X v Alberta Human Rights Commission, 2022 ABKB 659

Court of King’s Bench of Alberta Citation: X v Alberta Human Rights Commission, 2022 ABKB 659 Date: 20221004 Docket: 2001 01153 Registry: Calgary Between: X Applicant - and - Alberta Human Rights Commission and Mount Royal University Respondents _______________________________________________________ Reasons for Decision of the Honourable Justice Colin C.J.

Feasby _______________________________________________________ Introduction [ 1 ] This Application is for judicial review of a decision by the Chief Commissioner (the “Commissioner”) of the Alberta Human Rights Commission (“AHRC”) to dismiss a complaint without a hearing: X v Mount Royal University , 2019 AHRC 31 (the “Decision”).

The underlying complaint was that Mount Royal University (“MRU”) discriminated against a student because of her mental health disability without reasonable justification. [ 2 ] On May 30, 2013 MRU imposed a “Behavioural Contract” on the Applicant to address what it considered to be her excessive demands on instructors and administrators and to address disruptive behaviour related to her disability.

The Behavioural Contract restricted the amount of time she could spend with instructors during their office hours, limited the amount of time that she could have with counsellors, and imposed rules for her communications with various categories of people at MRU.

[ 3 ] The Applicant filed a complaint with the AHRC on August 8, 2013. [1] She asserted that the Behavioural Contract discriminated against her because of her disability. On May 28, 2018, the AHRC issued an investigation report recommending that the complaint be dismissed without a hearing on the basis that the Behavioural Contract was reasonable and justified in the circumstances. In early 2019, the Director issued a decision dismissing the complaint without a hearing. Later in 2019, the Commissioner issued the Decision dismissing the Applicant’s appeal of the Director’s decision.

The Applicant commenced this proceeding in early 2020 within the six-month time limit required by the Rules of Court for judicial review matters. The Applicant asks that the Decision be quashed and that the AHRC be directed to hold a hearing on the complaint. [ 4 ] Pre-hearing, the Applicant sought and obtained orders from Justice Millar and Applications Judge Farrington protecting the confidentiality of her health information. The orders stipulate that the style of cause is to identify the Applicant only as “X” and that the Court file is sealed.

These reasons accordingly refer to X as the “Applicant” throughout and only refer generally to “mental health conditions” rather than the specific medical diagnoses relevant to the Applicant. [ 5 ] The AHRC, in response to questions asked in oral argument, requested and was granted the opportunity to file supplemental written submissions on the question of standard of review and the role of the Commissioner. Those submissions were received on September 21, 2022. MRU submitted a letter on the same day adopting AHRC’s supplemental written submissions.

The Applicant delivered a brief responding to the AHRC supplemental written submissions on September 28, 2022. MRU Imposes the Behavioural Contract [ 6 ] The Applicant suffers from several mental health conditions. When she enrolled at MRU in 2010, she requested and was granted accommodations for her disability. Over the following three years, the Applicant proved herself to be a strong student, but she encountered difficulties interacting with faculty members and navigating the academic bureaucracy.

She placed greater demands on instructors and administrative staff than most students and sometimes engaged in disruptive behaviour. [ 7 ] On April 30, 2013, the Vice President Student Affairs and Campus Life (the “Vice President”) and the Applicant met to discuss concerns that had been raised by various faculty and staff members. On May 7, 2013, the Vice President emailed the Applicant a

summary of the meeting and advised that he would be sending her a behavioural contract. The Vice President wrote: I have learned that you have frequently accessed several services and met with a number of individuals on campus. This includes: Accessibility Services, Human Resources, Human Rights, Chairs of Sociology and English, the Dean of Arts, Security, the Registrar, Student Counselling, Health Services, and most recently my office. The frequency and range of contact with these offices over the same issues [h]as been disruptive at times and, therefore, is of concern to me.

To assist you in changing your behaviour, I have asked that your Student Counsellor, Jack Dobbs, the Chair of Sociology, Tom Buchanan and the Chair of English, David Hyttenrauch work together to develop a plan for your success. Your input will be considered in the development of this plan. I will approve the plan and require you to abide by it.

Mount Royal University is committed to students’ academic and personal success within an environment of respect and inclusion [emphasis added]. [ 8 ] Following the May 7, 2013 email, the Vice President consulted with various faculty members, administrators, and the Applicant’s counsellor to develop the Behavioural Contract.

