Tartal v Alberta (Human Rights Commission), 2023 ABKB 381

Court of King’s Bench of Alberta Citation: Tartal v Alberta (Human Rights Commission), 2023 ABKB 381 Date: 20230626 Docket: 2303 04841 Registry: Edmonton Between: Dana Tartal Applicant - and - Alberta Human Rights Commission Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice Kevin Feth _______________________________________________________ Overview [ 1 ] Dana Tartal filed an Originating Application for Judicial Review seeking to set aside a decision by the Alberta Human Rights Commission dismissing her human rights complaint against the Whitecourt Minor Hockey Association.

The Originating Application was filed six months and two days after the date of the decision and was served only on the Commission.

The Hockey Association was never named as a respondent nor served. [ 2 ] Rule 3.15(2) of the Alberta Rules of Court , Alta Reg 124/2010 requires that an Originating Application for Judicial Review seeking to set aside a decision must be filed and served within six months of the date of that decision, and Rule 3.15(3) requires that the Originating Application must be served on the decision-maker and “every person or body directly affected by the application.” [ 3 ] The Commission applies to strike the Originating Application because it was filed more than six months after the date the decision was made, and because it was not served on both the Commission and the Hockey Association within that limitation period.

The Commission submits that the Hockey Association is directly affected by the judicial review application. [ 4 ] The Originating Application was delivered to the Court by email within the six-month time limit, but the Court did not

acknowledge receipt until three days later when the Originating Application was formally marked as “filed.” Ms. Tartal contends the delay is a curable irregularity. She cross-applies for an Order directing that the filing date be backdated to the day of receipt. [ 5 ] As for service, the Commission was provided with an unfiled version of the Originating Application within the time limit and then given a filed version shortly after the limitation period expired. Ms. Tartal argues that the combination of the unfiled and filed versions satisfies the service requirement under Rule 3.15(3).

She cross-applies to cure the irregular service. [ 6 ] Finally, Ms. Tartal asserts that the Hockey Association is not directly affected by the judicial review proceeding and service on that body is therefore not required. She concedes that the Originating Application was not served on the Hockey Association within the limitation period. [ 7 ] I conclude that the Originating Application must be struck. It was neither filed nor served on the Commission within the limitation period. The failure to serve a filed version of the Originating Application within the time limit cannot be cured.

Moreover, the Hockey Association was directly affected and should have been served within the time limit but was not. The absence of that service also cannot be cured. These failures are fatal to the judicial review proceeding. Given these conclusions, determining whether the late filing can be repaired is unnecessary. Issues [ 8 ] The striking application raises the following issues:

a) What was the deadline for filing and serving the Originating Application for Judicial Review?

b) Was the Commission served with the Originating Application within the time limit? If not, can the failure to serve within the time limit be cured?

c) Was the Hockey Association “directly affected” by the decision such that service was required? If so, can the failure to serve be cured? Background [ 9 ] Ms. Tartal submitted a complaint to the Commission alleging discrimination by the Hockey Association based on a physical disability. The Hockey Association operates a minor hockey program in Whitecourt, Alberta. Ms.

Tartal’s son was a player in the program and she routinely accompanied her son to the practices and the games. [ 10 ] In November 2020, in response to the COVID-19 pandemic, the Hockey Association announced that all spectators, while attending games and practices, would be required to wear masks. The announcement clarified that accommodations would be considered for spectators who were medically exempt. [ 11 ] Ms. Tartal informed the Hockey Association that “the Tartal family has mask exemptions.” The Hockey Association responded that entry to the hockey arena would be allowed once Ms.

Tartal provided an exemption form completed by her family doctor. [ 12 ] Ms. Tartal initially declined to provide an exemption form or medical note, citing privacy interests. She asked to be accommodated by maintaining social distancing within the facility and wearing a badge informing other spectators that she and her family members were mask exempt and that other spectators were to keep their distance. [ 13 ] Through an exchange of emails over a few hours, the Hockey Association told Ms. Tartal that social distancing was insufficient and that she would need to wear a mask or face shield.

The hockey program was on the verge of being shutdown by Alberta Health Services because of growing COVID-19 case numbers. Possible accommodations were discussed but no resolution was found. The next day, the hockey program was suspended in response to further public health restrictions. [ 14 ] Ms. Tartal filed a human rights complaint with the Commission. The Hockey Association responded in writing. A Human Rights Officer reviewed the complaint, the response, and the submissions from Ms. Tartal and the Hockey Association.

