Holmstrom v Alberta (Human Rights Commission), 2021 ABQB 400

Court of Queen’s Bench of Alberta Citation: Holmstrom v Alberta (Human Rights Commission), 2021 ABQB 400 Date: 20210520 Docket: 1903 25035 Registry: Edmonton Between: Philip Holmstrom Applicant - and - Alberta Human Rights Commission (Office of the Chief of the Commission and Tribunals) and Her Majesty the Queen in Right of Alberta Respondents _______________________________________________________ Decision of the Honourable Madam Justice M. Hayes-Richards _______________________________________________________ Introduction [ 1 ] Mr.

Philip Holmstrom [Applicant] filed a complaint with the Alberta Human Rights Commission [Commission] alleging that his employer’s termination of him was discriminatory and caused by his mental disability, namely his post-traumatic stress disorder [PTSD]. Specifically, the complaint alleged the Respondent failed to provide the necessary accommodation, and terminated him as a result of his mental disability. The complaint was dismissed by the Director of the Commission [Director]. On appeal to the Chief of the

Commission and Tribunals [Chief], the Chief upheld the Director’s decision, indexed at: Holmstrom v Alberta Justice and Solicitor General , 2019 AHRC 21 [ Chief’s Decision ]. The Applicant now applies to this Court for judicial review. [ 2 ] The Applicant submits that the Chief’s Decision to dismiss his complaint was unreasonable because he failed to:

i) account for relevant evidence; ii) recognize that the Respondent failed in its duty to inquire into his mental health; and iii) recognize that the Respondent’s reason for terminating him was caused or contributed to by his PTSD. [ 3 ] At the oral hearing of this matter, the Respondent expressed a concern that in raising a duty to inquire (ii above), the Applicant was raising a new issue on judicial review that he had not raised before the Chief.

Leave was given for the parties to provide additional written submission on this issue. [ 4 ] The Chief’s role was to assess whether there was a reasonable basis in the evidence to proceed to adjudication. I find the Chief’s Decision to dismiss the complaint was unreasonable in assessing whether there was a reasonable basis in the evidence to proceed to adjudication.

He failed to account for relevant evidence, failed to recognize that the Respondent may have failed in its duty to inquire into the Applicant’s mental health, and failed to recognize that the Respondent’s reason for terminating the Applicant could have been caused or contributed to by his PTSD. Background [ 5 ] From January 4, 2012 to August 1, 2013, the Applicant was employed by the Government of Alberta as the Director, Information and Security and Corporate Information Security Office.

The Applicant says that on December 14, 2012, he was assaulted by a Government Contractor [Contractor] in an incident that took place outside the workplace. Following this assault, the Applicant began to experience enhanced anxiety, exacerbated by the presence of or discussions about the Contractor. [ 6 ] On or about December 20, 2012, the Applicant says he reported the assault to his direct supervisor, Mr. Chatwin, in the presence of another employee, Mr. MacDonald. Mr.

Chatwin denied the assault was mentioned, but all three parties appear to agree that the Applicant was having difficulties at this meeting, variously described as “distressed,” “crying” and “extremely agitated.” The Government’s Employee Family Assistance Program [EFAP] was brought up during the meeting, and the Applicant says that he told Mr. Chatwin that he was receiving counselling through EFAP. While there is discrepancy in the evidence, the Applicant says that he informed Mr. Chatwin of his PTSD diagnosis on January 10, 2013.

The Applicant says that he encountered the Contractor at the worksite in late January 2013, and it caused him to become nauseated and ill for the remainder of the day. On February 21, 2013 the Applicant took two weeks of medical leave. According to the Applicant, he reminded Mr. Chatwin on April 15, 2013 that he was suffering from PTSD and should not have any dealings with the Contractor. [ 7 ] On April 29, 2013, the Applicant had a meeting with Mr. Chatwin and others to discuss his ongoing concerns about the Contractor.

