Form 9, or (

b) provide in Form 9 a written explanation why the notice cannot be complied with or fully complied with.

(2) The certified record of proceedings sent to the court clerk under this rule constitutes part of the court file of the originating application.

(3) If the Court is not satisfied with the explanation for not sending all or part of the record of proceedings, the Court may order any or all of the following: (

a) the person or body to provide a better explanation; (

b) the person or body to send a certified copy of a record to the court clerk; (

c) the person or body to take any other action the Court considers appropriate. 3.20(1) The Court may make an order for the production of the certified record of proceedings of a person or body if the conditions described in subrule (2) are met.

(2) The conditions are: (

a) the originating application for judicial review is for an order other than an order to set aside a decision or act; (

b) the certified record of proceedings is required to establish the claim;

(

c) the person or body that is the subject of the originating application has not sent to the court clerk the certified record of proceedings within a reasonable time after the originating applicant ’ s written request for the person or body to do so.

(3) If the Court orders the certified record of proceedings to be sent to the court clerk, rules 3.18(3) [Notice to obtain record of proceedings] and 3.19 [Sending in certified copy of record of proceedings] apply, unless the Court otherwise orders. . . . 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside; (

c) that judgment or an order be entered; (

d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim.

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b).

(4) The Court may (

a) strike out all or part of an affidavit that contains frivolous, irrelevant or improper information; (

b) strike out all or any pleadings if a party without sufficient cause does not (

i) serve an affidavit of records in accordance with rule 5.5 [When an affidavit of records must be served],

(ii) comply with rule 5.10 [Subsequent disclosure of records], or (iii) comply with an order under rule 5.11 [Order for a record to be produced]. [ 31 ] Rule 753.14(1) of the former Rules of Court , Alta Reg 390/68 , provided: 753.14(1) Where relief other than an order to set aside a decision or act is claimed on an application for judicial review and the applicant is of the opinion that the record is necessary to establish the claim, he may apply to the court to require the person from whose decision or act relief is claimed to make the return unless that person consents to file a return.

(2) The court may in its discretion order or refuse to order the return of the record or any part thereof.

(3) Where the court orders the return of the record, Rules 753.12(2) and 753.13 apply except as altered by the order of the court. IV. Issues [ 32 ] The issues on this application include: A. Whether the Director has standing to bring the application under Rule 3.68(1)(

a) to strike the School Board ’ s originating notice for judicial review. B. Whether one or more of the conditions under Rule 3.68(2) apply and the circumstances warrant the striking out of the School Board ’ s originating notice for judicial review. C. Whether the application by the School Board for a further and better record should be granted. V. Analysis A. Whether the Director has Standing to Bring the Application under Rule 3.68(1)(

a) to Strike the Originating Notice for Judicial Review [ 33 ] The School Board in its application for judicial review seeks as an alternative remedy an order requiring the Director to determine whether the parties entered into a settlement agreement and whether Mr. Buterman refused to accept a proposed settlement offer that was fair and reasonable. [ 34 ] The Director applies to strike out that aspect of the School Board ’ s application. [ 35 ] The School Board takes the position the Director has no standing to challenge its application.

[36] Traditionally, tribunals have not been permitted to participate in proceedings in review of the merits of their own decision. Forthe tribunal to take on an adversarial role to defend its own decision would be to enter into the fray, undermining its neutrality andintegrity, as colourfully stated by Côté JA in Brewer v Fraser Milner Casgrain LLP, 2008 ABCA 160 at para 37, 432 AR 188: The policy of Canadian law (and doubtless English law) is plain. The statutory tribunal should be patently neutral.

It cannot do that if itdons the uniform of one army, still less if it enters that army’s front line and joins its bayonet charge. [37] The Director here does not seek to argue on the merits of the Buterman complaint.

Rather, he has applied to strike the SchoolBoard’s application as it relates to him on the grounds it was brought beyond the six month time limitation prescribed by the Rules andthe remedy it seeks of returning the matter to him for decision is not available as he is functus officio. [38] The Director argues that his “courtesy letter” of September 27, 2012 was not a “decision, act or omission” within the meaningof s 3.15(1) of the Rules so as to be subject to judicial review.