The Officer prepared a memo recommending dismissal of the complaint. [ 15 ] The Director of the Commission reviewed the Officer’s memo and a reply from Ms. Tartal following which the Director dismissed the complaint for having no merit. [ 16 ] Ms. Tartal filed a Request for Review of the Director’s decision. The review was conducted under s 26(3) of the Alberta Human Rights Act , RSA 2000, c A-25.5 , which authorizes the Chief of the Commission and Tribunals (or designate) to review the record of the Director’s decision and to decide whether the complaint should have been dismissed.

The Hockey Association did not reply to the Request for Review. [ 17 ] On September 15, 2022, a member of the Alberta Human Rights Tribunal, as designate for the Chief, made the decision to uphold the Director’s decision to dismiss the complaint. [ 18 ] On March 14, 2023, Ms. Tartal’s lawyer (not the lawyer appearing before me) sent an unfiled version of the Originating Application to this Court by email for filing. The body of the email stated in relevant part: “I request the attached be filed.

I note the filing deadline is tomorrow, March 15, 2023.” [ 19 ] The lawyer was unaware of this Court’s October 19, 2022 “Announcement from Court and Justice Services: Filing Dates for

Documents Filed Via Email”, which states in part: Commencing November 1, 2022, Documents filed via email will be considered filed on the date that they are processed and stamped by King’s Bench Administration. When King’s Bench Administration started accepting email filing, it was determined that documents should be considered filed on either the day submitted, or if submitted after business hours, on the next business day. This was in recognition of some significant change in process undertaken due to the COVID-19 pandemic, as well as the filing lead times that existed across the province.

Now that filing lead times have been significantly reduced, and in order to maintain consistency with the Filing Digital Service, the process of backdating will stop November 1, 2022. Anything received via email November 1 st , 2022 or later, will not be backdated. ...

After November 1 st , 2022 documents will be considered filed on the date processed and stamped by King’s Bench Administration. [ 20 ] The Announcement also expressly addressed urgent filings for documents exposed to time limits: If your limitation period or Court ordered or statutory deadline is within 3 days or within the current lead time, whichever is longer, please indicate Urgent Limitation Period in the subject line ... [ 21 ] The lawyer’s email did not contain the reference “Urgent Limitation Period” in the subject line. [ 22 ] On March 15, 2023, the Commission received an unfiled version of the Originating Application by email.

The body of the email stated in part: Please find the unfiled Originating Application submitted for filing yesterday, March 14, 2023 at the Court of King’s Bench in Edmonton naming the Alberta Human Rights Commission as the Respondent. [ 23 ] On March 17, 2023, the filed Originating Application was served on the Commission. [ 24 ] The Hockey Association, not having been named as a respondent in the Originating Application, did not participate in the hearing before me. Preliminary matter [ 25 ] This application came before me in morning chambers.

Neither party filed a notice of application as contemplated by Rule 6.3. Instead, each party filed a chambers brief outlining their application and arguments. I subsequently clarified with counsel that the Commission is seeking to strike the Originating Application pursuant to Rule 3.68 and that Ms.

Tartal is cross-applying to cure any procedural defects pursuant to Rule 1.5. [ 26 ] Both parties waived any formal notice of the other’s application. [ 27 ] I gave the parties an additional opportunity to seek clarity about the opposing application, provide further written submissions, or to request an opportunity for further oral submissions. Both parties were content to proceed on that basis. [ 28 ] Filing a formal notice of application is the preferred practice.

The notice spells out the nature of the application, the grounds, the material or evidence to be relied on, any relevant enactment or rule, any irregularity complained of or objection relied on, and the remedy sought: Rule 6.3(2). That clarity avoids the additional steps made necessary here. [ 29 ] Nevertheless, as the particulars of the application and the cross-application have now been provided and the parties have been fully heard, I have invoked my discretion under Rule 6.3(2) to proceed without formal notices.

Striking an Originating Application [ 30 ] The Alberta Court of Appeal recently confirmed that an Originating Application for Judicial Review may be struck when the 6-month time limit for filing and serving the Originating Application is not satisfied: Julien v Alberta (Appeals Commission for Alberta Workers' Compensation) , 2023 ABCA 81 at para 16 . [ 31 ] Alternatively, the failure to comply with the limitation period in Rule 3.15(2) can invite