The parties disagree as to what exactly happened at the meeting, but it resulted in the Applicant taking an extended medical leave on May 1, 2013. The Respondent says that the decision to terminate the Applicant was made within a day or so following the meeting because the Applicant had threatened a breach of his Oath of Office [outburst]. [ 8 ] On June 18, 2013, the Applicant wrote to the Respondent attaching a letter dated May 30, 2013 from his psychiatrist to his treating physician.

Although portions of the letter are blacked out, the psychiatrist confirms that the Applicant has PTSD secondary to a violent incident, and requires treatment. [ 9 ] On June 24, 2013, the Respondent wrote to the Applicant’s family physician, who responded on or about July 22, 2013.

The treating physician stated that the Applicant could perform modified duties commencing August 1, 2013 and should be able to return to full duties within a week. [ 10 ] The Applicant returned to work on August 1, 2013 and was terminated that day. [ 11 ] On October 25, 2013, the Applicant filed his complaint with the Commission alleging the Respondent discriminated against him based on mental disability, his PTSD, by failing to accommodate his disability and ultimately terminating him from his employment. [ 12 ] On January 7, 2014, the Respondent filed a response to the complaint, disputing many of the Applicant’s allegations, including whether it knew he had been diagnosed with PTSD or that he was seeking treatment for any medical condition until well after he commenced his extended medical leave in May 2013.

Legislative Framework and Chief’s Decision [ 13 ] Once the complaint was made, an Investigator was appointed to review the Applicant’s complaints. Along with the complaint materials submitted by the Applicant, the Investigator reviewed documentation and interviewed a number of people. The Investigator issued a report dated June 26, 2019, which recommended there was no reasonable basis to proceed further with the complaint. [ 14 ] Pursuant to s 22 of the Alberta Human Rights Act , RSA 2000, c A-25.5 [ Act ], the Director may dismiss a complaint at any time if the Director considers that it is without merit.

The Director reviewed the information, including the complaint, the response and the recommendation, and concluded on January 24, 2019 that there was no reasonable basis to proceed to the next stage of the complaint process. The complaint was dismissed.

[ 15 ] Where the Director dismisses a complaint, the complainant may request a review of the Director’s decision by the Chief, pursuant to s 26. Upon receiving a request for review, the Chief must review the record of the Director’s decision and decide whether the complaint should have been dismissed. [ 16 ] The Applicant filed a request for review of the Director’s decision. He took issue with many of the facts outlined in the Director’s decision and provided submissions aimed at establishing the Respondent had failed to take safety and security precautions in relation to the Contractor.

Despite the Director not addressing his concern in his complaint about the duty to inquire, the Applicant did not complain about this apparent oversight. The Applicant was not represented by counsel at this time, although he was when he filed the complaint. [ 17 ] On June 19, 2019, the Chief upheld the Director’s decision to dismiss the complaint.

He correctly articulated the legal test to be applied under s 26 of the Act as determining whether there is a reasonable basis in the evidence for proceeding to a hearing before a Tribunal, and noted the threshold is low and that he is given wide latitude in performing this screening function: Chief’s Decision at para 19, Record, Tab 1; Mis v Alberta Human Rights Commission , 2001 ABCA 212 at paras 8-9 . [ 18 ] The Chief found that the Applicant had provided no information that directly linked his termination to his disability, and noted the Respondent accommodated the Applicant’s medical leaves in February 2013 and again from May to August 2013.

The Chief considered the Applicant’s arguments against the Respondent’s assertion that it made the decision to terminate immediately after the April 29, 2013 meeting, finding them technical and noting that the Respondent had rational and credible explanation for each point raised. He also noted that two witnesses interviewed by the investigator confirmed the timing of the decision to terminate.

The Chief held that the Applicant was essentially seeking an opportunity to put the Respondent to the strict proof of its explanations, noting that the fact there are credibility issues, or matter in dispute, do not alone warrant referral for a full hearing: Chief’s Decision at para 26. [ 19 ] The Chief concluded that: [n]either the record compiled by the Investigator, nor the materials filed by the parties provide any support for the complainant’s assertion that the decision to terminate his employment was made after the employer received medical information about his disability sometime in June, or that disability was a factor in that decision.