He contends that the “decision, act or omission” must be quasi-judicial,relying on Nguyen v Alberta (Alberta Worker’s Compensation Appeals Commission), 2008 ABQB 624 at paras 19-22, 470 AR 1. Inthat case, the applicant wrote to the Registrar requesting information. The Registrar then wrote a letter providing the information,referring back to a previous decision.

Moen J found that this letter was not a decision amenable to judicial review as the letter did notdisclose a decision or even an “act;” it merely provided information mostly in the form of quotations from the decisions made muchearlier by the Appeals Commission. Moen J (at para 21) agreed with Veit J’s statement in Johannesson v Alberta (Workers’Compensation Board, Appeals Commission) (1995), (AB KB), 175 AR 34 (QB) that an “act” must be quasi-judicial,“...that is, there must be a decision or something done that affects the rights of a party.

To decide otherwise would put every act by everycivil servant within the purview of judicial review...” [39] The Director maintains his September 27, 2012 letter was simply a reiteration of the decision he made on July 28, 2011 andas the School Board’s application for judicial review was not filed until October 3, 1012, it is time barred. [40] The Director submits that, in any event, from the time his letter issued dismissing the complaint on May 20, 2011, he wasfunctus officio.

He relies on Brochu v Grande Prairie (City of), 2004 ABQB 182, 358 AR 220, in which Veit J dealt with an applicationto set aside a decision of the City’s Chief Administrative Officer. She considered whether the Chief Administrative Officer hadexhausted his jurisdiction to decide or whether he could issue a revised decision.

She concluded that he could not do so, stating at para24: “[o]nce a tribunal - and the Chief Administrative Officer is a tribunal in this context - makes a decision, it cannot change its decisionjust because it ‘has changed its mind, made an error within jurisdiction or because there has been a change in circumstances.’” [41] Mr. Buterman asserts that decisions of the Director are not subject to judicial review.

If they are, he points out that theSeptember 20, 2012 letter from the School Board and the September 27, 2012 response from the Director were, in essence, a repeat ofthe July 21 and 28, 2011 letters from the School Board and the Director respectively. He argues that as the School Board did not seekjudicial review of the Director’s July 28, 2011 decision within six months of that decision, the application for review was time barredwhen it was filed on October 3, 2012.

He says review of both sets of correspondence shows unequivocally that the Director was beingasked to address the same issues for the same reasons in both requests, the latter being merely an attempt to revive the expired limitationperiod. [42] The School Board takes the position it filed its application for review within six months from the act which is the subject ofits application. It does not agree that the Director was functus officio from May 20, 2011 when he dismissed the complaint, or by June 27,2011 when the complaint was referred to the Chief.

Nor does it agree that the pivotal decision by the Director to decline to deal with thesettlement issues under s 22 was made in July of 2011. [43] The School Board maintains that it is a matter of jurisdiction whether the Director was required to make a determination onsettlement or was entitled to simply dismiss the complaint under s 22(1). It argues that a statutory delegate under the Act does not havejurisdiction to continue processing a complaint where the complainant and the respondent have settled the complaint, or where thecomplainant has refused to accept a fair and reasonable settlement offer.

It contends that only the Director has the jurisdiction orauthority to determine whether a settlement has been reached. It submits that the Director has original jurisdiction and the Chief hasappellate jurisdiction to determine whether a complainant has refused to accept a fair and reasonable settlement proposal. The SchoolBoard argues that a tribunal only has jurisdiction to decide whether a complaint is meritorious or not.