The Commissioner observed at para 20 of the Decision that despite the promise in the May 7, 2013 email to consider the input of the Applicant in the development of a plan “[t]here does not appear to have been any contact with the complainant, or attempts to seek her input, prior to developing the behavioural contract.” [ 9 ] On May 30, 2013, the Vice President emailed the Applicant a letter dated May 27, 2013 and a Behavioural Contract. The letter read, in part, as follows: I am attaching a behavioural contract for your review and signature.

In keeping with my email of May 7, 2013 and my determination of findings, the following includes a list of behavioural expectations that you are to adhere to while completing your academic program. Situations arising that contravene the expectations included in this contract may result in the immediate loss of privilege to access services and will be filed with the Office of Student Conduct.

Inappropriate behaviour resulting in official sanctions could prohibit you from completing your studies at this institution. [ 10 ] The Behavioural Contract was broken into four parts: (1) contacts with teaching faculty; (2) contacts with MRU administrators; (3) contacts with MRU counselling department; and (4) contacts with other MRU departments. The thrust of each

section of the Behavioural Contract was to limit the Applicant’s use of MRU resources and to structure contacts between the Applicant and MRU personnel. [ 11 ] On June 28, 2013, the Applicant emailed the Vice President to explain that her doctor had recommended that she not meet with the Vice President until she had completed a psychiatric assessment. She also asked if she was required to sign the Behaviour Contract to take a Fall 2013 course that she had already registered and paid for.

The Vice President replied the following day confirming: “Yes, you will need to sign the behaviour contract by August 30 th in order to take any MRU course” [emphasis in original]. Law & Analysis Standard of Review [ 12 ] The Originating Application was filed on January 22, 2020.

The Originating Application states that the Applicant seeks judicial review and an order quashing the decision of the Commissioner. [ 13 ] The Applicant and the AHRC submitted that the present application is a judicial review and, pursuant to Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 44 , the appropriate standard of review is reasonableness. MRU, in its written materials, asserted that the matter was a statutory appeal pursuant to former s 37(1) of the Alberta Human Rights Act , RSA 2000, c A- 25.5 (“ HRA ”).

The statutory right of appeal was repealed in late 2021 and the transition provision ( HRA s. 45.1(2) ) provides that if an

appeal is commenced but not concluded prior to the amendment of the HRA removing the statutory right of appeal, then the appeal is to continue as if no amendment had been made. MRU submitted that because this matter is an appeal, pursuant to Vavilov , the appellate standard of review set out in Housen v Nikolaisen , 2002 SCC 33 applies.

At the commencement of the hearing, MRU reversed its position and conceded the Applicant and AHRC were correct that the proceeding is a judicial review and reasonableness is the appropriate standard of review. [ 14 ] Reasonableness is a deferential standard because it only requires the Court to ask whether the decision in question, including the reasoning process and outcome, is reasonable.

The decision does not have to be the correct decision in the eyes of the reviewing Court, it must only fall within a range of “possible, acceptable outcomes which are defensible in respect of the facts and the law”: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 . The majority in Vavilov explained at para 83 : the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome.

The role of courts in these circumstances is to review , and they are, at least as a general rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. [ 15 ] The oral submissions of MRU and AHRC emphasized the expertise of AHRC and its Commissioner in human rights and the gatekeeping function of the Commissioner under HRA s. 26 .

These things, it was submitted, require the Court to exercise a more deferential standard of review.

AHRC cited Mis v Alberta Human Rights Commission , 2001 ABCA 212 at para 9 for the proposition that the Commissioner should be “given wide latitude” in making his decision and that “courts are not to lightly interfere.” [ 16 ] The statements concerning deference in Mis are consistent with Wojtasiewicz v Alberta (Human Rights Commission), 2020 ABCA 23 at para 9 where the Court, citing Stewart v Elk Valley Coal Corp , 2017 SCC 30 at para 20 , observed that “human rights tribunals are owed substantial deference” (see also, Wang v Alberta (Human Rights Commission), 2021 ABQB 780 at para 7 ). [ 17 ] The comments in Mis and Stewart belong to a pre- Vavilov world where contextual analysis was undertaken to determine the appropriate standard of review.

Before Vavilov , factors such as expertise weighed in favour of selection of the more deferential standard of review, reasonableness. Post- Vavilov , reasonableness is the presumptive standard of review except in cases of statutory appeals and the other limited exceptions set out in Vavilov . [ 18 ] Reasonableness is a single standard: Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 at para 59 .