Chief’s Decision at para 30 For these reasons, he dismissed the complaint. [ 20 ] On December 9, 2019, the Applicant filed this originating application for judicial review of the Chief’s Decision . Standard of Review [ 21 ] The Chief’s role in this case was to assess whether there was a reasonable basis in the evidence to proceed to adjudication. The threshold of a reasonable basis for adjudication is low.

The Chief does not determine whether the complaint is in fact made out or substantiated, rather, there only needs to be enough evidence to justify a hearing on the merits: Economic Development Edmonton v Wong , 2005 ABCA 278 at paras 15- 16 [ Wong ]. [ 22 ] The issues raised by the Applicant on review of the Chief’s Decision involve questions of mixed fact and law.

All parties agree, and I accept, that the jurisprudence is clear that the standard of review of the Chief’s Decision is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at paras 10 , 23-25 [ Vavilov ]; Wilson v Atomic Energy of Canada Ltd , 2016 SCC 29 at para 77 . [ 23 ] A reasonableness review, while still a robust form of review, has at its core judicial restraint and “respect for the distinct role of administrative decision makers”: Vavilov at para 13 .

It considers the “justification, transparency and intelligibility” of a decision: Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 [ Dunsmuir ]. Reviewing courts should respect administrative decision makers and their specialized expertise, should not ask how they themselves would have resolved an issue and should focus on whether the Applicant has demonstrated that the decision is unreasonable: Vavilov at paras 75, 83 .

This means “the focus of reasonableness review must be on the decision actually made by the decision maker” and the “reviewing court must consider only whether the decision made by the administrative decision maker – including both the rationale for the decision and the outcome to which it led – was unreasonable”: Vavilov at para 83 . In this context, reviewing courts “must refrain from ‘reweighing and reassessing the evidence considered by the decision maker’”: Vavilov at para 125 .

Ultimately, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”: Vavilov at para 85 . [ 24 ] Where a judicial review is upheld, the Supreme Court has said that there are limited situations where the Court would decline to remit the matter back to the original administrative tribunal. Most often, the matter would be returned to the decision-maker for reconsideration: Vavilov , at para 141-142 .

However, declining to remit may be appropriate where it is evident that a particular outcome is inevitable: Vavilov at para 142 .

Further: ...elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed. Vavilov at para 142 Analysis

[ 25 ] The Applicant frames the overall issue as whether the decision of the Chief to dismiss his complaint was reasonable. He submits that the decision was unreasonable because the Chief failed to: (

a) account for relevant evidence; (

b) recognize that the Respondent failed in its duty to inquire into his mental health ; and (

c) recognize that the Respondent’s reason for terminating him was caused or contributed to by his PTSD . Although stated as separate grounds, all three of these issues are inter-related as they are fact-dependant and considerations related to one, relate to all three. A. Did the Chief fail to account for relevant evidence? [ 26 ] The Applicant submits there are several relevant and important pieces of evidence that the Chief either failed to consider or otherwise improperly discounted.

He says this evidence contradicts critical parts of the Respondent’s assertion that it was not aware of the Applicant’s PTSD at the time of the April 29, 2013 meeting, and should have required the matter to be sent to adjudication. The Respondent argues that it was not unreasonable for the Chief, in the face of the totality of the case before him, to determine that there was no reasonable basis in the evidence for proceeding to a hearing. [ 27 ] The disputed evidence relates to whether the Applicant told his supervisor, Mr. Chatwin, about his PTSD diagnosis prior to the April 29 th meeting.

The Applicant says that he did so, on two occasions, and on the first occasion there was a third-party present who confirms this happened. Mr. Chatwin says he was not told of the PTSD diagnosis. It is not disputed, however, that the Applicant was upset at the December 20 th , 2012 meeting, variably described by these three witnesses as distressed, crying, and extremely agitated. In addition, both parties agree there were discussions at that meeting about EFAP, with Mr.