[ 44 ] The circumstances when a tribunal may participate in judicial review proceedings was recently considered by the Alberta Court of Appeal in 1447743 Alberta Ltd v Calgary (City) , 2011 ABCA 84 , 502 AR 330 . Martin JA, writing for the court, indicated (at para 6) that there is no hard and fast rule relating to this issue. He explained that the scope of a tribunal ’ s participation depends on judicial discretion, taking into account the circumstances of the case and the context of the proceedings. Relevant factors include, but are not limited to: (

a) any legislative provisions dealing with the scope of the tribunal's authority to appear before the court; (

b) the extent to which other interested parties are able and willing to provide an adversarial context to the proceedings; (

c) the expertise of the tribunal; and (

d) the nature of the proceeding and the issues raised on judicial review. The preservation of the tribunal's integrity and impartiality remains the overriding concern. [ 45 ] In the present case, there are no legislative provisions dealing with the Director ’ s authority to appear in court on a judicial review application. While Mr. Buterman has made submissions relating to whether the School Board ’ s application is time barred and whether the Director had fulfilled his mandate and is functus officio , in my view the Director is in a better position to do so, in particular with respect to the latter issue.

Allowing him to present arguments on those issues would not have a negative effect on his impartiality or integrity. [ 46 ] Whether decisions of the Director generally are amenable to judicial review and whether his letter of September 27, 2012 is amenable to judicial review in this factual context are process issues with on-going implications for proceedings under the Act. Whether the Director must, when dismissing a complaint, also deal with the issue of settlement under s 22 is a question that has on-going implications for proceedings under the Act. It is a matter of

interpretation of the legislation also within the purview of the Director ’ s administration of the Act.

Whether the Director has fulfilled his function under the Act in dismissing the complaint, although the settlement issue was not addressed, is a question with jurisdictional dimensions. [ 47 ] The School Board itself contends that the obligation on the Director to act is a matter of jurisdiction, a procedural condition precedent to the Chief ’ s exercise of jurisdiction to send the complaint to a tribunal. [ 48 ] Generally, administrative tribunals have been permitted to make submissions on their jurisdiction. [ 49 ] I am satisfied that the Director should have standing to argue the narrow issues that concern his role in the administration of the Act and, specifically, whether he was required to consider the settlement issues when dismissing the complaint as a condition precedent to the Chief ’ s jurisdiction to advance the complaint to tribunal.

The Director may also make submissions on the question of whether the application by the School Board was filed within the six month time limit prescribed by the Rules, a question inextricably bound up with what he was or was not required to do concerning settlement at the time of dismissal of the complaint. However, if the time limits argument succeeds, the other issues may be moot. [ 50 ] The Director also has standing to make submissions on the issue raised by Mr. Buterman as to whether any of his decisions or actions are amenable to judicial review at all.

If the originating application against the Director is time-barred, this question too may be moot. [ 51 ] The challenge by the School Board to the Director ’ s standing to participate in the proceedings is dismissed. [ 52 ] As agreed by all, the Director does not have standing to argue the merits of the originating application brought by the School Board. B. Whether One or More of the Conditions under Rule 3.68(2) Apply and the Circumstances Warrant the Striking Out of the School Board ’ s Originating Notice for Judicial Review Against the Director [ 53 ] The Director and Mr.

Buterman submit that the Director ’ s decisions are not open to judicial review. The Director takes the position that the School Board ’ s application is time barred. He contends that it is plain and obvious that the remedy sought by the School Board of returning the matter to him to determine whether there was a settlement or a fair and reasonable settlement offer is not available.

[54] There is considerable doubt whether an application under Rule 3.68(1)(

a) is available to strike out an originating notice forjudicial review (CUPE, Local 8 v Health Region #4 ((c.o.b. Calgary Regional Health Authority)) (1997), 1997 ABCA 189 ,200 AR 175 (CA)). As noted in CUPE at para 14, on an application to strike out an originating notice for failure to disclose a reasonablecause of action, the Court would have to look at the affidavit filed in support of it, but Rule 3.68(3) specifically states that no evidencemay be heard on an application made on the basis that the pleading discloses no reasonable claim.