summary dismissal under Rule 7.3(1) (b): Neilson v Leduc (County) , 2021 ABQB 735 at paras 22-23 ; Boll v Woodlands County , 2021 ABQB 406 at para 73 ; ENMAX Corporation v Alberta (Labour Relations Board) , 2018 ABQB 431 at para 30 ; Athabasca Chipewyan First Nation v Alberta (Minister of Energy) , 2009 ABQB 576 , affirmed 2011 ABCA 29 [ Athabasca CA ] at para 25 , leave to appeal dismissed [2011] SCCA No 128. [ 32 ] The Commission applies to strike rather than seeking

summary dismissal. The limitation period is interpreted strictly [ 33 ] Compliance with Rule 3.15 is mandatory and the six-month time period to both file and serve the Originating Application cannot be extended or varied: Julien at para 6 ; Yuill v Alberta (Workers’ Compensation Appeals Commission) , 2016 ABQB 369 at paras 75 and 78 ; ENMAX at para 13 and 30; Boll at para 68 . Failure to either file or serve within the limitation period is fatal and the desired remedy - setting aside the decision - cannot be granted.

[34] The limitation period is strictly construed: Athabasca CA at para 27. The strict time limit supports the public policy objectivesof finality and certainty. The parties affected by the administrative decision are entitled to know when the outcome is final and legalchallenges are closed: Baker v Drouin, 2017 ABQB 204 at para 13.

Effective public decision-making demands precision and clarity;administrative decision-makers need to know precisely when and how their decisions can be subject to judicial intervention: CentralHalifax Community Association v Halifax (Regional Municipality), 2007 NSCA 39 at para 25, leave to appeal dismissed [2007] SCCANo 279.

Closure allows everyone to move forward: Johannesson v Alberta (Workers' Compensation Board, Appeal Commission),(1995), (AB KB), 32 Alta LR (3d) 373, 175 AR 34 (QB) at para 34. [35] Certainty also allows prospective litigants and the legal profession to organize themselves accordingly because the filing andservice rules are clear.

That clarity encourages prospective litigants to promptly commence and deliver notice of their judicial reviewproceedings, which aligns with the public policy goal of timely process and decision-making in administrative law proceedings. [36] The Alberta Court of Appeal has acknowledged that the duration of the six-month window is “generous”: Athabasca CA atpara 28. Afterall, the parties were already fully engaged in the legal proceeding from which judicial review is sought. Many statutoryappeal periods are much shorter. [37] Ms. Tartal accepts that the six-month limitation period is strictly applied.

However, she contends that the OriginatingApplication was “substantively” filed with this Court and served on the Commission within the time limit. The Originating Application was not served within thelimitation period [38] Litigants are presumed to know the law and the Rules of Court; it is incumbent on every litigant to ensure they comply withthe filing and service requirements (Julien at para 13).

a) What is the applicable limitation date? [39] Rule 3.15(2) prescribes the limitation period: Subject to rule 3.16 [Originating application for judicial review: habeas corpus], an originating application for judicial review to setaside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5[Variation of time periods] does not apply to this time period. [40] Ms. Tartal and the Commission disagree about the calculation of the limitation date in this proceeding. Ms.

Tartal asserts thelimitation date was March 16, 2023, while the Commission submits the date was March 15, 2023. [41] Ms. Tartal argues that the limitation date is determined by s 22(7) of the

Interpretation Act, RSA 2000, c I-8, which states: If an enactment provides that anything is to be done within a time after, from, of or before a specified day, the time does not include thatday. [42] On this basis, Ms. Tartal contends the limitation period expired six months after the day following the date of the decision -March 16 rather than March 15, 2023.

In support of this view, she references Blomer v Workers Compensation Board, 2020 ABCA 334at para 48, where s 22(7) was used to interpret a limitation period under s 13.4(4) of the Workers’ Compensation Act, RSA 2000, c W-15.The Court of Appeal concluded that the statutory limitation period in that case was calculated as six months following the day after thedecision. [43] While the

Interpretation Act applies generally to Alberta enactments, including statutes and regulations, Rule 1.8(

b) states thats 22(7) of the

Interpretation Act does not apply to the Rules of Court. [44] The calculation of the six-month time limit in Rule 3.15(2) for filing and serving the Originating Application is insteaddetermined by Rule 13.4(1): When counting to or from a date in months, time is calculated from the date on which the event or activity occurs in the month to thesame-numbered day in a subsequent or previous month, as the case requires. [45] The Alberta Court of Appeal previously confirmed, under the predecessor to Rule 3.15(2), that “the six-month limitation runsfrom the date of the decision”: Athabasca CA at para 27. [46] The limitation date is therefore March 15, 2023.

b) A filed version of the judicial review application must be served and the timefor service cannot be extended or varied [47] Rule 13.15 states that a document is filed when the court clerk of the judicial centre acknowledges on the document that thedocument is filed in the action. Under Rule 13.14, when the court clerk is “presented” with a commencement document (such as anOriginating Application for Judicial Review), the clerk must endorse on the document the action number assigned to the action andstamp the document with the date it is filed.