Chatwin saying that he was the one who brought up the program with the Applicant. [ 28 ] The Applicant points out that the disputed evidence is central to the Respondent’s defence that it did not know of the PTSD diagnosis at the time it made the decision to terminate the Applicant shortly after the April 29 th meeting.

The Respondent submits that even if the Chief prefers the evidence of the Applicant on this point, it was still reasonable to conclude that there was no reasonable basis in the evidence for proceeding to a hearing, because there is no information on the record, or even from which an inference can be drawn, that it terminated the Applicant’s employment because of his disability.

Further, the Respondent says there is no information that supports the argument that the Applicant’s disability ought to have been considered prior to his employment being terminated. [ 29 ] It is difficult to see how this discrepancy in the evidence need not be resolved. The Respondent’s entire defence to the allegation of discrimination is that it did not know the Applicant was suffering from PTSD at the time of the April 29 th meeting, and therefore it could not have discriminated against him when it decided to terminate him as a result of his outburst in that meeting.

It must be remembered that the discussion at the April 29 th meeting that led to the Applicant’s outburst was not about some random unrelated subject, it was about the very topic for which the Applicant says he suffers PTSD. If the outburst resulted in the Applicant’s termination, and the outburst was due to a discussion about the Contractor, then it arguably follows that the outburst was related to the Applicant’s PTSD.

If the Respondent knew of the PTSD diagnosis, or had enough information that it should have inquired, then it arguably follows that the termination may have been discriminatory. [ 30 ] The discrepancy in the evidence is on a critical issue. The Chief did not directly address this discrepancy in his decision, but rather addressed discrepancies in general. The reasonableness of the Chief’s Decision is in jeopardy for this failure: Vavilov at para 126 .

The Chief stated: First, as the Court of Appeal held in Economic Development Edmonton v Wong , the fact that there are credibility issues, or matters in dispute does not alone warrant the referral of a complaint to a Tribunal for a full hearing. Chief’s Decision at para 26 [ 31 ] I agree with the Applicant that in the circumstances of this case, the Chief’s reliance on Wong is misguided. Wong stands for the proposition that it is only in narrow circumstances that the Chief can disregard conflicting evidence. It is for a human rights tribunal to decide material conflicts in the evidence. ...A broad, liberal

interpretation of the role of the chief commissioner means that the office holder would screen complaints in keeping with his gatekeeper function, mindful that a hearing panel is charged with the ability and, indeed, the responsibility to assess credibility and weigh the evidence.

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 . [ emphasis added ] Wong at para 20 [ 32 ] There is no doubt, as stated in Wong , that the Chief can assess the quality of the evidence gathered by the Investigator, but that does not mean he can discount material discrepancies that go to the heart of the discrimination allegation issue.

The Chief appears to have disregarded material evidence without anything in the record that points clearly to the veracity of one account of the facts as opposed to the other regarding what the Respondent knew of the Applicant’s mental health illness and when it knew it. The Applicant says he twice told Mr. Chatwin he was suffering from PTSD prior to the April 29 th meeting. He has a witness to one of those accounts, Mr. Armstrong. Mr. Chatwin denies that he was told of the Applicant’s medical condition, but that denial is not determinative.

The Chief was left with a credibility contest between two witnesses on a material point, something that can only be resolved by a hearing. The

conflict is significant, given the Respondent’s defence is predicated on being unaware of the Applicant’s PTSD. The Chief appears tohave focussed solely on when the Respondent received medical documentation, namely in June 2013, instead of focusing on when theApplicant claimed to have informed his employer of his PTSD. The latter issue is in dispute; it is a significant issue, and cannot beresolved without a hearing.