The majority in Vavilov reiterated this point saying that “reasonableness remains a single standard, and elements of a decision’s context do not modulate the standard or degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case” (para 89). [ 19 ] Once the standard of review is determined to be reasonableness, as it is in the present case, statements of deference add nothing to the analysis.

Assertions that human rights tribunals are entitled to substantial deference or that the Commissioner as a gatekeeper is entitled to wide latitude in decision-making are vestiges from the pre- Vavilov world. Human rights tribunals are not a special category of administrative decision-maker for which there is a different and more lenient standard of reasonableness. Deference is inherent in the reasonableness standard; there is no extra deference based on the nature of the decision-maker or type of decision in question.

This is evident in Canada (Attorney General) on behalf of the United States of America v Tyndall , 2021 ABCA 95 at para 57 where the Court stated that the Minister of Justice was entitled to “substantial deference” and then proceeded to apply the reasonableness standard as required by Vavilov . To the extent that Courts and counsel continue to talk of “substantial deference” or “wide latitude” all it means is that review is conducted using the reasonableness standard as set out in Vavilov .

Applied to the present case, Vavilov requires that the Commissioner make a reasonable decision; “wide latitude” or “substantial deference” does not permit the Commissioner to make an unreasonable decision. [ 20 ] Though not a justification for a more deferential brand of reasonableness, expertise and experience are relevant to assessing the reasonableness of an administrative decision.

The majority in Vavilov explained that “ demonstrated experience and expertise” [emphasis added] may justify to the reviewing Court why an “issue is treated in less detail” or why a “counterintuitive” outcome “nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision” (para 93). The institutional expertise, experience, or specialized knowledge is not assumed, it must be “demonstrated by their reasons” (para 93).

As will be evident from my review of the Commissioner’s reasons, there is no special experience or expertise demonstrated in the Decision. [ 21 ] The majority in Vavilov at para 125 explained that “absent exceptional circumstances, a reviewing court will not interfere with its factual findings.” The majority went on to explain that a “decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them” (para 126) [citations omitted]. [ 22 ] The Supreme Court of Canada considered the relevant question to be asked by a Court when judicially reviewing a decision of the Nova Scotia Human Rights Commission to refer a complaint to a board of inquiry in Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) , 2012 SCC 10 .

Cromwell J, writing for the Court, held at p ara 17 that the relevant question was: “is there a reasonable basis in law or on the evidence for the Commission’s conclusion that an inquiry is warranted?” The present case requires the Court to adapt Cromwell J’s question from Halifax to circumstances where the decision was to dismiss a complaint without a hearing rather than direct a complaint to a hearing. [ 23 ] A modified version of the question posed by Cromwell J in Halifax is appropriate in the present case given how the Alberta Court of Appeal in Economic Development Edmonton v Wong , 2005 ABCA 278 at para 16 explained the Commissioner’s role under HRA s. 26 : The chief commissioner fulfils a screening role.

He does not determine whether a complaint is made out. The chief commissioner is called upon to consider the evidence gathered by the investigator in the context of deciding whether there is a reasonable basis in the evidence for proceeding to the next stage. In my opinion, it follows that if the chief commissioner is to properly discharge his duty, he

must evaluate the quality of the evidence gathered by the investigator [emphasis added]. [24] The Court of Appeal in Alberta Union of Provincial Employees v Alberta, 2020 ABCA 284 at para 12, in part quotingVavilov at para 126, explained that “a marker of an unreasonable decision is one where the decision maker has ‘fundamentallymisapprehended or failed to account for the evidence before it.’” This is another way of asking Cromwell J’s question of whether thereis a reasonable basis on the evidence for the decision-maker’s conclusion. [25] The direction in Vavilov and repeated in AUPE is consistent with Paperny JA’s conclusion in Pridgen v University ofCalgary, 2012 ABCA 139 at para 59: [T]he relaxation of the rules of evidence does not relieve an administrative decision-maker of the responsibility to assess the quality ofthe evidence received in a reasonable manner in order to determine whether it can support the decision being made.

And in a subsequentjudicial review, the reviewing court must consider whether the decision is “one of a range of possible outcomes”, based on the evidencethat was received and assessed by the decision-maker.