[ 48 ] The court clerk also ensures that the document complies with the technical requirements for all filed documents, as described in Rule 13.13. Those requirements include that the document states the name of the Court, the names of the parties, the nature of the document, and an address for service of subsequent documents in the action.

The document must also be legible. [ 49 ] The court clerk’s endorsement of an action number and a filing stamp on a commencement document starts the action or proceeding, authenticates the document, and represents to the world that the action or proceeding exists and the technical rules are materially in compliance. [ 50 ] Rule 3.15(2) requires the Originating Application to be “filed and served within 6 months.” The obligation is sequential: after filing the Originating Application, the filed commencement document must be served within the same six-month period.

Service of the filed document clarifies for the recipient that the proceeding is not just intended, but has been started, and describes the claim definitively. Further, the court clerk’s endorsement confirms that the document is authentic, provides the court number for tracking the action or proceeding, and confirms compliance with the technical rules. [ 51 ] Rule 3.15(2) is interpreted consistently with the foundational principles expressed in Rule 1.2, which promote expeditious and cost-effective process. Requiring timely service of the filed document promotes efficiency.

The respondent need not wait indefinitely for a filed version and may proceed in responding to the application without delay. [ 52 ] Ms. Tartal asks that the failure to serve a filed version of the Originating Application be treated as a procedural irregularity curable by Rule 1.5. [ 53 ] Rule 1.5 states in relevant parts: 1.5(1) If a person contravenes or does not comply with any procedural requirement , or if there is an irregularity in a commencement document, pleading, document, affidavit or prescribed form, a party may apply to the Court (

a) to cure the contravention, non-compliance or irregularity, ... ...

(4) The Court must not cure any contravention, non-compliance or irregularity unless (

a) to do so will cause no irreparable harm to any party, (

b) in doing so the Court imposes terms or conditions that will (

i) eliminate or ameliorate any reparable harm, or (ii) prevent the recurrence of the contravention, non-compliance or irregularity, (

c) in doing so the Court imposes a suitable sanction, if any, for the contravention, non-compliance or irregularity, and (

d) it is in the overall interests of justice to cure the contravention, non-compliance or irregularity.

(5) The Court must not cure any contravention, non-compliance or irregularity if to do so would have the effect of extending a time period that the Court is prohibited from extending . ... [ emphasis added ] [ 54 ] The service requirement in Rule 3.15(2) is substantive in nature, not procedural: ENMAX at para 28. An applicant is obliged to follow the prescribed procedure. A “courtesy copy of an originating application does not equate to service”: ENMAX at para 19.

An unfiled version of an Originating Application does not attest to an existing proceeding and leaves uncertainty about the scope of the claim, which might change before filing.

Mere knowledge of an action does not constitute service: Al-Ghamdi v Alberta , 2017 ABQB 169 at para 7 . [ 55 ] Moreover, Rules 1.5(5) and 3.15(2) expressly prohibit extending the limitation period for the service of judicial review applications. [ 56 ] In WW v Alberta (Human Rights Tribunal) , 2023 ABKB 340 , an Originating Application for Judicial Review was delivered to the Court within the limitation period, but not filed until a few days after the time limit expired. As a courtesy, the court clerk backdated the filing date to satisfy the limitation period.

However, a filed version of the Originating Application was not served within the time limit. The Chambers judge concluded that the service requirement in Rule 3.15(2) must be strictly applied and the time limit cannot be enlarged to serve a backdated Originating Application. An application to extend the time for service was dismissed. [ 57 ] I conclude that Ms. Tartal did not serve a filed version of the Originating Application on the Commission within the time limit as demanded by Rule 3.15(2).

The unfiled version was insufficient because Rules 1.5(5) and 3.15(2) prohibit extending the limitation period and the rules require service of the filed application. [ 58 ] As the service requirement cannot be cured, the failure to serve the Originating Application within the limitation period is fatal to the judicial review.

c) Curing the filing date is unnecessary [ 59 ] Ms. Tartal also asks me to change the filing date on the Originating Application to match the day it was delivered to the court clerk by email. She suggests that Rule 1.5 allows a judge to supervise a court clerk’s

interpretation of when a document is “presented” for filing.

