The Board of Trustees of the Greater St. Albert Roman Catholic Separate School District No. 734 Applicant - v. -, 2014 ABQB 14

Court of Queen ’ s Bench of Alberta Citation: Greater St. Albert Roman Catholic Separate School, District No. 734 v Buterman, 2014 ABQB 14 Date: 20140108 Docket: 1203 14739 Registry: Edmonton Between: The Board of Trustees of the Greater St. Albert Roman Catholic Separate School District No. 734 Applicant - and - Jan Buterman Respondent - and – Chief of the Commission and Tribunals, Alberta Human Rights Commission Respondent by Order _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice S.J. Greckol _________________________________________ ______________

I. Introduction [1] On October 1, 2009, Jan Buterman filed a discrimination complaint against the Board of Trustees of the Greater St. AlbertCatholic Regional Division No. 29 [the School Board] because the School Board removed his name from its substitute teacher list afterhis disclosure that he had been diagnosed with transgenderism and would proceed with gender transition.

The Director of the AlbertaHuman Rights Commission [the Director] dismissed the complaint but the Chief of the Commission and Tribunals [the Chief] decidedthe complaint should not have been dismissed and referred it to a human rights tribunal. [2] On October 3, 2012, the School Board filed an originating application for this judicial review of the Director’s and theChief’s decisions. II. Facts [3] I previously dismissed an application by the Director to strike out the proceedings against him (2013 ABQB 485). For easeof reference, I repeat some of the facts set out there. [4] In January 2008, Mr.

Buterman was diagnosed with transgenderism, clinically known as “gender identity disorder”. Mr.Buterman began working for the School Board as a substitute teacher at the end of March 2008. Around June 17, 2008, on the advice ofhis physician, Mr. Buterman decided that it was time to begin identifying and working as a male. The end of the school term was near.Around June 24, 2008, Mr. Buterman called Mr. Bayus, the School Board’s Deputy Superintendent. He advised Mr.

Bayus that he hadbeen diagnosed with gender identity disorder, a medical condition, and that as part of his transition process he was required to dress andbe seen in public as a male. Mr. Bayus said he would look into the matter, particularly with respect to the issue of Catholic teachings. [5] Mr. Buterman received the substitute teachers’ package for the 2008-2009 school year, and in late August 2008 applied for apermanent position advertised on the School Board’s website.

He continued teaching with the School Board until it unilaterally removedhim from its substitute teacher list in early October 2008. [6] In a letter of October 14, 2008, Mr. Bayus confirmed that Mr. Buterman had been removed from the School Board’ssubstitute teacher list. He wrote that the “reason for removing you from the substitute teachers list follows a conversation we shared lastJune in which you indicated that you had been diagnosed with a gender identity medical condition and that you were undergoing physicalgender changes from the female gender to the male gender.” Mr.

Bayus wrote that in discussions with the Archbishop of the EdmontonDiocese, “the teaching of the Catholic Church is that persons cannot change their gender. One’s gender is considered what God createdus to be.” He indicated that the school division was bound by and lived the teachings of the Catholic Church and that it intentionallyhired teachers who model and live those teachings as well. He concluded that Mr.

Buterman’s gender change was not aligned with theteachings of the Church and he would create confusion and complexity with students and parents as a model and witness to Catholic faithvalues. [7] On October 1, 2009, Mr. Buterman filed a complaint with the Alberta Human Rights Commission alleging that the SchoolBoard’s act of removing his name from the substitute teacher list was discrimination on the basis of gender and physical disability,contrary to s 7(1) of the Alberta Human Rights Act, RSA 2000, c A-25.5 [the Act]. [8] The complaint filed by Mr.

Buterman referred to the Diagnostic and Statistical Manual of Mental Disorders: DSM-IV-TR,4th ed (Arlington, VA: American Psychiatric Association, 2000), which states that gender identity disorder is a hormonal/biologicalintra-uterine phenomenon and that the criteria for gender identity disorder are descriptive of many people who experience dissonancebetween their sex as assigned at birth and their gender identity. [9] The complaint also relied on standards of care adopted by the World Professional Association for Transgender Health,described as the professional consensus about the psychiatric, psychological, medical and surgical management of gender identitydisorder.

According to the Association, “sex reassignment plays an undisputed role in treating Gender Identity Disorder” and comprises“...a ‘Real Life Test,’ legal name and sex name change on identity documents, as well as medically necessary hormone treatments,counselling, psychotherapy, and other medical procedures.” [10] On January 8, 2010, the School Board filed its reply, relying on the special nature of Catholic schools, the requirement that allteachers act as models and witnesses of the teachings of the Catholic Church, and two decisions: Caldwell v Stuart, (SCC), [1984] 2 SCR 603 [Caldwell] and Casagrande v Hinton Roman Catholic District No. 155 (1987), (AB KB),79 AR 241 [Casagrande]. [11] On January 29, 2010, Mr.

Buterman filed a response in which he challenged the School Board’s claim that it is a “mixedpublic/separate school legal entity” and its position that its work rule is lawful. [12] On April 1, 2010, the School Board filed a rejoinder, addressing the response of Mr. Buterman. It reiterated its claim that itoperates denominational schools with the constitutional right to provide religious instruction and that it may conduct its schools in amanner consistent with its denominational values, including dismissal of teachers for denominational cause. [13] On May 20, 2011, the Director summarily dismissed Mr.

Buterman’s complaint against the School Board as being withoutmerit, pursuant to s 22(1)(

a) of the Act. [14] On June 27, 2011, Mr. Buterman requested a review of the Director’s decision pursuant to s 26 of the Act. On July 21, 2011,the School Board filed a reply to the request for a review, asking the Chief to affirm the Director’s decision to dismiss Mr. Buterman’scomplaint or, in the alternative, to order the Director pursuant to s 22(1)(

b) and (

c) of the Act to:

(

i) consider whether St. Albert Catholic Schools and Jan Buterman entered into a settlement agreement; or (ii) determine whether Jan Buterman refused to accept a proposed settlement that was fair and reasonable. [ 15 ] On July 21, 2011, the School Board also asked the Director to deal with the settlement issues under s 22. On July 28, 2011, the Director replied, declining to resolve those issues because he did not have the authority to reconsider a decision to dismiss a complaint. [ 16 ] On July 16, 2012, the Chief overturned the Director’s May 20, 2011 decision and directed that a tribunal hear Mr.

Buterman’s complaint. The Chief did not address the alternative remedy requested; i.e., that the Chief order the Director to deal with the settlement issues. [ 17 ] The Chief concluded that the standard used by the Director, ‘no reasonable prospect of success,’ was too high and not in keeping with the jurisprudence. In essence, the Chief decided: a.

In reviewing the Director’s decision under s 26 of the Act , he must determine whether there is a reasonable basis in the evidence for proceeding to the next stage: Mis v Alberta Human Rights Commission , 2001 ABCA 212 at paras 8 and 9 , 293 AR 391 [ Mis ]; Economic Development Edmonton v Wong , 2005 ABCA 278 , 371 AR 362 [ Wong ]. b. The Director dismissed the complaint on the basis that the action of the School Board was “...lawful and there was no reasonable prospect of success...” before a human rights tribunal.

Because this standard was too high and did not comport with Mis and Wong , the decision of the Director was overturned. c. The Alberta Act , SC 1905, c 3 [ Alberta Act, 1905 ] grants constitutional rights to Roman Catholics in Alberta, including the right to preserve the essential religious character of schools, is protected by s 29 of the Canadian Charter of Rights and Freedoms , and trumps provincial human rights legislation.

While this right includes the right to dismiss teachers for bona fide denominational cause, the limitation on individual rights can only be allowed in cases of bona fide denominational cause: Caldwell; Casagrande . d. There are important and novel questions in this complaint regarding whether the School Board can claim constitutional protection, the extent of that protection on the basis of bona fide denominational cause, and if it cannot, whether the treatment of Mr. Buterman contravenes the Act .