It is not an error for a reviewing judge to consider the quality of the evidence andthe manner in which it was assessed in conducting that analysis [emphasis added]. [26] For a recent example of an HRA s. 26 decision that was overturned on the ground that it was unreasonable because theCommissioner misapprehended and failed to consider evidence available to him, see Guay v Alberta (Human Rights Commission),2022 ABQB 36 at para 73. Review of the Decision for Reasonableness

(1) Standard to be applied by the Commissioner Under HRA s. 26 [27] The standard to be applied by the Commissioner on a HRA s 26 review of a decision by the Director is set out at para 33 of theDecision. He explains “[t]he test that I must apply in carrying out my review function under

section 26 of the Act is whether there is areasonable basis in the evidence for proceeding to a hearing before a Tribunal.” He continued, observing “[t]he threshold is low....” [28] The standard set out by the Commissioner has its roots in Mis where the Court of Appeal held at para 8 that “[w]e aredisinclined to set the specific test as low as ‘arguable case’ or as high as ‘reasonable prospect of success’. In our view, the standard issomewhere in between.

The question the Director or Chief Commissioner must ask in deciding whether a complaint is without merit iswhether there is a reasonable basis in the evidence for proceeding to the next stage.” [29] The Legislature amended the HRA effective December 8, 2021 to allow the Director pursuant to HRA s. 21 and, by extensionthe Commissioner reviewing a decision of the Director pursuant to HRA s. 26, to dismiss a complaint because it “has no reasonableprospect of success”: HRA s. 21(1)(iii).

The reasonable prospect of success standard should be used instead of the reasonable basis in theevidence to proceed standard after December 8, 2021. [30] Since the Decision was made prior to December 8, 2021, the Commissioner applied the reasonable basis in the evidence toproceed standard set out in Mis.

(2) Appropriate Legal Framework for Analyzing Discrimination [31] There is nothing unreasonable about the Commissioner’s statement of the law. The Decision sets out the legal framework foranalyzing discrimination at paras 34-36. The Commissioner first asked whether on the evidence before him the Applicant hadestablished that the Behavioural Contract constituted prima facie discrimination. He identified the three-part test for determining primafacie discrimination in Moore v British Columbia (Education), 2012 SCC 61 explaining that “a complainant must show that

a) theyhave a characteristic protected by the Act,

b) they experience adverse treatment, and

c) the characteristic was a factor in the adversetreatment.” [32] The Commissioner observed at para 53 that “[i]t is clear that the respondent knew the [Applicant’s] behaviours were relatedto her mental disability....” The Commissioner found in para 34 that “the behavioural contract was issued because of the actions andbehaviours related to the complainant’s disability.” He concluded in para 34 that “it is certainly arguable that the behavioural contractconstituted ‘prima facie’ discrimination.” He went on to say in para 35, “I agree with the complainant that the contract imposesrestrictions on the use of services not required of students without disability.” A fair reading of the Decision is that the Commissionerconcluded that the Applicant had set out a cognizable claim of discrimination that is supported by enough evidence that a Tribunal couldreasonably conclude the claim to be proved. [33] The Commissioner was then required to evaluate the evidence supporting the defences to the claim.

He stated in para 36 thatthe inquiry must consider whether MRU was able to justify the discriminatory practice. He cited Moore again and identified two otherleading cases, British Columbia (Public Service Employee Relations Commission) v BCGSEU, (SCC), [1999] 3 SCR3 (“Meiorin”) and British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), (SCC), [1999] 3 S.C.R. 868 (“Grismer”). He explained that “a respondent may justify a discriminatory policy or rule if it candemonstrate:

a) the restriction is rationally connected to a legitimate business purpose,

b) that it was adopted in good faith, and

c) thepurpose could not otherwise be accomplished without incurring undue hardship.”

(3) Rational Connection to Legitimate Business Purpose [34] The question of rational connection asks whether the discriminatory restriction, in this case the Behavioural Contract,logically furthers a legitimate business purpose of the entity imposing the restriction. While evidence may be considered at this stage,the inquiry is mainly theoretical. For example, in Grismer at para 28 the Court decided the question of rational connection withoutevidence relying on “common sense and experience.” [35] The Decision addresses the issue of rational connection in paras 37-39. The Commissioner observed at para 37 that MRU

“had a legitimate interest in addressing both the level and nature of the complainant’s use of services.” He went on to observe that it was MRU’s “mandate and responsibility to institute measures that can properly meet the needs of all students.” [ 36 ] The Commissioner noted at para 38 that “there were a number of instances where the complainant’s behaviour was concerning, both objectively (the incidents in the Office of Student Conduct in April and at Wellness Services in May), and subjectively (making staff and faculty feel uncomfortable).” He concluded in para 39 that MRU “has a legitimate interest in ensuring respectful and non-disruptive conduct on campus....” [ 37 ] The Commissioner’s analysis and conclusion with respect to the rational connection between MRU’s concerns about the Applicant’s behaviour and demands on MRU services and the Behavioural Contract is reasonable.