If the Respondent knew of Applicant’s PTSD, then the duty to accommodate arguably arose before itdecided to terminate him; and accordingly, it could not have simply decided to terminate him without seeking out medical informationabout his PTSD. [33] I find the Chief failed to account for relevant evidence and in doing so, made an unreasonable decision not to send this matterfor adjudication: Vavilov at para 126. B.

Did the Chief fail to recognize that the Respondent failed in its duty to inquireinto the Applicant’s mental health before terminating him for his conduct in the April29, 2013 meeting? [34] The Applicant argues that the Respondent had a duty to inquire into his mental health before disciplining him for his actions at the April 29th meeting. This duty arose, according to the Applicant, because the Respondent was aware before the April 29th meetingthat the Applicant had been exhibiting out of character behavior and had sought medical treatment.

In addition, by June 2013, theRespondent had medical documentation diagnosing him with PTSD, which raised a further duty to inquire.

The Respondent disputes thatthere is any evidence the Applicant was acting out of character or that the Respondent was aware that he had sought medical treatment.In addition, it argues that there was nothing in the medical documentation provided connecting the Applicant’s PTSD to his outburst at the April 29th meeting. [35] At the oral hearing of this matter, the Respondent raised a concern that the duty to inquire issue had not been raised in thecomplaint process below and asked the court not consider the ground. Leave was given for each party to provide further writtensubmissions on this issue.

Both parties now agree that the duty to inquire issue was raised in the Applicant’s complaint, however, theRespondent urges this court to find that the Applicant abandoned the issue when he did not raise it further in his responses to theInvestigator’s Report and the Director’s Decision. Further, the Respondent argues that it would be prejudiced if the issue is consideredon review because it has not had an opportunity to put evidence or submissions before the court. [36] The duty to inquire is not a new issue being raised on review.

It was raised by the Applicant in his initial complaint at a timewhen he was represented by counsel.

In his complaint, the Applicant alleged the Respondent failed to accommodate him by failing tolimit interactions between himself and the Contractor; by failing to seriously acknowledge and investigate the Applicant’saccommodation request, thereby failing entirely in its procedural duty to investigate the request for accommodation; and by failing tocommunicate properly with the Applicant after he commenced his medical leave by not reaching out to discuss accommodationrequirements and the Applicant’s return to employment status with accommodations: Record, Tab 3,

Schedule A to the Complaint ofPhilip Holmstrom, para 31(a), (

b) and (c). The Respondent was aware of the Applicant’s position with respect to the failure to inquirefrom the initial filing of the complaint. [37] The Respondent’s primary position is that there is an insufficient evidentiary basis in the Record for the court to make therequisite findings of fact to support the argument that the Chief ought to have considered the duty to inquire. And further, that it has hadno opportunity to provide evidence or submissions on this ground. I disagree. The Respondent knew of the basis for the complaint, hadthe opportunity to respond to the complaint, and did, in fact, respond.

The Record includes interviews with the Respondent’s witnesseson the issue of interactions between the Contractor and the Applicant, and what the Respondent knew about the Applicant’s concernsand at what point in time. This is the disputed evidence referred to in “Ground A” above. The Respondent also provided documentaryevidence on the issue of when it received medical documentation respecting the Applicant’s PTSD diagnosis, and what steps it took afterreceiving that medical documentation including its communications with the Applicant and the Applicant’s treating physician.

TheRespondent provided submissions on the issue in its initial response to the complaint and can make arguments now. The Applicant’sposition on this review is based on the Record. He is not referring to any evidence outside the Record. Much of the evidence he relies onis not even disputed, and I have already found that the evidence that is disputed, needs to be determined by an adjudication. [38] The Respondent also argues the Applicant abandoned the issue somewhere along the way because he did not re-raise it inresponse to the Investigator’s Report or the Director’s Decision.

At those points in time the Applicant was not represented by counsel.His response to the Investigator’s Report and the Director’s Decision appears to have been primarily directed to factual findings hedisagreed with, for example, when the Respondent made the decision to terminate his employment. I find the Applicant did not abandonthe issue of the duty to inquire simply because he did not re-argue it in his responses.