The extent of constitutional protections for Roman Catholics has been the subject of complex litigation to the very highest level of court. At the gatekeeping stage, given the comprehensive submissions and the novel questions, there is a reasonable basis to proceed to tribunal. The facts and case law require a more fulsome examination than can be provided on a documentary review. e. If the School Board cannot claim the constitutional protection sought, then the Board may have to show that its treatment of Mr.

Buterman is justifiable pursuant to the bona fide occupational requirement defence, itself a complex analysis better undertaken by the tribunal than on a documentary review. f. Since the Director did not determine whether a fair and reasonable settlement has been refused, the Chief could not review it. The question of settlement is disputed, may require viva voce evidence, and is better left to the tribunal hearing. [ 18 ] In a letter dated September 20, 2012, the School Board again asked the Chief to address the relief it sought and to order the Director to deal with the settlement issues.

By correspondence of September 24, 2012, the Chief declined to do so, advising: “[y]ou have my considered decision in this matter.” [ 19 ] In a separate letter dated September 20, 2012, the School Board again asked the Director to address the settlement issues. On September 25, 2012, the Director returned that letter and on September 27, 2012, he declines to address the settlement issues, advising that the matter had been sent for a tribunal hearing and that further correspondence should be directed to the Chief. [ 20 ] On October 3, 2012, the School Board filed an originating application for judicial review.

The School Board claims, as against the Chief: (

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

Buterman has refused to accept a settlement that was fair and reasonable. The School Board claims, as against the Director: (

i) an order in the nature of mandamus directing him to consider whether the School Board and Mr. Buterman entered into a settlement agreement; and (ii) an order in the nature of mandamus directing him to determine whether Mr. Buterman refused to accept a proposed settlement that was fair and reasonable.

III. Issues [ 21 ] The issues to be addressed in this judicial review include the following: A. What is the appropriate standard of review for the decisions of the Chief of the Commission and Tribunals? B. Did the School Board bring its application for judicial review against the Director in time? C. Did the Director unreasonably fail to decide the settlement issues? Did the Chief unreasonably fail to refer the matter back to the Director for the settlement issues to be decided? D. Was the Chief’s decision to send the matter to a tribunal unreasonable? IV. Legislation [ 22 ] The complaint is brought under s 7 of the Alberta Human Rights Act , RSA 2000, c A-25.5: 7(1) No employer shall (

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

b) discriminate against any person with regard to employment or any term or condition of employment, because of the … physical disability, mental disability …of that person … . … (3) Subsection (1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement. V. Analysis A. Standard of Review Arguments of the parties [ 23 ] Counsel for the School Board submits that the Chief’s

interpretation of relevant statutes and authorities dealing with the constitutional rights and privileges accorded Catholic separate school supporters is necessarily subject to a correctness review as a matter of constitutional

interpretation or

interpretation of statutes outside the particular expertise of the tribunal, citing Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 [ Dunsmuir ].

He suggests this applies even more so given the Chief in this case has left these determinations for the human rights tribunal, which according to the Administrative Procedures and Jurisdiction Act , RSA 2000, c A-3, ss 10, 11, 16 [ APJA ] and Designation of Constitutional Decision Makers Regulation , AR 69/2006, s 2 does not have the jurisdiction to address constitutional questions. [ 24 ] Counsel for the School Board argues that the Chief’s and the Director’s refusals to determine if it and Mr. Buterman had entered into a settlement or if Mr.

Buterman had refused a reasonable settlement offer “engage the law on determination of jurisdiction and when a statutory delegate becomes functus officio .” He says these are issues of general importance to the legal system, again attracting a correctness standard of review ( Dunsmuir; Alberta Teachers’ Association v Northern Lights School Division No. 69, 2013 ABQB 220 at paras 31 , 33-38). [ 25 ] Counsel for the School Board takes the position that the Chief’s decision to set aside the Director’s decision and refer the complaint to a hearing should be reviewed on the standard of reasonableness, but this decision must be premised on the correct determinations having been made by the Chief on these constitutional, statutory and general law issues. [ 26 ] Counsel for Mr.

Buterman submits that the standard of review for all of the issues is reasonableness as defined in Dunsmuir . She relies on Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) , 2012 SCC 10 , [2012] 1 SCR 364 [ Halifax ] to argue that courts should exercise great restraint in intervening in the early stages of a human rights complaints process. [ 27 ] With respect to the Chief’s decision to refer this complaint to tribunal, Counsel for Mr. Buterman quotes Halifax at para 45 .

The court is required to ask “whether there was any reasonable basis on the law or the evidence for the Commission’s decision to refer the complaint to a board of inquiry.” She suggests this standard should similarly be applied to the issue of whether the Director retained the ability to deal with the settlement issue raised by the School Board. If the conclusions of the Director and the Chief fall within a range of reasonable options they must be afforded great deference. [ 28 ] Counsel for Mr.

Buterman agrees with the School Board that the appropriate standard of review for a constitutional issue is correctness, but she denies that any constitutional issue was determined by the Chief or must be addressed on this judicial review. [ 29 ] Both the Chief and the Director also rely on Halifax as authority for a reasonableness standard of review. Both cite the gatekeeping function of the Commission, noting that it alone is vested with the authority and expertise necessary to determine whether

complaints like Mr. Buterman’s should be sent to a hearing before the tribunal. [ 30 ] Counsel for the Chief and the Director further rely on Halifax to argue that the Court should be reluctant to intervene where the substantive points of the complaint have not yet been investigated by a board of inquiry. The Chief cites s 35 of the Act , which he characterizes as a “partial privative clause”. Decisions as to whether a complaint should be dismissed, or whether a reasonable settlement was rejected, are final and binding on the parties.

The legislative intent is that the Chief`s decisions should not be easily disturbed. [ 31 ] The Chief and the Director take no position on whether their respective decisions were reasonable. The Chief points to Halifax to reiterate that judicial intervention is only justifiable where the decision to send the complaint to hearing has no basis in law or on the evidence. [ 32 ] Counsel for Mr.

Buterman, the Chief and the Director all rely on the recent decision of McLean v British Columbia (Securities Commission) 2013 SCC 67 [ McLean ], particularly at paras 30 – 31 and 38, as confirming and extending the principles set out in Dunsmuir . Analysis [ 33 ] The Supreme Court of Canada in Dunsmuir formulated the modern approach to judicial review. The majority of the Court, at para 28, stated that the function of judicial review is to “...ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes”.

The Court determined a system of judicial review comprising two standards, reasonableness and correctness (para 45).

It refined our understanding of the standard of reasonableness, that it is concerned with justification, transparency and intelligibility within the decision-making process, but also with “...whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (para 47). [ 34 ] The majority of the Court also confirmed that the standard of correctness is maintained in respect of jurisdictional and some other questions of law (para 50). [ 35 ] Dunsmuir confirmed that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (para 54; see also Smith v Alliance Pipeline Ltd. , 2011 SCC 7 at para 28 , [2011] 1 SCR 160). [ 36 ] In Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association , 2011 SCC 61 , [2011] 3 SCR 654 [ Information and Privacy Commissioner ], Rothstein J writing for the Supreme Court of Canada summarized the Dunsmuir approach and the categories for application of the correctness standard at para 30: This principle [of deference] applies unless the

interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply, i.e., “constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator's expertise, ... ‘[q]uestions regarding the jurisdictional lines between two or more competing specialized tribunals’ [and] true questions of jurisdiction or vires ” ( Canada (Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471 at para 18 , per LeBel and Cromwell JJ...). [ 37 ] Rothstein J continues, at para 34, that “...unless the situation is exceptional ... the

interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory

interpretation subject to deference on judicial review.” [ 38 ] In the Halifax decision, the municipality applied for judicial review of the Commissioner’s decision to refer the complaint against it to a board of inquiry. The complainant alleged that in the funding arrangements for the French first language schools, Halifax discriminated against him and his children in the provision of services or facilities, on the basis of their Acadian ethnic heritage. The complainant also alleged violation of s 15 of the Canadian Charter of Rights and Freedoms .