The Applicant’s behavioural issues and demands on MRU services could adversely affect MRU’s ability to provide a suitable learning environment and services to other students. The Behavioural Contract addressed the Applicant’s behaviour and demands on MRU services.

(4) Good Faith [ 38 ] The Commissioner’s consideration of the second element of the Meiorin analysis, good faith, is dealt with in a single paragraph that is one sentence long: “Second, I do not see any basis to question the good faith of the respondent in developing the behavioural contract” (para 40). In the following sentence that started the next paragraph, the Commissioner changed gears and moved on to the question of undue hardship. A single conclusory sentence on the good faith requirement suggests that the Commissioner’s analysis is wanting.

Sparse reasons are problematic because they do not illuminate the decision-maker’s reasoning process: Cavendish Farms Corporation v Lethbridge (City) , 2022 ABCA 312 paras 24-25 . [ 39 ] The Commissioner’s analytical approach to good faith, to the extent that it can be discerned, is flawed because he reversed the burden of proof. The Commissioner’s statement that he “[did] not see any basis to question the good faith of the respondent in developing the behavioural contract” assumes MRU’s good faith and places a burden on the Applicant to prove the contrary.

Meiorin at para 54 is states that the discriminating entity has the burden of demonstrating that the discrimination is reasonable and justified including that it acted in good faith. The Applicant does not bear the burden of disproving MRU’s good faith. [ 40 ] Counsel for MRU submitted that other parts of the Decision touch on the issue of good faith and can be used to bolster the Commissioner’s naked conclusion. I agree that the Decision should be read holistically to determine if there is a rational chain of analysis: Vavilov at para 103 .

At para 42 of the Decision, the Commissioner observed that “[t]he information also indicates that the respondent developed the behavioural contract, respectful of the complainant as a person with a disability.” He went on to note that the Behavioural Contract was developed with the input of various MRU personnel including her counsellor.

The Commissioner later observed at para 46 that “[a]n alternative, and less formalistic perspective of this case, is to see the behavioural contract as part of the respondent’s on-going efforts to accommodate the complainant’s disability related needs.” Counsel for MRU submitted that MRU’s good faith is evident in its almost three years of accommodation of the complainant that culminated in the Behavioural Contract. [ 41 ] Prior good faith efforts to accommodate an individual’s disability, though part of the relevant context to be considered, do not mean that the discriminatory practice or restriction in issue was also adopted in good faith.

The question that the law requires to be considered is whether the discriminatory practice or restriction in issue – the Behavioural Contract – was created in good faith.

That is, it must be determined whether MRU subjectively believed that the Behavioural Contract was necessary to achieve a legitimate business purpose and that it was not adopted for the purpose of defeating rights: International Brotherhood of Electrical Workers, Local No. 1007 v Epcor Utilities Inc. , 2017 ABCA 314 at para 18 . [ 42 ] For the second step of the Meiorin analysis – good faith – to have any purpose, it cannot be satisfied simply because there is a rational connection between the disputed measure and a legitimate business purpose.

If that were the case, the first two steps of the Meiorin analysis would collapse into one. Similarly, naked s tatements that a policy or measure is adopted in good faith, with good intentions, or that it is respectful of a disabled person cannot be accepted without something more as evidence of good faith. A statement by the framer of a policy or measure that it was adopted in good faith may be self-serving and should be scrutinized.

The good faith requirement, if it is to mean anything, must demand that there be some objective evidence to support a claim that there was a subjective belief that a policy or measure was necessary to achieve a legitimate business purpose and that it was not adopted for the purpose of defeating rights. Often, the place to look for this type of evidence is in the process that led to the adoption of the disputed policy or measure.

In the present case, this requires consideration of the legal context and factual circumstances surrounding the development of the Behavioural Contract. [ 43 ] The Commissioner observed at para 53 that “MRU decided not to proceed through the Office of Student Conduct, which is the disciplinary route. [The Vice President] stated that the information he received was that the complainant’s behaviour, though concerning, was not considered a safety or security risk.” He went on to conclude that MRU “knew that the behaviours were related to her mental disability, and therefore did not want to engage the disciplinary process if that could be avoided.” [ 44 ] Despite the Vice President’s wish to avoid the disciplinary process, the Behavioural Contract is disciplinary in nature: (

a) The Vice President conducted an investigation. (

b) The Vice President’s letter to the Applicant enclosing the Behavioural Contract referred to a “determination of findings.” (

c) The Behavioural Contract sets out limits on access to MRU services that do not apply to other MRU students. (

d) The Behavioural Contract states: “Situations arising that contravene the expectations included in this contract may result in the immediate loss of privilege to access services and will be filed with the Office of Student Conduct. Inappropriate behaviour resulting in official sanctions could prohibit you from completing your studies at this institution.” (

e) The Vice President advised the Applicant by email that she was required to sign the Behavioural Contract if she wished to register for classes in Fall 2013.