His initial complaint was clear that he was raising aduty to inquire and he never stated that he was abandoning it: Saskatchewan River Bungalows Ltd v Maritime Life Assurance Co, (SCC), [1994] 2 SCR 490 at paras 19-20 (WL); Telestat Canada v Juch-Tech Inc, 2012 ONSC 2785 at para 56. [39] The Respondent also argues that the Chief’s failure to consider the duty to inquire is not a basis for review. As the Applicantpoints out, the enabling statute is clear that in reviewing the record of the Director’s Decision, the Chief is determining whether thecomplaint should have been dismissed: s 26(3)(a)(

i) of the Act. The complaint included the duty to inquire. I agree with the Applicantthat if an issue that is central is raised in the complaint but not addressed by the Chief, it is a possible basis on which to find the Chief’sDecision is unreasonable. [40] I further agree with the Applicant that, given that the Chief’s focus is on the complaint and the evidence adduced in thecomplaint process, there is no merit to the objection about the Applicant raising this ground on review. The issue of a duty to inquire wasraised in the complaint and was therefore before the Chief.

His failure to consider it is a proper ground of judicial review. Even if I amincorrect, and the duty to inquire is a new issue on review, I would still exercise my discretion to hear it. It is an important issue that isinterrelated factually with the other issues already considered by the Chief, and there is a sufficient evidentiary record from which toconsider the issue. Despite the Respondent’s arguments to the contrary, I find that there is no prejudice suffered by the Respondent inhaving to deal with the issue on review.

[ 41 ] Turning to the merits of the Applicant’s argument on the failure to consider the duty to inquire. It is clear that the Chief did not consider whether there was a reasonable basis in the evidence to send the matter to a hearing on this issue. The Applicant argues that the record discloses that there had been no complaints about his work or behavior prior to the Contractor’s assault. After the assault, the Applicant’s behavior changed. In a meeting with Mr. Chatwin following the assault, both the Applicant and another employee, Mr. MacDonald, say that the Applicant was distressed and crying. Mr.

Chatwin describes the Applicant as extremely agitated. The Applicant’s behavior was sufficiently out of the ordinary that the EFAP was brought up at the meeting, and notably, Mr. Chatwin says he was the one who brought it up. Shortly after this meeting, on February 22, 2013, the Applicant took a two-week medical leave to deal with his mental health issues. The Respondent says it did not know the reason for the leave, but nevertheless, it knew it was for a medical reason.

What exactly the Respondent knew, and when, is a disputed issue, discussed in “Ground A” above, but the other facts here mentioned are not disputed at all. In addition to his pre-April 29 th behavior, the incident that led to the Applicant’s termination appears to have been out of character. Although there is disagreement as to what was actually said, one of the Respondent’s witnesses described the other people at the meeting as being flabbergasted by the Applicant’s comments.

The Respondent’s argument that there is no evidence that the Applicant’s behavior at this meeting was aberrant, appears contrary to its own witnesses’ evidence. [ 42 ] The Applicant points to three cases, similar in circumstance to his case, where a duty to inquire into a grievor’s mental health issue was found to result in discrimination: Lafreniere v Via Rail Canada Inc , 2019 CHRT 16 [ Lafreniere ] ; Krieger v Toronto Police Services Board , 2010 HRTO 1361 ; ATU, Local 583 v Calgary (City) , 2004 CarswellAlta 2142 (Alta Arbitration) .

He argues there was a similar duty in this case, where, although certain pieces of evidence are in dispute, the evidence not in dispute supports a duty to inquire. The Applicant’s case is strikingly similar to that of Lafreniere , which supports his position that there may have been a duty to inquire in this case. [ 43 ] I conclude that the Chief’s failure to consider the duty to inquire was unreasonable given that it was raised in the initial complaint. C.