Writing for the Supreme Court of Canada, Cromwell J found, at para 17, the Commission’s decision was not a determination of its jurisdiction, but rather a discretionary decision that an inquiry was warranted in all of the circumstances.

He continued: “...the reasonableness standard of review, applied in the context of proposed judicial intervention at this preliminary stage of the Commission’s work, may be expressed as follows: is there a reasonable basis in law or on the evidence for the Commission’s conclusion that an inquiry is warranted?” [ 39 ] In Halifax , at para 36 , Cromwell J sounded a warning against early judicial intervention in human rights process: 36 While such intervention may sometimes be appropriate, there are sound practical and theoretical reasons for restraint: … .

Early judicial intervention risks depriving the reviewing court of a full record bearing on the issue; allows for judicial imposition of a “correctness” standard with respect to legal questions that, had they been decided by the tribunal, might be entitled to deference; encourages an inefficient multiplicity of proceedings in tribunals and courts; and may compromise carefully crafted, comprehensive legislative regimes ... .

Thus, reviewing courts now show more restraint in short-circuiting the decision-making role of the tribunal, particularly when asked to review a preliminary screening decision such as that at issue in Bell (1971). [ 40 ] Cromwell J, at para 43, also noted that the reviewing court’s approach must reflect the appropriate level of deference to both the substance of the decision and to its on-going process. [ 41 ] Of importance to the case now before me, the Court in Halifax disentangled the legal issues that arise on the substance of the complaint from the exercise of discretion to refer the complaint to tribunal: 50 Second, this formulation, in my view, is well adapted to the particular role which the legislation gives to the Commission, a role which has been described by this Court as "an administrative and screening" role: Cooper , at p. 893.

While no doubt the Commission, in deciding to refer for inquiry, has some quite limited role to screen the merits of the complaint, its task is not to decide the issues which underlie its decision to proceed to the next stage; these are left to the board of inquiry : Zündel (2000) at para 4. By not focussing solely on the merits of the complaint, the formulation I propose recognizes that the Commission might decide to appoint a board of inquiry in

order to allow the board, after a full hearing, to decide a jurisdictional or other important legal point. This would provide a reasonable basis for the Commission's decision . (emphasis added) [ 42 ] The Court in Halifax concluded that when reviewing a decision to refer a complaint to a board of inquiry, the reviewing court should ask itself whether there is any reasonable basis in law or on the evidence to support that decision (para 53). [ 43 ] Counsel referred to the recent decision of the Supreme Court of Canada: Mclean .

There, the British Columbia Securities Commission interpreted its constituent statute to determine an operative time limit for reciprocal enforcement of an Ontario order. At paras 19-33, Moldaver J, writing for the Court, confirms that the modern approach to judicial review recognizes that courts may not be as qualified as the administrative tribunal to interpret the tribunal’s home statute; that deference is warranted.

The resolution of unclear language in a home statute is best left to the administrative tribunal as it will be in the best position to weigh policy considerations involved in choosing between multiple reasonable

interpretations. In McLean , the limitation issue did not fall within one of the exceptions warranting a correctness standard of review. Though a limitation issue is generally of central importance to the fair administration of justice, here it involved a statutory

interpretation in a particular context within the Commission’s specialized area of expertise. [ 44 ] The Alberta Court of Appeal had concluded, long before Halifax , that when the Chief Commissioner decides to send or not send a complaint to a human rights panel, the standard of review is whether his decision is reasonable or not: Callan v Suncor Inc , 2006 ABCA 15 at para 15 , 380 AR 247. In a recent decision of this Court, Caron v Alberta (Chief Commissioner, Human Rights Commission) , 2013 ABQB 13 , 551 AR 355, Moreau J observes, at para 47, that the Chief has a "gatekeeper" role under s 26(3)(a)(

i) of the Act in deciding whether or not a complaint should be dismissed; that according to well-established case law, the reasonableness standard of review applies to review of that decision; and the question on a judicial review is whether there is a “reasonable basis in the evidence to proceed”. [ 45 ] On July 19, 2012, the Chief issued his decision pursuant to s 26(3)(a). He overturned the decision of the Director to dismiss the complaint, and directed that a tribunal would be appointed to hear the case.

The Chief reviewed the history of the factual complaint as well as the arguments marshalled by both the complainant and the School Board. He considered the decision of the Director to dismiss the complaint and his reasons, including his view that the complaint had no reasonable prospect of success. He considered the request for review filed by Mr. Buterman on June 27, 2011 and the response filed by the School Board.

The Chief also considered the argument advanced by the School Board that in the event the Chief found merit in the complaint, he must consider the validity of the alleged settlement. [ 46 ] The Chief correctly stated that the test he must apply in carrying out his review function under s 26 of the Act is whether there is a reasonable basis in the evidence for proceeding to the next stage. He notes, based on the authorities, that the “threshold is low and as gatekeeper I am given a wide latitude in performing the screening function”; that it is not his function to determine whether the complaint is made out (p 4).

He found that the standard used by the Director – that the complaint had no reasonable prospect of success – was too high. Instead, the Chief applied the standard set by the Alberta Court of Appeal in Mis and Wong , and found a reasonable basis in the evidence to proceed to the next stage, concluding that the Director’s decision must be overturned. [ 47 ] The decision of the Chief exercising his gatekeeper’s function to determine whether there is a reasonable basis on the evidence to proceed to hearing, attracts judicial review on the standard of reasonableness.

That is what the legislature intended when protecting that decision by a near privative clause. That is what is called for by the jurisprudence from the Supreme Court of Canada, the Alberta Court of Appeal, and this Court. All parties to this application agree that the general standard of review applicable to a decision of the Chief in his gatekeeper function is that of reasonableness. However, the School Board contends that the Chief made two determinations that fall within the exception to this general rule and so, must be reviewed on the correctness standard.

Further, the School Board argues that, in any event, these and other errors cumulatively must result in a finding that the Chief’s decision to refer the complaint to a human rights tribunal is unreasonable. [ 48 ] First, the School Board alleges that the Chief made a decision of constitutional dimensions without jurisdiction to do so, and that this decision must be reviewed for correctness.

However, after describing the constitutional dilemma, the Chief specifically withdrew from pre-judgment: At this gatekeeping stage in the process, given the comprehensive submissions before me which appropriately set out important and novel questions of law as outlined above, there is a reasonable basis to proceed to a tribunal. Additionally, even if the tribunal finds that the Board can claim constitutional protection, that protection must be claimed on the basis of bona fide denominational cause.

While I acknowledge that teachers can be dismissed for bona fide denominational cause, the facts of this Complaint (non-Catholic teacher hired in a public system claiming a mental and physical disability) combined with case law regarding bona fide denominational cause, direct a more fulsome examination than can be provided on documentary review. Further, if the tribunal finds that the Board cannot claim the constitutional protections as enunciated above, the Board may then have to justify its treatment of Mr.

Buterman, as a non-Catholic teacher teaching in a public Catholic school board, pursuant to a bona fide occupational requirement. Again, this analysis will be complex and the tribunal is better placed to receive any evidence it deems relevant which may include evidence regarding Archbishop Smith’s statement of the Church’s position, medical evidence regarding gender identity disorder, and other relevant information to determine whether any discrimination can be justified pursuant to the Act .

There appears to be no jurisprudence on point with respect to whether gender identity per se constitutes a bona fide occupational requirement in this type of public Catholic school. In depth analysis, as directed by the jurisprudence, around proving bona fide occupational requirement is better undertaken in a tribunal hearing, rather than on documentary review. [ 49 ] Neither did the Chief decide a question of law central to the legal system, as that exception to the reasonableness standard has been discussed in Halifax and McLean.

He simply exercised his gatekeeping function and decided there was a reasonable basis on the facts and law before him to advance the complaint to tribunal hearing. The correctness standard does not apply. [ 50 ] Secondly, the School Board argues that the Chief interpreted s 22 of the Act , and in so doing, made a jurisdictional finding

that is subject to the standard of correctness.