[ 45 ] At the outset of the hearing, I asked why the MRU Student Code of Conduct was not part of the record. Counsel for MRU explained that the MRU Student Code of Conduct was not part of the record because MRU viewed the Behavioural Contract as a matter of accommodation not a matter of student discipline. The record also did not include MRU’s policies on discrimination and accommodation nor, for that matter, did the record include any criteria that MRU may use to distinguish between matters of accommodation and discipline.

Simply put, there was nothing in the record to indicate whether the Vice President was following a considered MRU policy or making things up as he went along. [ 46 ] The Commissioner acted unreasonably in accepting, MRU’s characterization of the Behavioural Contract as a matter of accommodation, not discipline. According to the Vice President, the consequences of failing to sign the Behavioural Contract, was that the complainant would not be permitted to register for courses in Fall 2013. This is effectively a suspension of the complainant’s right to attend MRU.

Suspension of the right of a student to attend a university by reason of the student’s behaviour is a matter of discipline, not accommodation. The Post-Secondary Learning Act , SA 2003, c P-19.5 s 31 grants universities disciplinary jurisdiction over students and outlines penalties including suspension: 31(1) The general faculties council has general supervision of student affairs at a university and in particular, but without restricting the generality of the foregoing, the general faculties council may (

a) subject to a right of appeal to the board, discipline students attending the university, and the power to discipline includes the power (

i) to fine students, (ii) to suspend the right of students to attend the university or to participate in any student activities, or both , and (iii) to expel students from the university; (

b) delegate its power to discipline students in any particular case or generally to any person or body of persons, subject to any conditions with respect to the exercise of any delegated power that it considers proper; (

c) give to a student organization of the university the powers to govern the conduct of students it represents that the general faculties council considers proper.

(2) Any powers to govern the conduct of students given to a student organization pursuant to subsection (1)(

c) are subject to the overriding control of the board, the president and the general faculties council. [emphasis added] [ 47 ] There is no information in the record to indicate whether the MRU general faculties council delegated its power to discipline students to the Vice President and, if so, what conditions were made with respect to the exercise of such delegated power. Regardless of the question of delegation, had this matter been treated as one of student discipline, the Applicant would have had a right of appeal to the Board of Governors.

Instead, the matter was considered a matter of accommodation where the Vice President investigated, made findings, and imposed the Behavioural Contract without any guarantees of procedural fairness and no right of appeal. [ 48 ] The Commissioner concluded at para 42 that MRU “developed the behavioural contract, respectful of the complainant as a person with a disability.” This finding sits uneasily with the observation in the following paragraph that the Vice President did not seek input from the Applicant prior to issuing the Behavioural Contract.

The Commissioner noted at para 43 that “[t]his was unfortunate, particularly since [the Vice President] did say in his May 7, 2013 correspondence that the complainant would be able to provide input.” When this matter is properly understood as one of student discipline that could lead to sanctions including suspension of the right to attend the university or use certain university services, the failure to obtain input from the complainant is disrespectful of the complainant as a person with a disability, procedurally unfair, and indicative of a lack of good faith. [ 49 ] The Behavioural Contract is not a contract at all and for it to be branded as such is misleading.

It is a set of conditions unilaterally imposed by MRU on the Applicant backed by the explicit threat that if she does not accede to the conditions, she will no longer be able to attend MRU. At the time the Behavioural Contract was issued, the Applicant had already invested three years as a student at MRU and a failure to sign the Behavioural Contract threatened the completion of her studies. The Applicant was vulnerable because of her significant investment of effort and money during her time at MRU.

The threat that the Applicant would no longer be able to attend MRU and complete her degree if she did not sign the Behavioural Contract was an inappropriate use of leverage and power that is indicative of a lack of good faith. [ 50 ] The troubling implication from MRU’s handling of this matter is that there is a separate ad hoc system of student discipline for disabled students that operates under the guise of accommodation.

