Wang v Alberta (Human Rights Commission), 2021 ABQB 780

Court of Queen’s Bench of Alberta Citation: Wang v Alberta (Human Rights Commission), 2021 ABQB 780 Date: 20210929 Docket: 2001 12472 Registry: Calgary Between: Shaoli Wang Applicant - and - Alberta Human Rights Commission and Alberta Energy Regulator Respondents _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice J.T.

Eamon _______________________________________________________ Introduction [ 1 ] Mr Wang applied for judicial review of the decision of a delegate of the Chief of the Commission and Tribunals (the “Commissioner”) upholding the Director’s decision to dismiss Mr Wang’s human rights complaint against Alberta Energy Regulator (“AER”). [ 2 ] Mr Wang was an employee of AER. His employer dismissed him without cause on September 7, 2016. His Record of Employment, issued by AER, stated he was terminated due to “job elimination”.

Mr Wang complained to the Commission that AER failed to reasonably accommodate his physical disability and that the real reason for his dismissal was his disability, therefore AER refused to employ him and discriminated against him contrary to s 7(1) of the Alberta Human Rights Act , RSA 2000, c A-25.5 (the “ Act ”).

[3] Mr Wang seeks to have the decision set aside and reconsidered because the Director and Commissioner: (

a) erred in concluding the AER’s attempts to accommodate his disabilities were reasonable. (

b) erred in concluding that Mr Wang was not terminated due to his disabilities. (

c) erred in concluding that Mr Wang did not provide other proof of a discriminatory connection between his termination and hisdisability. [Mr Wang’s written brief at para 3] [4] Mr Wang is a self represented litigant and did not frame his submissions in the context of the standards applicable to asummary complaint dismissal. The Director and Commissioner correctly described the test under Alberta law – whether there is areasonable basis in the evidence to proceed with the complaint. I have taken Mr Wang’s submissions as challenging the conclusion thatthere was no reasonable basis to proceed with the complaint.

Legislative and process framework [5] Any person who has reasonable grounds to believe that the Act has been contravened may make a complaint to theCommission (Act, s 20(1)). Where the Commission receives a complaint, the Director shall, as soon as is reasonably possible, attempt toeffect a settlement of the complaint by means of a conciliator or through the appointment of a person to investigate the complaint (Act, s21(1)). The investigator has a variety of powers under s 23 of the Act.

The Director may at any time dismiss a complaint if the Directorconsiders that the complaint is without merit (Act, s 22(1)(a)), including after receipt of an investigation report as in the present case.Where the Director dismisses a complaint, the complainant may request a review of the decision by the Chief of the Commission andTribunals (Act, s 26(1)).

Upon receiving a request for review, the Chief of the Commission and Tribunals, or his or her delegate, mustreview the record of the Director’s decision and decide whether the complaint should have been dismissed (Act, ss 26(3) and 26(4)). [6] The Director and Chief of the Commission and Tribunals play a gatekeeping role under these provisions. In Mis v AlbertaHuman Rights Commission, 2001 ABCA 212 the Court described this role: [7] In Grover v. Alberta Human Rights Commission, [1999] ABCA 240, this Court applied the Supreme Court of Canada’sinterpretation of the gatekeeper’s role in Cooper v.

Canadian Human Rights Commission, (SCC), [1996] 3 S.C.R.854 at 891 and Syndicat des employés de production du Québec et de l’Acadia v. Canada (Canadian Human RightsCommission), (SCC), [1989] 2 S.C.R. 879 (“S.E.P.Q.A.”) to the role carried out by the Director in s. 20(1)(

a) and, inreview, by the Chief Commissioner in s. 22(3)(a)(i). [8] The Supreme Court of Canada’s characterization of the gatekeeping function in S.E.P.Q.A., supra, and Cooper, supra,govern the function under the Alberta Act. The determination whether a complaint should be dismissed as “without merit” is a screeningor gatekeeping function performed as a paper review. We are disinclined to set the specific test as low as ‘arguable case’ or as high as‘reasonable prospect of success’. In our view, the standard is somewhere in between.