Section 22 empowers the Director to dismiss a complaint if it is without merit; discontinuethe proceedings if of the view that the complainant has refused to accept a fair and reasonable settlement offer; or report to the Chief thatthe parties have been unable to settle the complaint. [51] In its July 21, 2011 response to the request for review, the School Board asked the Chief to uphold the dismissal; but if not, toorder the Director to (

a) declare that the complaint was settled or (

b) determine whether the proceedings should be discontinued becausethe complainant has refused to accept a fair and reasonable settlement proposal. [52] On this point, the Chief wrote, at p 6: Lastly, I do not (as opposed to the Director) have the power, in this review process, to discontinue complaints based on whether or not afair and reasonable settlement has been offered. My power is limited to reviewing the Director’s decision, which when made, was notevaluating a proposed settlement that was fair and reasonable.

Additionally, while I appreciate the efforts of the Respondent to resolvethis dispute, I note that whether or not a settlement offer was accepted is a point of dispute between the parties and may require viva voceevidence. Again, the tribunal is better placed to hear this issue. [53] The Chief states that his power is to review the decision of the Director. The Director did not make a decision under either ss22(1)(

b) or (c); he acceded to the request of the School Board to “... dismiss Buterman’s complaint on the ground that it is without merit…under s 22(1)(a).” The Chief inferentially rendered an

interpretation of s 22 by declining to refer the matter back to the Director todecide the settlement issue under s 22(1)(

b) or (c). The parties hold opposing

interpretations of s 22 of the Act that are considered below;however, the review of the Chief’s chosen

interpretation, too, must be on the reasonableness standard. [54]

Interpretations made by the Chief as to the provisions and processes set out in the Act are decisions deep within his hometerritory: s 22 governs the role of the Director in dealing with a complaint; s 26(3) governs the role of the Chief on review of thosedecisions. It is neither a constitutional question; nor a question regarding jurisdictional lines between competing specialized tribunals; nora question of central importance to the legal system as a whole, nor a true question of jurisdiction or vires.

The wise dicta of Dickson J inCanadian Union of Public Employees Local 963 v New Brunswick Liquor Corp, (SCC), [1979] 2 SCR 227 at 233, thatthe “...courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which maybedoubtfully so” was recently remembered by Cromwell J in the Information and Privacy Commissioner case at para 95. [55] The Director`s and the Chief`s implicit

interpretation of their powers under the Act will be reviewed on the reasonablenessstandard. The School Board’s argument that the Chief’s alleged errors cumulatively result in an unreasonable decision is consideredbelow. Conclusion [56] Following the decisions of the Supreme Court of Canada in the Dunsmuir, Halifax and Mclean, it is my view that thedecision of the Chief in this case, and its component parts, must be reviewed against the standard of reasonableness. The Chief wasexercising his gatekeeper function to review the Director’s dismissal of the complaint.

He posed the constitutional and other questionsraised by the complaint rather than answering them. He applied the test required by the Alberta Court of Appeal and the Supreme Courtof Canada to find that there was a reasonable basis in the evidence to proceed to the next stage, the tribunal hearing. [57] The Chief necessarily interpreted s 22 and s 26 of the Act. This statutory

interpretation was in a particular context within theChief’s specialized area of expertise. He followed the approach contemplated by Cromwell J in Halifax at para 50: rather than focussolely on the merits of the complaint, the Chief decided to appoint a human rights tribunal under s 27(1)(

b) of the Act in order that thetribunal would, after a full hearing, decide the legal issues. The question is whether the Chief had a reasonable basis for his decision. [58] To rely again upon the decision of Moldaver J in McLean, at para 31, the modern approach to judicial review recognizes thatcourts may not be as qualified as the administrative tribunal to interpret its home statute and, as a result, deference is warranted. Theexpertise of the Chair of the Commission and Tribunals is beyond question.

The resolution of unclear language in a home statute is bestleft to the administrative tribunal as it will be in the best position to weigh policy considerations involved in choosing between multiplereasonable

interpretations. In my view, this was the intention of the legislature when it granted to the Chief the power to review theDirector’s decisions, thereby granting him the authority to oversee human rights complaints process, with the protection of a partialprivative clause. His decision to advance the complaint to hearing is entitled to the utmost deference and respect. B. Did the School Board Bring its Application for Judicial Review Against theDirector in Time? [59] The chronology of events will assist to consider this ground of review. a. On October 14, 2008, Mr.

Buterman was removed from the substitute teacher list. b. On October 1, 2009, Mr. Buterman filed a human rights complaint. c. On January 8, 29 and April 1, 2010 respectively, the reply of the School Board, response of Mr. Buterman and rejoinder of theSchool Board were filed. The relief requested by the School Board was that the Director dismiss the complaint. d. On May 20, 2011, the Director dismissed the complaint, finding “... this decision was lawful and that there is no reasonableprospect that the Complainant could be successful before a human rights tribunal.” e. On June 27, 2011 Mr.

Buterman filed a request for review of the Director’s decision. f. On July 21, 2011, the School Board filed its reply to the request for review, asking that the Chief affirm the Director’s decision or,

in the alternative, order the Director to (

a) declare the complaint settled; or (

b) determine whether to discontinue the proceedings becausethe complainant refused to accept a fair and reasonable settlement proposal. g. On July 21, 2011, the School Board also sent a request to the Director – that if the Chief decides the complaint should not havebeen dismissed, the Director should exercise his authority to (

a) declare that the complaint was settled or (

b) discontinue the proceedingsbecause Mr. Buterman has refused to accept a fair and reasonable settlement proposal. h. On July 28, 2011, the Director replied that the Act does not give him authority to reconsider a decision to dismiss a complaint. i. On July 16, 2012, the Chief overturned the Director’s decision to dismiss the complaint, appointed a tribunal and decided thatsince the Director did not determine whether a fair and reasonable settlement had been made or accepted, he could not review it. j. On September 20, 2012, the School Board reiterated its requests for further relief. k.

On September 24, 2012, the Chief wrote that the School Board had his “considered decision in this matter”. l. On September 27, 2012, the Director wrote that the matter had been dealt with. m. On October 3, 2012, the School Board filed for judicial review. [60] Rule 3.15(1) of the Rules of Court requires that an originating application be filed for judicial review if the applicant seeks aremedy against a body whose decision, act or omission is subject to review.

Rule 3.15(2) requires it be filed within 6 months of the“decision or act”. [61] The School Board filed its application for judicial review on October 18, 2012, some 18 months after the Director rendered itsdecision to dismiss the complaint and 15 months after the Director decided he did not have authority to reconsider his decision and dealwith settlement issues. The Director says the application is time barred. The School Board relies on its on-going pleas for a differentdecision under s 22(1) as generating a new date to file for judicial review.

Arguments of the parties [62] Counsel for the Director contends the School Board’s application against it was brought beyond the six-month time limitationprescribed by the Alberta Rules of Court. Counsel argues that the “courtesy letter” of September 27, 2012 was not a “decision, act oromission” within the meaning of r 3.15(1) of the Rules so as to be subject to judicial review. Counsel contends that the “decision, act oromission” sought to be reviewed must be quasi-judicial, relying on Nguyen v Alberta (Alberta Worker’s Compensation AppealsCommission), 2008 ABQB 624 at paras 19-22, 470 AR 1 [Nguyen].

In that case, the applicant wrote to the Registrar requestinginformation. The Registrar then wrote a letter providing the information, referring back to a previous decision. Moen J found that thisletter was not a decision amenable to judicial review as the letter did not disclose a decision or even an “act”; it merely providedinformation from the decisions made earlier by the Appeals Commission.