Even if an originating notice can bestruck out under Rule 3.68(1)(a), generally such an application is ill advised as it will save a day or two of chambers time at most ifsuccessful but, as recognized by the court in CUPE at para 17: ... If the motion is heard but fails, it wastes some weeks of preparation and waiting time, and some hours of judicial time. And the issueswill have to be argued afresh before a different judge.

If the motion to strike out is granted but then reversed on appeal, as often happens,it wastes a year or so of preparation and waiting time, and the judicial time of four judges (one Queen's Bench and three appellatejudges). Yet all the substantive issues still remain to be argued and decided. [55] I too am doubtful whether a s 3.68(1)(

a) application to strike should be available for judicial review applications, particularlygiven foundational rule Rule 1.2(2)(b), which provides that the Rules are intended: “... to facilitate the quickest means of resolving aclaim at the least expense.” [56] Here, the issues raised by the application to strike are inextricably bound up with the factual and legal issues on thesubstantive application for judicial review. The

interpretation of ss 21 and 22 of the Act; the Director’s role during the process fromfiling of the complaint to its dismissal; the obligation on the Director, if any, to consider the settlement issues; whether referral to theChief renders the Director functus officio; all are issues that will be argued on the merits of the School Board’s application and ultimatelywill shed light on the time limits issue. [57] Although I am doubtful about the availability of striking out as a remedy in the case of an originating notice, I will dispose ofthe application on its merits, as did the court in CUPE. [58] Under Rule 3.68(1)(a), the Court may strike out all or any part of a claim “if the circumstances warrant and a condition undersubrule (2) applies.” Those conditions are that: (

a) the Court has no jurisdiction; (

b) the commencement document discloses noreasonable claim; (

c) the commencement document is frivolous, irrelevant or improper; (

d) the commencement document constitutes anabuse of process; or (

e) an irregularity in the commencement document is so prejudicial to the claim that it is sufficient to defeat theclaim. 1. Whether the Court has jurisdiction to grant a judicial review remedy against the Director [59] The Director relies on dicta from the Alberta Court of Appeal in Mis v Alberta Human Rights Commission, 2001 ABCA212 at para 10, 293 AR 391.

The court stated in that case that the complaint should be returned to the Chief since “...we have noauthority to return it to the Director.” I note, however, that the judicial review application in Mis was brought in relation to the decisionof the Chief, not the Director. [60] Mr. Buterman contends there is no right under the Act to challenge decisions of the Director by way of judicial review, butsubmits that this question should properly be deferred to the hearing on the merits of the originating application.

He maintains that theAct sets out a complete process for the resolution of human rights complaints and it provides for an appeal to the Chief rather than forjudicial review of a decision of the Director. [61] The School Board argues the right to judicial review in Alberta is granted under the Judicature Act, RSA 2000, c J-2, ss 4, 5,8, 28.1; the Court of Queen’s Bench Act, RSA 2000, c C-31, s 2; and Rules 1.3 and 3.15; and that exceptionally clear language would berequired to limit such jurisdiction, relying on Gateway Charters Ltd. v Edmonton (City), 2012 ABCA 93, 522 AR 56. [62] In Eastaugh v Halat, 2009 ABCA 122, 448 AR 377, the Alberta Court of Appeal stated at para 19 that a striking outapplication may be made where it is alleged that another forum has exclusive jurisdiction over a matter.

The court referred to YoungEstate v TransAlta Utilities Corp. (1997), 1997 ABCA 349 , 209 AR 89 at para. 17 (CA), in which it had cautioned that:

[A] Statement of Claim should not be wholly or partly struck out under Rule 129 unless it is beyond doubt or plain and obvious that theclaims made ... are within the purview of the collective agreement and their resolution exclusively reserved to the grievance andarbitration procedure. [63] Is it plain and obvious in the present case that the Court has no jurisdiction to grant judicial review of a decision of theDirector? [64] Superior courts retain supervisory jurisdiction over administrative tribunals (Alberta (Workers' Compensation Board) vAppeals Commission, 2005 ABCA 276 at para 8, 371 AR 318).