[ 60 ] As the service defect cannot be cured, no purpose is served by directing the court clerk to change the filing date. If I have authority to backdate a filing date, I decline to exercise that power in these circumstances. The Hockey Association was directly affected [ 61 ] Even if I could cure the inadequate service on the Commission, the Originating Application would still be struck because Ms. Tartal failed to serve it on the Hockey Association within the limitation period. [ 62 ] Ms. Tartal concedes that the Hockey Association was not properly served with the Originating Application.

However, she asserts that service was unnecessary because the Hockey Association was not “directly affected” by the decision to dismiss the human rights complaint.

She argues that no dispositive result against the Hockey Association flows from a successful judicial review application because the merits of the human rights complaint will remain unresolved, awaiting an adjudication by the Human Rights Tribunal of Alberta. [ 63 ] The words “directly affected” in Rule 3.15(3)(c) “must be given their ordinary meaning, applied to the particular facts of each case”: Julien at para 8 . [ 64 ] The obligation to include the respondent to the human rights complaint as a party to any judicial review of a decision of the Commission is well-established: Raczynska v Alberta (Human Rights Commission) , 2015 ABQB 494 at para 76 .

In Raczynska , a human rights complaint was discontinued by the Chief Commissioner because the complainant refused to accept a fair and reasonable settlement proposal. The complainant sought judicial review but did not name the respondent to the complaint as a party.

The failure to file against and serve the respondent was determinative of the judicial review proceeding, resulting in dismissal. [ 65 ] In Julien , a judicial review from a decision of the Appeals Commission for Alberta Workers’ Compensation, the Alberta Court of Appeal (at para 8) confirmed that an employer, as a party to the original proceeding before the Appeals Commission, is “always ‘directly affected’ simply by virtue of its financial interest in the outcome.” [ 66 ] The employer in that case was also directly affected because the employee levied several allegations against the employer, “including discriminatory behaviour”: Julien at para 9 . [ 67 ] The reasoning in Julien is analogous to the facts before me.

The Hockey Association was at risk of paying damages to Ms. Tartal if her complaint had merit. The complaint advances allegations of discriminatory behavior, which if meritorious could adversely affect the image and interests of a community association. If the

summary dismissal of that complaint was set aside on judicial review, the Hockey Association would again be exposed to those risks. [ 68 ] Ms. Tartal argues that the Request for Review from the

summary dismissal of her complaint by the Director was a contest between her and the Director, and that the Hockey Association had no interests at stake. I disagree. [ 69 ] The dispute before the Commission was a contest between Ms. Tartal and the Hockey Association. The Hockey Association delivered a response to the complaint and made submissions as part of the investigation conducted by a Human Rights Officer. The Director’s role was only to assess whether the complaint had merit. [ 70 ] For the Request for Review, the parties continued to be Ms. Tartal and the Hockey Association. Ms.

Tartal provided submissions for that review; the Hockey Association did not. However, the Hockey Association continued to be the adverse party to the complaint. The decision of the Human Rights Tribunal, from which Ms. Tartal seeks judicial review, continued to characterize the dispute as a contest between Ms.

Tartal and the Hockey Association. [ 71 ] The fact that a party does not participate in the last stage of the administrative proceeding leading to the decision under judicial review is not determinative of whether that party is directly affected: Julien at para 9 ; Yuill at paras 63-78 . [ 72 ] I conclude that the Hockey Association was directly affected by the decision Ms. Tartal seeks to set aside. Accordingly, she was required to serve that “person or body”, which she failed to do. [ 73 ] The effect of not serving the Hockey Association is that the judicial review was not commenced properly.

The failure to serve is a substantive error that cannot be cured. [ 74 ] The Originating Application is struck on this ground as well. Conclusion [ 75 ] The filed Originating Application was not served within the time limit. Ms. Tartal’s obligation was to ensure that the document was filed with sufficient time to serve it on both the Commission and any directly affected party, which included the Hockey Association. Waiting to file and serve until shortly before the clock expires is a practice to be avoided. [ 76 ] The cross-application is dismissed.

The Originating Application for Judicial Review is struck for being served out of time and for not being served on a directly affected party. [ 77 ] If the parties cannot resolve the costs, they may approach me in writing within 21 days.

Heard on the 1 st day of June, 2023. Additional written submissions received the 7 th and 12 th days of June, 2023. Dated at the City of Edmonton, Alberta this 26 th day of June, 2023. Kevin Feth J.C.K.B.A. Appearances: James Kitchen for Dana Tartal Melissa Luhtanen for the Alberta Human Rights Commission