Moen J, at para 21, agreed with Veit J’s statement inJohannesson v Alberta (Workers’ Compensation Board, Appeals Commission) (1995), (AB KB), 175 AR 34 (QB)that an “act” must be quasi-judicial, “...that is, there must be a decision or something done that affects the rights of a party. To decideotherwise would put every act by every civil servant within the purview of judicial review...”. [63] Counsel for the Director submits that, in any event, after the Director issued the letter dismissing the complaint on May 20,2011, he was functus officio.

Counsel relies on Brochu v Grande Prairie (City of), 2004 ABQB 182, 358 AR 220 [Brochu] in whichVeit J dealt with an application to set aside a decision of the City’s Chief Administrative Officer. She considered whether the ChiefAdministrative Officer had exhausted his jurisdiction to decide or whether he could issue a revised decision. She concluded, at para 24,that he could not do so. [64] Counsel for Mr. Buterman points out that the September 20, 2012 letter from the School Board and the September 27, 2012response from the Director were, in essence, a repeat of their letters of July 21 and 28, 2011.

She argues that as the School Board did notseek judicial review of the Director’s decision of July 28, 2011 within six months, the application for review was time barred when itwas filed on October 3, 2012. She says review of both sets of correspondence shows unequivocally that the Director was asked toaddress the same issues for the same reasons in both requests, the latter being merely an attempt to revive the expired limitation period. [65] Counsel for the School Board takes the position it filed the application for review within six months from the act which is thesubject of its application.

He does not agree the Director was functus officio from May 20, 2011 when he dismissed the complaint, or byJune 27, 2011, when the complaint was referred to the Chief.

Nor does the School Board agree the pivotal decision by the Director todecline to deal with the settlement issues was made July 28, 2011. [66] Counsel for the School Board argues that the July 21, 2011 request that the Director consider the settlement issues washypothetical, moot or not yet ripe for consideration on that date as it was contingent on the Chief making his decision, including whetherhe should order the Director to determine the settlement issues.

Counsel argues that it was only after the Chief overturned the Director’sdecision on July 19, 2012, and neglected or failed to order the Director to determine the settlement issues, that its request of the Directorwas triggered. That request was made again on September 20, 2012, after it became a live issue by virtue of the Chief`s decision. In thealternative, the School Board asserts its September 20, 2012 request was a fresh request under fresh circumstances which required a freshresponse.

In either case, the application for judicial review was timely. [67] Counsel for the School Board also says that the six-month time limit in r 3.15(2) applies only to “decisions” and “acts”, andnot to “omissions”. There is no time limit for filing against the decision of the Director since it is an “omission”, a concept not includedin r 3.15(2). Analysis

[ 68 ] What happened here is that the School Board asked the Director to dismiss the complaint and he did so, on May 20, 2011. Mr. Buterman requested that the Chief review that decision. The School Board responded to the Chief, but also included what it describes as a conditional request to the Director, on July 21, 2011: if the Chief should decide in favour of the complaint, the Director should declare the complaint settled or discontinued because a reasonable settlement offer had been refused. In the School Board’s view, the request was activated by the Chief’s decision on July 16, 2012.

However, by then, the horses were already out of the gate. On July 28, 2011, the Director had responded that the Act does not provide him with authority to reconsider his decision. It is this refusal to act by the Director that was challenged by an application for order in the nature of mandamus to force the Director to do as requested, but the application was not brought until October 3, 2012. In my view, it is this fact that is determinative of the time limit issue. [ 69 ] The Director’s response on July 28, 2011 was a decision based upon his

interpretation of the Act . It was not an “omission” as that term is used in r 3.15(1). Neither was it equivocal nor conditional upon a future event. The prospective or conditional nature of the School Board’s request does not alter the fact that the Director provided his decision immediately, on July 28, 2011, not after the Chief made his decision. [ 70 ] The subsequent request of the School Board on September 20, 2012 and the Director`s response of September 27, 2012 were simply reiterative of the original positions of each. The Director did not resile from, alter or amend his original decision.

The Director’s September 27th letter was, as described by counsel, an informative, courtesy letter rather than a quasi-judicial “decision, act or omission” subject to judicial review: Nguyen at paras 19-22 . [ 71 ] Further, once the Director had fulfilled his statutory mandate under s 22 of the Act , he was functus officio with respect to his powers under s 22, as that concept is defined in Brochu . The Director’s letter of July 28, 2011 conveyed his view that he had no further statutory authority to act under s 22, but the School Board did not challenge that determination in time.

Conclusion [ 72 ] I am of the view that the time limit to review the decision by the Director that he had no authority to re-consider his decision began to run on July 28, 2011. Neither the subsequent reiteration of the request by the School Board on September 20, 2012, nor the reiterative response by the Director served to revive that time limit.

The School Board filed its application for judicial review on October 3, 2012, long after the six-month limit for review had expired. [ 73 ] I must also note that the School Board could have asked the Director at the outset to discontinue the proceedings because a fair and reasonable offer had been refused under s 22(1)(b); or, in the alternative, to dismiss the complaint under s 22(1)(a). The School Board did not do so. It now seeks to remedy this problem by offering an

interpretation of the statute that it will not bear; one that would render a cumbersome, time consuming process of circling back to the Director for further consideration after the Chief’s review decision. There is no statutory authority for such process. [ 74 ] Having concluded that the School Board has not met the prescribed time limit as raised by the Director, the application for judicial review of the Director’s decision must be dismissed. [ 75 ] In case I am wrong that the School Board was out of time to seek judicial review of the Director’s decision, I address the School Board’s challenge to the Director’s

interpretation of his powers under s 22 below. C. Did the Director Unreasonably Fail to Decide the Settlement Issues? Did the Chief Unreasonably Fail to Refer the Matter Back to the Director for the Settlement Issues to be Decided?

Arguments of the parties [ 76 ] Counsel for the School Board submits that a statutory delegate under the Act does not have jurisdiction to continue processing a complaint where the complainant and the respondent have settled the complaint, or where the complainant has refused to accept a fair and reasonable settlement offer, relying upon Chow v Mobil Oil Canada Ltd , 1999 ABQB 1026 at paras 71 , 100, 105, 248 AR 372 [ Chow ]. [ 77 ] Counsel argues that the Director must decide whether there has been a refusal to accept a proposed settlement that was fair and reasonable as a condition precedent to appointment of a tribunal under s 27 of the Act .

Further, since the sole task of the tribunal is to consider the merits of the complaint, it is not authorized to determine settlement issues. [ 78 ] Counsel for the School Board submits that after the Chief found Mr. Buterman’s complaint should not have been dismissed, he was required to do one of two things: either consider whether a settlement agreement was entered, so that the Director may declare the complaint settled, or consider whether a reasonable settlement proposal had been rejected, so the Director may discontinue the complaint.

Since only the Director can determine settlement issues the matter should have been remitted back to him for this determination. [ 79 ] Counsel for the School Board takes the position the Director is never functus officio because he has the jurisdiction to make those determinations at any time during the process, as s 22 specifically uses that phrase; and his powers under s 22(1) are inclusive rather than disjunctive.

It contends the comment of Rooke J (as he then was) in Chow at para 93 , that only a panel [in that case, a human rights tribunal] has the jurisdiction to determine questions of law was made per incuriam . [ 80 ] Counsel for the School Board acknowledges that the settlement discussions were not held under the auspices of the Commission, but the conciliator was apprised of the discussions. The Director should have enquired and determined that the complaint was settled when asked to do so since he has the authority to act “at any time” by the express words of s 22.