However, they have the discretion to refuse to exercise this jurisdictionif there is an adequate alternative remedy available, such as an administrative appeal (Harelkin v University of Regina, (SCC), [1979] 2 SCR 561 at 588; Canadian Pacific Ltd. v Matsqui Indian Band, (SCC), [1995] 1 SCR 3 at para 30.The factors taken into consideration in determining if there is an adequate alternative remedy include “the convenience of the alternativeremedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities)”(Canadian Pacific Ltd. at para 37). [65] In Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 at para 22, [2006] 1 SCR 513, theSupreme Court of Canada cited Canadian Pacific Ltd. in commenting with respect to a different administrative regime that: ... for an applicant whose application for income support is still denied after the internal review, the SBT is a forum that cannot easily beavoided.

It is the SBT that is empowered by the legislature to decide income support appeals binding on the Director: s. 26(3). Given theexistence of an appeal to the SBT, it is not at all clear that an applicant could seek judicial review of the Director's decision without firstarguing before the SBT: see Canadian Pacific Ltd. v. Matsqui Indian Band, (SCC), [1995] 1 S.C.R. 3, at paras. 32-38,112 and 140-53. [66] In the present case, Mr. Buterman requested that the Director’s decision to dismiss his complaint be sent to the Chief forreview. In its reply to Mr.

Buterman’s review request, the School Board asked the Chief to order the Director to consider whether theparties had entered into a settlement agreement or determine if the complainant had refused to accept a fair and reasonable settlementoffer. The School Board made the same request of the Director. The Chief overturned the Director’s dismissal of the complaint andappointed a tribunal to hear the matter. He refused to make the order sought by the School Board.

The Director did not respond to theSchool Board’s request. [67] The Act gives the complainant the right to request a review of the Director’s decision to dismiss a complaint.

However, thereis no express right given to the person named in the complaint who is alleged to have contravened the Act to have the Chief review anyactions or inaction by the Director. [68] In my view, it is not plain and obvious in the circumstances that jurisdiction does not exist in the Court to make an order inthe nature of mandamus requiring the Director to make the determinations sought by the School Board. [69] The question of whether a decision by the Director or his failure to determine issues is amenable to judicial review is properlydealt with when the merits of the originating application are considered. 2.

Whether the originating notice discloses no reasonable claim? [70] Our courts have held that the test to strike out all or part of a claim as not meeting the condition in Rule 3.68(2)(

b) remainsthe same as under the old Rule 129(1)(a) (Donaldson v Farrell, 2011 ABQB 11 at para 30). The test was recently re-affirmed in Wankev University of Calgary, 2011 ABCA 235. The court in that case stated at para 16:

The test for striking a claim is a stringent one, as described in Hunt v. Carey Canada Inc., (SCC), [1990] 2 SCR 959 at980, 74 DLR (4th) 321: [A]ssuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claimdiscloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should notbe "driven from the judgment seat".

Neither the length and complexity of the issues, the novelty of the cause of action, nor the potentialfor the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action iscertain to fail because it contains a radical defect ... should the relevant portions of a plaintiff's statement of claim be struck out ... . [71] According to Rule 3.68(3), no evidence may be submitted on an application made on the basis that no reasonable claim ordefence is disclosed in the commencement document or pleading.

A court must assume that the facts set out in the pleading can beproved and determine if it is plain and obvious that the pleading discloses no cause of action (Wanke at para 16). [72] The Director’s application to strike is based in part on his contention that the School Board’s application for judicial reviewwas filed out of time. That is not an attack on the sufficiency of the pleadings (Canadian Deposit Insurance Corporation v Prisco(1994), (AB KB), 158 AR 305 at paras 22,24 and 25 (QB)).

As stated in WA Stevenson and JE Côté’s Alberta CivilProcedure Handbook 2012 (Edmonton: Juriliber, 2012), vol 1, p 3-104: Another misuse of R. 3.68 is trying to strike out the statement of claim by alleging that the defendant has a good defence. For example,the defendant says that the statement of claim was issued after the limitation period expired. But that does not mean that there is no causeof action; there is nothing the matter with the statement of claim.