Disabled students, particularly students suffering from mental health conditions, that may be challenging or difficult for instructors and staff to deal with risk being subjected to what are, in essence, disciplinary sanctions without any of the procedural protections afforded in the usual student discipline process. [ 51 ] The Commissioner’s conclusion that MRU acted in good faith in imposing the Behavioural Contract on the Applicant is unreasonable.

MRU had two choices: (1) it could have worked collaboratively with the Applicant to develop a true plan for accommodating her disability; or (2) it could have addressed the Applicant’s behavioural issues through the usual student discipline process. MRU chose instead to impose a Behavioural Contract developed without the Applicant’s input which was a hybrid between an accommodation plan for her disability and disciplinary sanctions for her behaviour. MRU appears to have acted as it did out of frustration with the Applicant and not in good faith. The Commissioner’s finding of good faith was unreasonable.

(5) Undue Hardship [ 52 ] The analysis of the undue hardship criterion in the Decision begins at para 41 with the identification of the question. The

following paragraphs explain that the Behavioural Contract was respectful (para 42), that the Vice President did not seek input from theApplicant when developing the Behavioural Contract (para 43), and describe the Applicant’s position (para 44). Only at para 45 doesthe Commissioner address the issue of undue hardship saying that the Applicant’s “heavy use of student support services waschallenging for the respondent.

Of greater concern was the complainant’s repeated attempts to engage with administrative officers ... onmatters that had been previously addressed, or for which they had no authority.” [53] There can be no doubt that some MRU faculty and staff found the complainant demanding and difficult to deal with. Dealingwith challenging students is part of MRU’s daily business and does not constitute undue hardship save in exceptional circumstances. MRU, which bears the burden of demonstrating undue hardship, must show more than the student is demanding and difficult.

The unduehardship standard is described in Moore at para 62 as being “uncompromisingly stringent.” The Court explained that “the standard, if itis to be justified under human rights legislation, must accommodate factors relating to the unique capabilities and inherent worth anddignity of every individual, up to the point of undue hardship.” The Supreme Court in Central Alberta Dairy Pool v Alberta (HumanRights Commission), (SCC), [1990] 2 SCR 489 at 520-21 identified factors that may constitute undue hardship in thecontext of an employee-employer relationship including financial cost and problems of morale of other employees.

These factors areequally applicable in the context of a post-secondary educational institution. [54] MRU in its written submissions argued that: it was eminently reasonable for the Commissioner to infer that X’s use of resources would result in a significant financial burden onMRU, unless the Behavioural Contract was put in place.

It is reasonable to assume that given X’s use of services coupled with thenumerous indications from MRU staff and professors, in addition to MRU’s limited and/or finite resources, unless X’s demands werereduced or curtailed, MRU would either not be able to attend to the needs of its other students, or would have to incur a financial burdento ensure that those needs were met [emphasis added]. [55] As discussed above under the rubric of rational connection, MRU’s argument is perfectly valid in the abstract.

If there wasadequate supporting evidence, the rationale advanced by MRU would justify the limits put on the Applicant in the Behavioural Contract. But Grismer states at para 41 that “impressionistic evidence of increased expense will not generally suffice” to prove undue hardship.

Put differently, “[c]oncrete evidence is required to establish undue hardship”: Council of Canadians with Disabilities v VIA RailCanada Inc., 2007 SCC 15 at para 226. [56] There was no evidence before the Commissioner that quantified the financial impact of accommodating the Applicant or thefinancial impact of not imposing the Behavioural Contract. As MRU’s written submissions candidly recognize, the Commissionerinferred or assumed that the Applicant’s use of resources would result in a significant financial burden.

The quality of evidence requiredby Grismer and Council of Canadians to establish that a financial burden amounted to an undue hardship was not before theCommissioner. [57] The Commissioner’s inference or assumption of a significant financial burden on MRU is also contrary to the guidance thatthe AHRC provided in an Interpretive Bulletin titled “Duty to Accommodate Students with Disabilities in Post-Secondary Institutions”(September 2010).

The Interpretive Bulletin explained at page 7 that “[t]he financial cost of individual accommodation rarely reachesthe point of undue hardship.” The Commissioner acted unreasonably in making an inference or assumption of undue hardship to fill anevidential gap in circumstances where the AHRC’s own guidance indicates that undue hardship does not normally exist. [58] The financial burdens that the complainant allegedly put on MRU were quantifiable. Instructor time and counsellor time has afinancial value that can be measured.