[81] Counsel maintains that because the Director did not decide either settlement issue, his jurisdiction was not exhausted. Insupport of his position, he refers to a comment made in Mis at para 18. Counsel also refers to the

Interpretation Act, RSA 2000, c 1-8 forthe

interpretation of the word “may” as permissive and empowering; and to Elmer Driedger, The Construction of Statutes, 2d ed(Toronto: Butterworths, 1983), on the inclusive use of the word “or”. [82] Based on an

interpretation of s 22 that gives the Director never-ending authority, the School Board argues the Chief shouldhave referred the matter back to him to deal with the settlement issues. [83] Counsel for the Director argues that the

interpretation of the Act advanced by the School Board leads to an absurdity, as itwould mean the Director could discontinue proceedings because of a settlement proposal “at any time” up to or after hearing before theSupreme Court of Canada. He relies on the interpretative approach commended in Syncrude Canada Ltd v Alberta (Human Rights andCitizenship Commission), 2008 ABCA 217 at para 11, 432 AR 333 [Syncrude]. [84] Counsel for the Director argues that the

interpretation of s 22 is informed by ss 26 and 27 and must be read in the context ofthe entire Act; that together the provisions make for a cohesive whole that is a functional and administratively efficient system. He arguesthat the

interpretation advanced by the School Board would result in a chaotic approach to complaints, backwards to and forward fromthe Director at the whim of the respondent and its settlement proposals. [85] Counsel for the Director relies on Chow at paras 88 to 94, for the proposition that issues relating to a settlement between theparties are, for the most part, questions of law that are to be determined at the hearing before the tribunal.

To allow the Director and thetribunal to simultaneously consider issues relating to the same complaint would lead to inefficiency and inconsistent results. [86] Counsel for the Director also notes that for a settlement proposal to be fair and reasonable under s 22, the respondent mustacknowledge discrimination, or the purposes of the Act will not have been met. [87] Counsel for Mr. Buterman, too, advanced a holistic rendering of the Act. She adverts to the lofty principles of the

Preamble tothe Act. She notes that the function of the Commission as set out in s 16(

a) is to forward the principles of equality. She takes issue withthe School Board view that the purpose of the Commission is to achieve resolution of complaints; rather, s 16(1)(

f) specifies it is “…topromote an understanding of, acceptance, of and compliance with this Act”. Counsel for Mr. Buterman argues that the exercise ofstatutory

interpretation must involve the statute in its entirety, not one phrase or

section in isolation. She notes that the Act contemplatesthat one approach to effecting settlement is through investigation, but this complaint was not investigated prior to dismissal. [88] Counsel for Mr. Buterman emphasizes that the phrase, “the Director may at any time”, in s 22, reposes in the Directorcomplete discretion as to when the complaint is “ripe” to be advanced, without the constraint of a time limit. She says that this broaddiscretion makes policy sense as the Commission’s case load or the depth of investigation required in a particular case may influence thespeed of the process.

She argues there is a public interest component inherent in settlement of a human rights complaint, so that for asettlement proposal to be “fair and reasonable” the Director may insist upon an admission of liability. She notes that Chow concernedissues of settlement and whether human rights claims were resolved. Contrary to the views of the School Board, the Court in Chow heldthat the tribunal has jurisdiction to decide the question of settlement (para 94) and the Director does not (para 88). Under s 26, the Chiefassumes its authority and the Director’s role is exhausted. Section 26(3)(

a) and s 27, which delineate the Chief’s role, are expressed inmandatory terms. [89] Counsel says there is no statutory authority for the complaint to circle back to the Director once the Chief assumes hisresponsibilities. She relies upon the decision of Canadian Museum of Civilization Corp v Public Service Alliance of Canada, Local70396, 2006 FC 703 at paras 58 – 60, 294 FTR 163 [Canadian Museum] for the proposition that once the Commission refers the matterto tribunal, it is functus officio.

In Canadian Museum, the Court relied on Chandler v Alberta Association of Architects, (SCC), [1989] 2 SCR 848 at 861 [Chandler], to the effect that once a tribunal has made a final decision in respect of a matter it hasdecided in accordance with its enabling statute, that decision cannot be revisited without statutory authority. [90] Counsel also refers to Mckenzie Forest Products Inc. v Ontario Human Rights Commission (2000), (ONCA), 48 OR (3d) 150 at para 31 – 34 to the same effect.

In that decision at para 46, McMurty CJ (as he then was) refers to ActionTravail des Femmes v Canadian National Railway Co, (SCC), [1987] 1 SCR 1114 at 1134 [Action Travail desFemmes], high authority calling for a purposive approach to the

interpretation of human rights legislation. [91] Counsel for Mr. Buterman argues it is absurd to suggest that the Director maintains power at any point in the process todiscontinue because of a settlement proposal. There is no logic to the School Board position that “at any time” means to the end oftribunal process – if its’

interpretation is correct, the Director’s authority continues indefinitely, even to time of hearing before theSupreme Court of Canada. Another absurdity is revealed because if the complaint could circle back to the Director, who then finds a fairand reasonable settlement proposal had been made, that decision too could be reviewed by the Chief. If he disagreed, he would beobliged to appoint a second tribunal, which is nonsensical. Further, public policy militates against the School Board

interpretation: asystem in which the complaint circles back at the behest of the respondent is at odds with the adversarial system where disputes moveinevitably towards litigation with ever-present pressure to resolve. [92] Counsel notes that once the Chief appoints a tribunal, by virtue of s 28(

a) of the Act, the Director becomes a party to theproceedings before the tribunal. If the Director had authority to reconsider settlement issues at that stage, he would be in a conflict ofinterest, as a decision maker cannot be a party in a matter over which he has decision-making capacity, nor could this prospect have beenintended by the legislature. Counsel argues says that the School Board’s

interpretation of Act would yield a system that is chaotic,impossible to administer, and absurd. [93] Counsel for the Chief submits that the legislation does not authorize the Chief to remit matters back to the Director forreconsideration. Counsel suggests that his options for dealing with a complaint are limited by s 26(3) of the Act which states that theChief may decide whether the complaint should have been dismissed, or whether a reasonable settlement was offered. Having decidedthe complaint should not have been dismissed, the Chief was obliged to appoint a tribunal under s 27(1)(b). He had no authority to referthe matter back to the Director.

[ 94 ] Counsel for the Chief points to s 35 of the Act which indicates that the Chief’s decision is “final and binding on the parties”. She contrasts the language of this

section with the language used in s 33 of the Act , which expressly gives the tribunal the authority to “reconsider any matter considered by it” if there is new evidence that should be considered. [ 95 ] Counsel for the Chief adds that the emphasis must be on the statutory intention which was to grant the Chief the power to exercise the gatekeeper role. On the question of whether the Director was functus officio once the application for review was made, she relies on the decision of Noel J in Phillips v Canada (Librarian and Archivist) , 2006 FC 1378 , [2007] 4 FCR 11.

Analysis [ 96 ] Dickson CJC, writing for the Supreme Court of Canada in Action Travail des Femmes at p 1134, commended to us an elegant, purposive analysis for human rights legislation: Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect.

We should not search for ways and means to minimize those rights and to enfeeble their proper impact. [ 97 ] Writing for the Court of Appeal of Alberta in Syncrude , Berger JA set out interpretative principles for the Act at para 11: 1. The words of the Act should be read in their “entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act and the intention of Parliament”. 2. That

interpretation should not produce absurd consequences, specifically those that “encourage litigation or unduly tax judicial resources”. 3. In addressing the temporal aspects of a right of appeal of a preliminary ruling, the Court should also be concerned with the timely expedition of complaints under the Act . [ 98 ] Neither the Director nor the Chief in their decisions on this complaint speak directly of the Commission’s

interpretation of the Act . However, their

interpretation is easily deduced from the actions and responses of each, as was the case in McLean , where Moldaver J concluded that though the Commission did not give reasons for its

interpretation of the

section in question, a reasonable basis for its decision was apparent to the reviewing Court (para 71). 1. Did the Director Unreasonably Fail to Decide the Settlement Issues? [ 99 ] In accordance with the decision of the Court of Appeal in Syncrude , I will attempt to view the disputed sections of the Act in their statutory context, in their grammatical and ordinary sense harmoniously with the scheme of the Act , its object, and the intention of the Legislature. [ 100 ] The

Preamble of the Act is the starting point for its construction. The

Preamble is an affirmation of equality principles. It concludes that “… it is fitting that these principles be affirmed by the Legislature of Alberta in an enactment whereby those equality rights and that diversity may be protected.” The Act is primacy legislation (s 1). Discrimination on the basis of enumerated grounds in certain areas of human endeavour is prohibited, but subject to the reasonable and justifiable defence (s 11). The members of the Commission are appointed by the Lieutenant Governor in Council, one of whom may be designated Chief of the Commission and Tribunals.