Rather, it means that there is a defence, which is not the same thing. [73] The Director also argues that the remedy sought by the School Board of returning the matter to him for a determination as towhether there was a settlement or a fair and reasonable settlement offer is unavailable as he is functus officio. This argument, like thelimitations issue, is one of fact and law and is not one which addresses whether the School Board has a reasonable claim.

As noted in theCanada Deposit Insurance Corporation decision, such issues are ill suited for determination on an application to strike the pleadings. [74] It is not plain and obvious from the pleadings that the application does not disclose a reasonable claim. 3.

Whether the originating application is frivolous, irrelevant or improper [75] The School Board contends that in order to demonstrate the originating application is frivolous, irrelevant or improper, theDirector must show it “adds nothing but unnecessary colour to the allegations” in the pleading, and is “unconnected in any material waywith any cause of action the Plaintiff has alleged, either as an element of the cause of action or facts necessary to support the cause ofaction...,” relying on L(

P) v Alberta, 2012 ABQB 309 at paras 61,62 and 66, 529 AR 21. [76] The School Board indicates in its originating application that it asked the Director to make a determination whether theparties had settled the matter or whether Mr. Buterman had rejected a fair and reasonable settlement offer. It states the Director did notrespond to this request, although in its submissions it contends the Director in fact refused the request.

While not set out in the originatingapplication, the School Board in argument on this striking out application took the position that only the Director has the authority underthe Act to determine the settlement issues, he has a duty to make that determination if requested by a party to do so, and that if asettlement was reached or if Mr. Buterman refused a fair and reasonable settlement offer, the matter could not or should not have beenreferred on to a tribunal.

As noted in Tottrup v Alberta (Minister of Environmental Protection), 2000 ABCA 121 at para 9, 255 AR204, if a pleading is unclear, the Court will construe it generously. [77] It is not plain and obvious that the originating notice is frivolous, irrelevant or improper. A finding, as above, that theDirector has failed to establish the pleadings do not disclose a reasonable claim means, in the context of this case, he has also failed toestablish the claim is frivolous, irrelevant or improper. 4. Whether the claim is an abuse of court process

[ 78 ] The School Board argues that abuse of process is “ a compendious principle that the courts use to control misuses of the judicial system, ” quoting from Reece v Edmonton (City) , 2011 ABCA 238 at para 16 , 513 AR 199 . It submits that abuse of process may apply in different contexts such as re-litigation of issues, fairness of trial procedures, delay in proceedings and proceedings that are vexatious and oppressive. [ 79 ] It is true there is much authority trending against obstreperous measures taken in judicial proceedings designed to avoid or delay a hearing of the issues on the merits.

However, there is no evidence that such motivations are the basis of the originating application brought by the School Board in this case. [ 80 ] I find that it is not plain and obvious that the School Board ’ s originating application is an abuse of the Court ’ s process. 5. Conclusion on whether the originating application should be struck [ 81 ] In the result, the Director has not demonstrated that any of the conditions for an order under Rule 3.68(1)(

a) to strike all or part of the School Board ’ s claim have been met. He has not shown that the circumstances warrant the order sought. The application to strike the pleadings, to the extent a remedy is sought against the Director, is dismissed. C. Whether the Application by the School Board for a Further and Better Record Should be Granted [ 82 ] The School Board applies under Rule 3.19(3) for an order expanding the record returned by the Chief.

What is required under Rule 3.18 (2) is the written record of the decision, the reasons given for the decision, the originating document (here, the complaint), the evidence and exhibits filed with the Chief, and anything else relevant to the decision in the possession of the person or body. The Rule further provides that the test for production is relevance. [ 83 ] The School Board does not contend that the Chief has not met the requirements of Rule 3.18(2).

It argues, however, that under the old rule, “ all things touching the matter ” that remained in the decision-maker ’ s custody were required to be provided, and that under the new rule this category has become “ anything else relevant to the decision or act in the possession of the person or body. ” In advancing this argument, it relies on IMS health Canada Ltd. v Alberta (Information & Privacy Commissioner) , 2005 ABCA 325 , 442 AR 268 . Significant authority was provided elaborating on what documents fall within the relevancy marker.