MRU did not make any attempt to quantify the excess time instructors and counsellors took to dealwith the Applicant nor did MRU attempt to put a cost on that time to establish the financial burden of accommodating the Applicant. TheCommissioner acted unreasonably in inferring or assuming not only that a financial burden existed, but that it was so significant afinancial burden as to constitute an undue hardship. [59] The Decision does not analyze whether the non-financial burdens placed on MRU employees in having to deal with theApplicant’s demands for services or outbursts constitute an undue hardship.

The Decision at para 45 states: The record before me demonstrates an appropriate, reasonable and justified response given that the complainant had demonstrated apattern of concerning behaviour. Her heavy use of student support services was challenging for the respondent.

Of greater concern wasthe complainant’s repeated attempts to engage with administrative officers such as the Registrar, Human Resources and Student Conduct,on matters that had been previously addressed, or for which they had no authority. [60] The Applicant’s behaviour is described by the Commissioner as “concerning” and “challenging”, but that does not mean thatthere was undue hardship.

The Decision lacks any reasoning that explains why the Applicant’s challenging and concerning behaviourrose to the level of an undue hardship. [61] The most dramatic instance of disruptive behaviour noted by the Commissioner at para 18 involved the Applicant becomingupset in MRU’s Wellness Services office when she was told that her counsellor was not available. She threw herself on the counter andstaff were required to take her to an office to calm down.

This sort of behaviour is disruptive, but is managing such an outburst asufficient departure from the day-to-day responsibilities of the staff of Wellness Services that it constitutes an undue hardship for MRU? Wellness Services exists to provide support, including mental health support, to students. Dealing with emotional outbursts cannot beconsidered an undue hardship in an office whose purpose is, in part, to help students cope with mental health problems. It is part of thejob.

Of course, that is not true of instructors or other campus services, but there is a paucity of analysis in the Decision of the impact ofthe Applicant’s behaviour on instructors and administrative staff and what constitutes a sufficient intrusion into their daily routine toamount to an undue hardship.

(6) Did the Behavioural Contract Limit the Applicant’s Accommodation Needs? [62] Quite apart from the question of discrimination, the Commissioner considered whether the limits on access to MRU servicesin the Behavioural Contract limited the Applicant’s accommodation needs. The Commissioner concluded at para 51 that “while the

behavioural contract does establish criteria and limits on the use of services, there is no information that it restricts medically established accommodation needs.” [ 63 ] The Commissioner’s reasons at paras 48-50 show an appreciation for the evidence and support his conclusion: [48] ... First, the medical information recommends extra time for exams, and alternative modes of assessment, including dialogical or oral evaluations.

It does not specifically address the complainant’s need for extra, or a specified amount of office time with professors. [49] Second, the behavioural contract references the continued availability of accommodation needs as negotiated through the accessibility services office, and by agreement with individual professors. [50] Finally, the complainant does not indicate which, or how the limits imposed by the behavioural contract interfere with particular accommodation needs, much less medically supported accommodation needs.

She simply alleges she requires unfettered and unlimited access to professors’ time, based only on the general category of “need of dialogical learning.” [ 64 ] The problem with the Behavioural Contract’s “criteria and limits on the use of services” is that they are discriminatory because they apply to the Applicant by reason of her disability and not to other students and such discrimination is not reasonable or justified.

The Behavioural Contract’s “criteria and limits on the use of services,” however, do not prevent MRU from providing the level of service required to address the Applicant’s “medically established accommodation needs.” This aspect of the Decision is reasonable. Conclusion [ 65 ] The Decision is quashed and the matter is returned to the Commissioner for re-consideration with the benefit of the Court’s reasons. [ 66 ] Costs usually follow the result.

However, the Court of Appeal in LaTrace v Warkentin Building Movers Virden Inc, 2021 ABCA 377 at para 4 held that self-represented litigants are not normally entitled to costs because they have not incurred the expense of hiring a lawyer. The Applicant is accordingly not entitled to costs. I order, however, that MRU is liable to pay the Applicant’s reasonable disbursements which shall include Court filing fees incurred in this proceeding and printing and copying charges. To avoid further dispute, I fix the Applicant’s reasonable printing and copying fees at $250. Heard on the 16 th day of September, 2022.

Dated at the City of Calgary, Alberta this 4 th day of October, 2022. Colin CJ Feasby J.C.K.B.A. Appearances: X, Self-represented for the Applicant Melissa L Luhtanen, Alberta Human Rights Commission for the Respondent Alberta Human Rights Commission Steve T Eichler & Isabella Hernandez (Student-at-Law), Field Law LLP for the Respondent Mount Royal University