The Commission has certain statutory functions (ss 15-16), one being to forward the principles of equality, and another, to promote an understanding of, acceptance of and compliance with the Act . The Lieutenant Governor in Council may appoint a Director for purposes of the administration of the Act (s 18(1)). [ 101 ] Any person who has reasonable grounds to believe a person has contravened the Act may make a complaint to the Commission within one year of its occurrence (s 20).

The Director shall attempt to effect settlement by means of a conciliator or appointment of an investigator (s 21). [ 102 ] Section 22(1), the focus of the disputed

interpretation in this case, provides: 22(1) Notwithstanding

section 21, the director may at any time (

a) dismiss a complaint if the director considers that the complaint is without merit, (

b) discontinue the proceedings if the director is of the opinion that the complainant has refused to accept a proposed settlement that is fair and reasonable, or (

c) report to the Chief of the Commission and Tribunals that the parties are unable to settle the complaint. (emphasis added) [ 103 ] The first dispute centres on the phrase “at any time” in the opening words of s 22. As noted, the Director has authority over conciliation and investigation process under s 21. In my view, the plain meaning of the phrase “at any time” is that the Director may exercise his discretion to dismiss; or to discontinue because the complainant has refused a fair and reasonable settlement proposal; or to report to the Chief that the parties are unable to settle, at any time in the process from filing of the complaint until he has dealt with the complaint under s 22(1)(

a) or (

b) or (c). Once the Director has acted on the complaint under s 22, the power statutorily bequeathed upon him is spent. The Director may dismiss the complaint, and his role in the process ends. The Director may discontinue the proceedings if he is of the view that the complainant has refused a fair and reasonable settlement proposal, and his role in the process ends. Or, the

Director may report to the Chief that the parties are unable to settle, and his role in the process ends. [ 104 ] The second dispute concerns the use of the word “or” and whether it is conjunctive, as argued by the School Board, or disjunctive, as argued by the others. In my view, the phrases setting out the Director’s possible actions must be read disjunctively. This is the plain meaning of s 22, since each possible action would be taken in response to a distinct and different factual scenario.

This view is supported when seen in light of the discrete statutory consequences of each of the Director’s actions at the next step in the process under s 26 and 27 where the Chief’s authority is triggered by a request for review. [ 105 ] If the Director dismisses the complaint (s 22(1)(a)), then upon a request for review (s 26(1)), the Chief shall review the record (s 26(3)(a)) and decide whether the complaint should have been dismissed (s 26(3)(a)(i)). If he decides it should not have been dismissed, the Chief shall appoint a tribunal (s 27(1)(b)).

That is one route to tribunal. [ 106 ] If the Director discontinues the process because a fair and reasonable settlement proposal was not accepted (s 22(1)(b)) then the Chief shall review the record (s 26(3)(a)), and decide whether the proposed settlement was fair and reasonable (s 26(3)(b)(ii)). If it was not, the Chief shall appoint a tribunal (s 27(1)(b)).

That is the second route to tribunal. [ 107 ] There is a third route to tribunal: if the Director reports to the Chief that the parties are unable to settle the complaint (s 22(1) (c)), the Chief shall appoint a tribunal (s 27(1)(a)). [ 108 ] Sections 26 and 27 of the Act read: 26(1) The complainant may, not later than 30 days after receiving notice of dismissal of the complaint or notice of discontinuance under

section 22, by notice in writing to the Commission request a review of the director’s decision by the Chief of the Commission and Tribunals. …

(3) The Chief of the Commission and Tribunals shall (

a) review the record of the director’s decision and decide whether (

i) the complaint should have been dismissed, or (ii) the proposed settlement was fair and reasonable, as the case may be , and … 27(1) The Chief of the Commission and Tribunals shall appoint a human rights tribunal to deal with a complaint in the following circumstance s: (

a) where the Chief of the Commission and Tribunals receives a report from the director that the parties are unable to settle the complaint; (

b) where the Chief of the Commission and Tribunals or another member of the Commission decides under section 26(3) that the complaint should not have been dismissed or that the proposed settlement was not fair and reasonable. [ 109 ] The distinct powers of the Director under s 22 correlate with the disjunctive use of the word “or” in s 26(3) where the Chief may review either action taken by the Director, “as the case may be” (the concluding phrase of s 26(3)(a)). [ 110 ] Both sections contemplate the two distinct factual scenarios that require review by the Chief: the Director’s dismissal under s 22(1)(a), or his discontinuance for refusal of a fair settlement proposal under s 22(1)(b).

Where the Director takes the third action – to report that the parties are unable to settle under s 22(1)(c) – the Chief is not empowered to review that report. Where that occurs the Chief shall appoint a tribunal under s 27(1)(a). Each of the three possible actions open to the Director, depending on the nature of the case (“as the case may be”), leads to three distinct and precise statutory consequences. [ 111 ] This

interpretation of ss 22, 26 and 27 is also in accord with two other provisions of the Act . Under s 28, the Director is a party to the proceedings before the tribunal. It is absurd to suggest he still has power under s 22 to discontinue or dismiss at that point for, as counsel has argued, this would be a conflict of interest for the Director to have discretion to discontinue the complaint while he is a participant in the tribunal hearing. [ 112 ] Next, by virtue of s 35, the Chief’s decision on review under s 26(3)(

a) is final and binding – that is, his decision whether the complaint should have been dismissed or a proposed settlement was fair and reasonable. [ 113 ] To interpret the Act as permitting the complaint to circle back to the Director for discontinuance at the behest of the respondent “at any time” in the process, even after the Chief has made his decision, up until the end of tribunal hearing or even later, would gut the terms of the s 35 near privative clause.

It is also noteworthy that the other possible route to tribunal – upon the Director’s report that the parties are unable to settle – is not referenced in s 35, again confirming the Chief has no power of review over the Director’s decision concerning settlement, and that there are three distinct routes that flow from s 22. [ 114 ] It is also significant that under s 26, only the complainant has a right to seek appeal or review of the Director’s decisions taken under s 22, but the respondent does not. This supports the

interpretation of s 22(1)(

c) that the Director only has power to report to the Chief that the parties have not settled; not to decide a dispute as to whether or not a settlement has been achieved, as the School Board would have it. The intention of the legislature in s 26 was to give the right of appeal to the complainant where the Director has made an

adverse decision – dismissal or discontinuance.

If the School Board was correct that the Director could (or must) decide a dispute over whether a settlement was in fact achieved, one would expect a concomitant right for the complainant to seek review of an adverse decision as to whether there is a settlement, but there is no such right of review. [ 115 ] Once the Director acts under s 22, he is functus officio with respect to those possible actions; the complainant may apply for review under s 26 and engage the power statutorily bequeathed upon the Chief. [ 116 ] These sections provide a complete code for the authority of the Director and Chief to deal with a complaint and a complete code for final determination of the complaint, whether through conciliation, investigation, settlement, dismissal, discontinuance or tribunal hearing. [ 117 ] There is limited statutory authority for the Director.

It does not include the ability to second guess himself: as held in the Brochu case at para 24 “…once a tribunal – and the Chief Administrative Officer is a tribunal in this context – makes a decision, it cannot change its decision just because it ‘has changed its mind, made an error within jurisdiction or because there has been a change in circumstances’”. The Act does not include the power for the Director to reconsider. It does not include the power to determine whether a disputed settlement has indeed been reached, but only to find that there is no settlement, whereupon the Chief shall appoint a tribunal.