The question the Director or Chief Commissionermust ask in deciding whether a complaint is without merit is whether there is a reasonable basis in the evidence for proceeding to thenext stage. [9] The gatekeeper can be expected to apply his or her experience and common sense in evaluating the information in theinvestigator’s report. The threshold assessment of merit is low and the gatekeeper (here, the Chief Commissioner) is given wide latitudein performing the screening function. The courts are not to lightly interfere.

Standard of review [7] All parties agree that the standard of review is reasonableness, under the framework in Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65. See for example, Wojtasiewicz v Alberta (Human Rights Commission), 2020 ABCA 23 at para9. Human rights tribunals are owed substantial deference (Stewart v Elk Valley Coal Corp, 2017 SCC 30 at para 20), and thisproposition was applied in judicial review of a complaint dismissal in Wojtasiewicz and in Mis at para 9.

Facts [8] Mr Wang filed his complaint on October 16, 2016, alleging discrimination by his employer on the basis of physicaldisability over the spring and summer of 2016. [9] Mr Wang worked as a geologist at AER. He was assigned to a project group. He was the only geologist in this project group. [10] Mr Wang recounted that he suffered from a physical disability, and required a hard wooden chair without wheels to alleviatehis hip and leg pain. He wanted to bring such a chair from home. In June 2016, he completed an assessment form for AER’soccupational health nurse (“OHN”).

The OHN then arranged him an ergonomic chair from an office supply company. Mr Wang foundhe could not sit in the chair and renewed his request. The OHN offered another option to work standing up. Mr Wang stated he could nottolerate a stand up work style. His requests to bring a chair from home or for AER to provide a similar chair, were refused. Around thesame time, AER allowed Mr Wang to work from home one day per week to help alleviate his discomfort. Mr Wang’s representation tothe AHRC that he was allowed to work from home so that he could use his wooden chair, was uncontradicted in the record.

[11] In the meantime, Mr Wang had been using a small filing cabinet in his office as his chair. This cabinet had a cushion on topand was intended for short term use by visitors to the office space. In June 2016, the OHN issued a report wherein, among other things,she recommended against Mr Wang using this piece of furniture as his office chair. [12] Sometime prior to September 6, 2016 AER decided to move Mr Wang to a different physical work space. (No one suggeststhe move was part of any disability accommodation or an alleged scheme to terminate Mr Wang).

On September 6, 2016, before themove, he met with AER’s office move captain and asked to take the filing cabinet/stool to his new space because it did not have a similarcabinet that he could use to alleviate his chronic hip and leg pain. She denied his request, citing AER’s one key policy (the furniture ineach work space is keyed alike, and needs to be kept together so the same key can be used for all the furniture) and said “they will workon it next Monday”. [13] But Mr Wang was not employed at AER next Monday.

On September 7, 2016 AER terminated his employment and offeredhim a severance package. [14] Later, on September 19, 2016, Mr Wang learned from a former colleague in his project group that another geologist (“H”) hadreplaced him in the group. The next day, he received an email from that colleague that stated, among other things “[H] is now part of ourgroup, I’m not sure what she will be doing. Michael hasn’t had a meeting with us yet maybe he will tells [sic] us on Thursday what all ofus will be doing.” [15] Mr Wang also described being late to a meeting with AER senior executives in April 2016.

He apologized to them but felt hisapology was not accepted and they did not care about his disability. He seems to suggest in his complaint that this is additional evidencethat his termination was due to his disability. [16] AER’s response to the complaint included that the OHN had Mr Wang complete an ergonomic assessment and proceeded toreasonably accommodate his disability. AER noted that Mr Wang’s health care providers identified posture issues, and had not providedrecommendations for accommodations or any specific type of accommodation.

Also, AER stated the office move captain told Mr Wangthat he could apply for a similar cabinet after the move to his new work space. [17] As to termination, AER claimed that Mr Wang was terminated because of an internal reorganization, and was one of 8employees in the branch who were terminated the same day. There was no more work for him after the AER implemented newtechnologies and ways of carrying out its work. He was not replaced.