Each articulation of the requirement for production of the record reiterates explicitly or implicitly that it is all things relevant to the decision “ in the possession of the person or body. ” [ 84 ] The position of the Chief is that all documents, submissions and letters that were in front of him when he made his decision have been included in the certified record. He says the School Board has not established the grounds for including further correspondence or submissions in the certified record.

He submits that it is only where there are allegations of bias or breach of natural justice that a court will permit any other or new evidence in support of a judicial review application, citing Silverman v Alberta (Human Rights Commission) , 2012 ABQB 152 at paras 7-14 , 66 Alta LR (5th) 408 . [ 85 ] The Chief also refers to the general principles regarding the record in the context of a judicial review application as set out in Alberta Liquor Store Assn. v Alberta Gaming and Liquor Commission) , 2006 ABQB 904 at paras 40-42 , 406 AR 104 .

These principles narrowly circumscribe the occasions when material in addition to that considered by the decision-maker will be permitted. In my view, her position has much to commend it. A straightforward, scalpel-like approach to litigation, although perhaps old-fashioned, illuminates a strong argument while voluminous repetitious material has a tendency to waste time and obfuscate. [ 86 ] The School Board acknowledges that the Chief has included in the record all things relevant that were in his possession when he made his decision.

It candidly admits it is a sense of orderliness that propels this application for more materials to be filed with the record. I find that there is no shortage of correspondence on behalf of the School Board setting out and repeating its arguments. However, this added correspondence does not meet the fundamental test of having been in the possession of the Chief when he made his decision. It was not subject to his consideration during his decision-making.

[ 87 ] The application by the School Board for an order requiring the Chief to file a further and better certified record is dismissed. [ 88 ] The application for production of a certified record by the Director is granted, even though it has not yet determined if his decisions or failure to decide an issue is subject to judicial review, the application for judicial review as it relates to him was brought in time or whether he is functus officio . Submissions can be made on all of these issues at the same time as the merits of the application are considered. VI.

Conclusion [ 89 ] The challenge by the School Board to the Director ’ s standing to participate in the proceedings in respect of the remedies sought against him is dismissed. As agreed by all, the Director does not have standing to argue the merits of the originating application brought by the School Board. [ 90 ] The application by the Director to strike the originating application brought by the School Board under Rule 3.68(1) is dismissed, as the circumstances do not warrant such an order and none of the conditions for the order have been met.

The issues raised by the Director concerning the timeliness of the originating application insofar as it seeks a remedy against him and whether he is functus officio will be dealt with along with the merits of the originating application. [ 91 ] The issue raised by Mr.

Buterman as to whether the Director ’ s decisions are amenable to judicial review also is properly decided with the merits of the School Board ’ s originating application, rather than through the lens of an application to strike the pleadings under s 3.68(1). [ 92 ] The application by the School Board for further and better production of a certified record by the Chief is dismissed.

The School Board ’ s application for production of a certified record by the Director is granted. [ 93 ] The parties may speak to costs either by scheduling a special hearing or at the time that this matter is argued on its merits in December of 2013. Heard on the 22 nd day of May 2013. Dated at Edmonton, Alberta this 26 th day of August, 2013. Madam Justice Sheila J. Greckol J.C.Q.B.A. Appearances: Mr. Kevin P. Feehan, QC and

Mr. Trevor J. Goulet (Dentons Canada LLP) for The Board of Trustees of The Greater St. Albert Roman Catholic Separate School District No. 734 Ms. Janice R. Ashcroft (Alberta Human Rights Commission) for the Chief of the Commission and Tribunals, Alberta Human Rights Commission Ms. Leanne M. Chahley (Blair Chahley Lawyers) for Jan Buterman Mr. Arman M. Chak (Alberta Human Rights Commission) for the Director, Alberta Human Rights Commission