Naturally, if both parties agree there is settlement, the process ends, and typically this end of proceedings would be a term of the settlement itself. Where there is a dispute as to settlement, there is no settlement: the Director may so report that to the Chief under s 22 (1)(c); and the Chief shall appoint a tribunal under s 27(1)(a). [ 118 ] There is a compelling reason why the Act does not clothe the Director with the power to decide whether in fact or law, a putative settlement has been reached; as opposed to the power to decide that the parties have been unable to settle the complaint.

The Director does not hear evidence. The tribunal can decide questions of law, including whether the parties have achieved settlement. This is the conclusion of Rooke J (as he then was) in Chow at paras 88 and 94 . A tribunal may enquire into and decide whether a case is settled, just as arbitration boards and courts do, upon hearing evidence on the issue. [ 119 ] The

interpretation applied by the Director and the Chief was endorsed by the Honourable P. Chrumka sitting as tribunal Chair in McElheron v Murray’s Trucking Inc , 2011 AHRC 1 at para 26 . [ 120 ] In my view, the Director’s decision conveyed by letter of July 28, 2011, finding that the Act does not provide him with authority to reconsider his decision to dismiss the complaint, is a reasonable

interpretation of the Act and also the correct one. The Director effectively declared that he was functus officio . He was not empowered to re-visit his decision when asked to do so by the School Board in response to the request for review (July 21, 2011) or upon the Chief issuing his decision (September 20, 2012). The Act does not contemplate such a circumlocutory approach, nor is such an approach commonsensical. [ 121 ] In the result, in my view, the Director conducted himself according to a reasonable

interpretation of his authority under the Act , and even if there are two reasonable, alternative

interpretations of what that might be, his must prevail according to the decisions of the Supreme Court of Canada, most recently in Mclean . 2. Did the Chief Unreasonably Fail to Refer the Matter Back to the Director for the Settlement Issues to be Decided? [ 122 ] The powers of the Chief, too, are circumscribed by his mandate under the Act . He is empowered by s 26 of the Act to review the record of the Director’s decision and decide whether the complaint should have been dismissed or the proposed settlement was fair and reasonable, “as the case may be”.

As I have observed, this latter phrase, too, suggests that the routes to dismissal or tribunal are discrete paths. He shall decide either whether the Director was right to dismiss or whether the settlement proposal is fair and reasonable. If either decision is in favour of the complainant, the Chief is empowered by s 27, in mandatory terms, to appoint a tribunal. He also shall appoint a tribunal where the parties have been unable to settle. [ 123 ] In its response to the appeal, the School Board asked the Chief to order the Director to grant its alternative remedies: that the Chief order the Director to (

a) declare the complaint settled; or (

b) determine whether he should discontinue the proceedings because the complainant refused to accept a fair and reasonable settlement. The Chief did neither. He found instead that he only had the power to evaluate whether a proposed settlement was fair and reasonable on review of the Director’s decision.

He found further that whether or not there was a settlement was in dispute and may require viva voce evidence; a matter better placed before the tribunal. [ 124 ] The Chief exercised his powers within his statutory mandate, and did not unreasonably fail to order the Director to find that a fair and reasonable settlement proposal had been made or to find that the complaint had been settled.

The Chief acted in accord with the decision of this Court in Chow and with the decisions holding that once the Commission refers the matter to tribunal, it is functus officio : Canadian Museum at paras 58 – 60 ; Chandler at p 861. [ 125 ] In the result, in my view, the Chief conducted himself according to a reasonable

interpretation of his authority under the Act . Even if there were two reasonable, alternative

interpretations of what that might be, his must prevail as his expertise calls for deference, according to the decisions of the Supreme Court of Canada, most recently in Mclean . Conclusion [ 126 ] The

interpretation advanced by the School Board, that the Director is empowered under s 22 by the words “at any time” to exercise his discretion ad infinitum, does not make sense in the context of the work to be done by this administrative agency. Its work is to advance the principles of human rights, to accept complaints of alleged violations of human rights, to proceed to conciliation and/or investigation, and if necessary, to decision by the Director as to the fate of the complaint.

The Director has authority to dismiss or discontinue or report that there is no settlement. [ 127 ] The Chief has the power to review the first two decisions, and must appoint a tribunal in three circumstances: where he finds either the complaint should not have been dismissed or the proposed settlement was not fair and reasonable or where the Director reports

the parties are unable to settle. It is contrary to orderly administrative process to suggest that once the complaint is in the hands of theChief or at tribunal, the Director may yet decide that a fair settlement has been proposed and so proceedings must end; or that then,though he once decided otherwise, the complaint should be dismissed as without merit. This would be an absurd result. [128] The structure of the Act is artfully simple, consonant with its purpose, and designed for expeditious resolution of human rightscomplaints. If indeed there is a settlement between Mr.

Buterman and the School Board, the tribunal will so decide, upon receivingevidence and applying appropriate legal principles. D. Was the Chief’s Decision to Send the Matter to a Tribunal Reasonable? [129] The School Board argues that the Chief’s decision was not reasonable. The School Board agrees that the Chief applied thecorrect standard to review the Director’s decision, based on the decisions in Mis and Wong. However, the Board argues that the Chiefmade five distinct errors in the course making his ultimate decision that cumulatively render his decision unreasonable. 1.

The Chief was in error in finding that “…the standard used by the Director, ‘reasonable prospect ofsuccess,’ was too high and not in keeping with the jurisprudence”. Arguments of the parties [130] Counsel for the School Board argues that the Chief misstated the test employed by the Director when he wrote “…Iacknowledge that the standard used by the Director, “reasonable prospect of success,” was too high…”. According to the School Board,the Director used the standard, “no reasonable prospect of success”. [131] Counsel for Mr.

Buterman responds that the impugned reference is incomplete; it is an abbreviated phrase explained by thepreceding sentence where the Chief states the Director’s test to be “…no reasonable prospect that Mr. Buterman could be successfulbefore a human rights tribunal”.

Analysis [132] The Reasons for Decision of the Director state: While the Respondent’s refusal to continue to employ the Complainant is discriminatory, I am compelled to find that this decision waslawful and that there is no reasonable prospect that the Complainant could be successful before a human rights tribunal. [133] The Record of Decision of the Chief states: The Director in dismissing the Complaint without investigation, indicated that while the respondent’s refusal to continue to employ Mr.Buterman was discriminatory, the decision was lawful and there was no reasonable prospect that Mr.

Buterman could be successfulbefore a human rights tribunal. I acknowledge that the standard used by the Director, ‘reasonable prospect of success,’ was too high andnot in keeping with the jurisprudence in this area: Mis. After completing a review of the record of the Director’s decision, and the newsubmissions by the parties, and applying the appropriate reasonable basis in the evidence standard as enunciated in Mis and Wong, I amoverturning the Director’s decision to dismiss the Complaint. [134] This argument is an exercise in mincing words.

The impugned phrase, “reasonable prospect of success”, is a shortened versionof the phrase previously used by the Chief to describe the standard employed by the Director, which was “no reasonable prospect ofsuccess”. [135] As I have stated above, and as has been conceded by the School Board, the Chief correctly stated the test to apply in carryingout his review function under s 26 of the Act: whether there is a reasonable basis in the evidence for proceeding to the next stage.

TheChief notes, based on the authorities, that the “threshold is low and as gatekeeper I am given a wide latitude in performing the screeningfunction”, and that it is not his function to determine whether the complaint is made out (p 4). He found that the standard used by theDirector, that the complaint had no reasonable prospect of success, was too high. Instead, the Chief applied the standard set by theAlberta Court of Appeal in Mis and Wong, and found a reasonable basis in the evidence to proceed to the next stage, concluding that theDirector’s decision must be overturned.

In my view, the Chief’s approach on this point is not in error, but rather eminently reasonable. 2. The Chief was in error in finding that the School Board is a “public school board”. Arguments of the parties [136] Counsel for the School Board argues that the legislative framework and the case of Sturgeon School Division No. 24 v Alberta(2000), (AB KB), 272 AR 190 demonstrate that the Chief is wrong to say this is a public school board. Rather, theBoard of Trustees o

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