Another geologist filled in on his team during transition to the newtechnology. [18] An investigator was assigned to the matter and reported to the Director that there was not a reasonable basis to proceed withthe complaint. She observed: (

d) AER was obliged to reasonably accommodate an employee with a disability, up to the point of undue hardship.Accommodation has to be reasonable; it does not have to be perfect or the employee’s preferred accommodation. (

e) Mr Wang had a physical disability. The information provided did not support that Mr Wang received any negative treatmentfor arriving late at the April 2016 meeting due to his disability. (

f) The information provided that AER reasonably accommodated his physical disability by providing an ergonomic assessmentand new equipment, and allowing him to work from home one day per week. There was no formal medical recommendation that MrWang required the type of chair he wanted. (

g) The information provided did not support a link between his disability and his termination. Several other employees in hisunit were terminated at the same time, because their work had become automated. His disability did not entitle him to job protection overother employees. (

h) Therefore, there was no reasonable basis to proceed with the complaint. [19] The Director dismissed the complaint by letter dated July 14, 2020. [20] With respect to alleged failures to accommodate and termination linked to his disability, the Director stated: 6. The information gathered in the investigation supports that you had a physical disability relating to neck and back pain[1]. Theinformation also supports that AER reasonably accommodated the disability by providing an ergonomic assessment and new equipment,and allowing you to telework once per week. 7.

The information provided does not support there was any link between your disability and your termination. While you may disagreewith the employer’s actions, there is no evidence of a connection to a protected ground under the Act. On this basis, I see no reasonablebasis for this matter to proceed to the next step in the complaint process. [21] Mr Wang applied for review by the Chief of the Commission and Tribunals under s 25 of the Act.

The Commissioner upheldthe Director’s decision (Wang v Alberta Energy Regulator, 2020 AHRC 71 ). [22] In addressing Mr Wang’s complaint that his physical disability was not reasonably accommodated, the Commissioner stated: [32] Because of his disability and request for accommodation, the complainant received an ergonomic assessment, alternative officeequipment and a modified work arrangement with partial telecommuting.

This information suggests that the complainant’s concernswere taken seriously and the respondent attempted to accommodate the complainant’s disability. [33] The complainant submitted that he should have been allowed to provide his own wooden chair from his home. The complainant has

a duty to accept reasonable accommodation even if it was not preferred accommodation.

The accommodation attempts by the respondent were reasonable and in process at the time of the complainant’s termination, as the respondent had acknowledged the complainant could request a rolling filing cabinet for his new office space. [Underlining added] [ 23 ] In addressing Mr Wang’s complaint that he was terminated due to his disability, the Commissioner stated: [34] The Investigator and Director considered whether there was a link between the disability and the termination of the complainant and noted that the termination of the complainant occurred along with the termination of seven other individuals.

The respondent submitted email communications and a letter of termination supporting their position that the decision to terminate the complainant was part of a reorganization based on employer needs.

Although the timing of the termination occurred on the same date as the complainant was supposed to submit a request for a rolling filing cabinet for his new office space, the information supports no connection between the complainant’s preferred furniture and the decision to terminate his employment. [35] Taking into consideration the termination of the other employees at the same time as the complainant, and that the complainant has provided no other proof of a discriminatory connection between the termination and his disability, I find there is not a reasonable basis to proceed with the complaint.

The information provided does not provide a sufficient link between the termination and the complainant’s physical disability, for which he had received several workplace accommodations, to warrant a full hearing on the merits. Whether decision unreasonable (

a) Legal principles [ 24 ] A reviewing Court must consider both whether the decision is internally coherent and justified in light of the legal and factual constraints that bear on the decision. In Vavilov , the Court observed: [99] A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable.

To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir , at paras. 47 and 74 ; Catalyst , at para. 13. [100] The burden is on the party challenging the decision to show that it is unreasonable.

Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep.

Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable. [101] What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.

There is however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. [ 25 ] The reviewing Court must consider the tribunal’s formal reasons in light of the record and with due sensitivity to the administrative regime in which they were given. However, there are limits to this deference.

Vavilov states: [103] While, as we indicated earlier (at paras. 89-96), formal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis...

A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken ... or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point... [Citations deleted]. [ 26 ] As to relevant factual and legal constraints in which the decision must be assessed, the Court in Vavilov stated: [106] It is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case.

However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely the governing statutory scheme; other relevant statutory or common law; the principles of statutory

interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context.

They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached. [ 27 ] I will describe some of the constraints that appear to me as particularly material in Mr Wang’s case. [ 28 ] As to facts and evidence, “absent exceptional circumstances, a reviewing court will not interfere with its factual findings” ( Vavilov at para 125 ) and the reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker” ( ibid ).

The reasonableness of a decision may be jeopardized “where the decision maker has fundamentally misapprehended or

failed to account for the evidence before it” ( ibid at para 104). [ 29 ] The Court must also consider the parties’ submissions to the tribunal. Courts do not expect tribunals to respond to every argument, but “a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it” ( Vavilov at para 128 ). (

b) Does the Commissioner’s decision meet the standard? [ 30 ] The Commissioner concluded that AER’s accommodations were in process when Mr Wang was terminated, because AER would allow him to request a filing cabinet for use as a chair after his work space move (para 22 above). [ 31 ] The Commissioner’s conclusion on this point is perplexing when viewed in the context of the certified record. The record does not suggest that the OHN was continuing to search for accommodations for Mr Wang by early September 2016.

The investigation materials that the Commissioner reviewed indicated that AER’s OHN had recommended against using the “courtesy stool as a chair at the computer station” (Certified Record, p 371). AER’s response to the AHRC of December 4, 2019 (Certified Record, tab 10) makes clear that the stool is in fact the filing cabinet.

Consequently, the solution that the Commissioner found to be ongoing reasonable accommodation, was one that AER’s OHN had recommended against. [ 32 ] Further, none of the OHN, the AER and the Commissioner explained why Mr Wang could not have a chair for use in his office similar to what he had used at home. Early in the process, Mr Wang stated in an assessment form that he completed for the OHN that he preferred a hard surface to sit on. The OHN obtained an ergonomic chair for Mr Wang but he told her he could not sit in it.

Mr Wang said that a hard surface chair relieved his pain yet he was repeatedly refused this solution in the office. [ 33 ] AER’s materials did not suggest any reason why AER denied Mr Wang the use of a chair similar to what he used at home. AER said it could not disclose information from the OHN due to confidentiality issues. [ 34 ] The record indicates Mr Wang did not provide a medical assessment that a hard surface chair was appropriate for him (Commissioner’s Reasons at para 9). However, providing a hard seating surface seemed to be an inexpensive solution that was working for Mr Wang at home.

AER even gave him permission to work from home one day a week so that he could use his wooden chair at home. [ 35 ] This aspect of the Commissioner’s reasons does not bear scrutiny on the reasonableness standard. The investigator’s report and Commissioner’s reasons do not address why providing such a seating surface was outside the bounds of reasonableness. Instead, the Commissioner accepted, without medical evidence, that allowing Mr Wang to request a filing cabinet for use as his office chair was reasonable accommodation.

The Commissioner did not explain why that accommodation was reasonable when it had been earlier rejected by the OHN. [ 36 ] I turn to the Commissioner’s conclusion that the “the information supports no connection between the complainant’s preferred furniture and the decision to terminate his employment”. [ 37 ] Mr Wang was the only geologist among the AER employees terminated on September 7, 2016. The question from Mr Wang was: why he was chosen for termination due to job elimination when his position was immediately filled by H?