Did the Chief fail to recognize that the Respondent’s reason for terminating the Applicant was caused or contributed to by his PTSD? [ 44 ] The Applicant argues that the Chief put too much weight on the timing of the decision to terminate him. The Respondent’s rationale as to why it could not have discriminated against the Applicant was that it had no idea he was suffering from PTSD when it made the decision to terminate his employment.

The Chief appears to have agreed with this reasoning, finding there was nothing that “provide[d] any support for the complainant’s assertion that the decision to terminate his employment was made after the employer received medical information about his disability sometime in June”: Chief’s Decision at para 3. [ 45 ] The duty to accommodate is ongoing. When an employer receives new information relating to an employee’s disability, the employer is required to reassess possible accommodation options and determine whether the employee’s needs can be met without causing the employer undue hardship.

Consequently, implementing a decision already made can be discriminatory. [ 46 ] The Respondent says it decided to terminate the Applicant shortly after his outburst at the April 29 th meeting and there was evidence before the Chief to support the timing of this decision. However, the Respondent did not actually terminate the Applicant until his return to work on August 1, 2013, more than a month after it admits it learned of his PTSD diagnosis. The Respondent was still the Applicant’s employer when it received the June 19 and July 22, 2013 doctor’s letters.

It, arguably, had a duty to consider the medical evidence in those letters when deciding whether or not to implement its prior decision to terminate the Applicant’s employment. Instead, the Respondent appears to have simply decided to implement the decision it had already made months earlier. [ 47 ] The Chief simply accepted the Respondent’s argument that the decision to terminate was made before the Respondent received the medical documentation in June 2013, and therefore could not be discriminatory. He then went no further.

I find that the Chief’s failure to account for the ongoing nature of the duty to accommodate in the circumstances of this case was unreasonable: Vavilov at para 126 . Conclusion and Appropriate Remedy [ 48 ] I have found that there is a conflict in the evidence on a material point, namely whether the Applicant informed the Respondent of his PTSD diagnosis in January and April 2013. Given that the Respondent’s defence rests on it not knowing of the Applicant’s diagnosis when it decided to terminate him, this was not a minor conflict that could be resolved by the Chief.

By failing to account for this relevant evidence, the Chief’s Decision was unreasonable. This conflict should have resulted in the matter being sent to a hearing. [ 49 ] I have also found that the issue of whether the Respondent had a duty to inquire was raised by the Applicant in his initial complaint but not dealt with by the Chief in his decision. The Chief’s failure to deal with this issue led to an unreasonable decision not to send the matter to a hearing as there was sufficient evidence on the Record to do so.

Further, the Chief failed to consider whether the Respondent met its duty to accommodate when he failed to consider whether the medical evidence received in June 2013 related to the reason he was terminated. [ 50 ] In Vavilov , the Supreme Court of Canada addressed the question of whether a court that quashes an unreasonable decision should exercise its discretion to remit the matter to the decision maker for reconsideration with the benefit of the court’s reasons. That is the usual course.

However, the court can decline to do so in limited circumstances, including when it is evident to the court that a particular outcome is inevitable and remitting the case would serve no purpose: Vavilov at para 142 . Given my decision on “Ground A” above, that there are conflicts in the evidence on a material point that cannot be resolved by the Chief, I find it would serve no useful purpose to remit this matter back to the Chief for further consideration.

While “Grounds ‘B’ and ‘C’” could be remitted to the Chief, they also rely in part on the disputed evidence, and therefore it makes no sense to do so, given that remission on “Ground A” serves no

purpose. Consequently, I quash the decision of the Chief and send the matter to a hearing. Heard on the 2 nd day of February, 2021. Further written submissions provided February 19 th and March 5 th , 2021. Dated at the City of Edmonton, Alberta this 20 th day of May, 2021 . M. Hayes-Richards J.C.Q.B.A. Appearances: A. Cembrowski for the Applicant Philip Holmstrom A. Simmonds for the Respondent Alberta Justice and Solicitor General M. L. Luhtanen for the Respondent the Office of the Chief of the Commission and Tribunals of the Alberta Human Rights Commission