The absence of a good explanation could indicate the termination was for a prohibited reason. [ 38 ] AER denied any discrimination. It provided an internal communication from an AER Vice President describing how AER had changed its regulatory model and priorities and how this impacted the staff. It included: ... As a result, we have been stopping such work and internally redeploying staff to new areas of focus.

Regretfully however, eight individuals had to be informed that their work has been eliminated and they were released from the AER this morning. [ 39 ] AER represented to the Commission: Mr Wang was terminated because there was no more work for him for which he was deemed competent or qualified after the technology switch. There was a short transition time during which some classically oriented geologists stayed in place to do the dying workflows, but as time moved on they either found other work in the organization or left of their own accord.

There was some work requiring geographic focus on “top plays”, but this did not last long: that work was basically eliminated by the Subsurface Orders except for ongoing work in support of regulatory modernization. The last residual project was the Cumulative Effects Management (CEM) project and it was done by hydrologists and hydrogeologists (which Shaoli Wang was not). [ 40 ] Mr Wang’s point was that his work was not eliminated; in reality AER filled his job using another employee for a period of transition time.

The email from his colleague on the project team (para 14 above) strongly suggests Mr Wang’s work was ongoing, though we do not have evidence of how much work was left for him. [ 41 ] There was no direct evidence to suggest that Mr Wang’s disability was a factor in his termination. In order to draw an inference, one would likely need significantly more evidence of AER’s structure and H’s role within that structure. There was no evidence whether other geologists were in the same situation as Mr Wang yet not selected for termination.

There was no evidence of H’s role in AER except that H was assigned to the project group after Mr Wang was let go. There is no evidence whether H was solely assigned to that group or was providing transition services across a number of groups and not replacing Mr Wang on a full time basis. There was no evidence whether Mr Wang’s ongoing work was enough to occupy a full time employee.

[ 42 ] Perhaps Mr Wang could not develop all that evidence. Does he need to? Many discriminatory practices can only be detected by inference or careful investigation of surrounding circumstances. AHRC provides investigators to fulfil this need. Their duty under AHRC’s bylaws at the material time, was “to establish the facts and make recommendations to the regional director as to whether or not there is a reasonable basis to proceed with the complaint” [2] . Is the legislative intention met where AHRC’s investigator simply accepted the word of AER’s corporate representative without posing Mr Wang’s issue?

AHRC could have developed a more thorough record, could have asked more searching questions, but for whatever reason did not do so. [ 43 ] A complainant may impugn a clearly deficient investigation ( Chartrand v Alberta (Human Rights and Citizenship Commission) , 2008 ABQB 207 at para 14 ; Al-Ghamdi v Peace Country Health Region , 2015 ABQB 155 at paras 66 , 70)). [ 44 ] Mr Wang did not argue his case on that basis.

I therefore do not decide the case on that basis. [ 45 ] Nevertheless, the Commissioner did not explicitly address Mr Wang’s key allegation that he was simply replaced by another geologist of the same qualification for no good reason. Further, this issue is related to the discrimination issue. If the Commissioner had concluded there was a basis to proceed with the complaint that Mr Wang’s physical disability was not adequately accommodated, she may have come to a different conclusion on this second issue. [ 46 ] This aspect of reasons does not bear scrutiny on the reasonableness standard.

Conclusion [ 47 ] The conclusions that there was no reasonable basis to proceed with the complaint that Mr Wang’s disability was not reasonably accommodated and that Mr Wang’s termination was unlawful under s 7 of the Act are set aside and remitted for redetermination. [ 48 ] Mr Wang requested costs. There is no basis to award costs against the tribunal. As to his costs claim against AER, he may submit his arguments in writing, with a copy to counsel for AER and the AHRC, within 30 days of this decision. AER may respond within 30 days. Heard on the 09 th day of June, 2021.

Dated at the City of Calgary, Alberta this 29 th day of September, 2021. J.T. Eamon J.C.Q.B.A. Appearances: Shaoli Wang, self-represented for the Applicant Candice Ross for the AER Melissa Luhtanen for the Chief Commissioner, Alberta Human Rights Commission (limited submissions)