Shodunke v Alberta (Human Rights Commission), 2023 ABKB 260

Court of King’s Bench of Alberta Citation: Shodunke v Alberta (Human Rights Commission), 2023 ABKB 260 Date: 20230502 Docket: 2213 00121 Registry: Fort McMurray Between: Olufemi Shodunke Applicant - and - Paladin Security Group Ltd and the Alberta Human Rights Commission Respondents Corrected judgment: A corrigendum was issued on May 2, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice J.T. Eamon _______________________________________________________ I Introduction

[1] Mr Shodunke applied for judicial review of two decisions of a delegate of the Chief of the Commission and Tribunals (the“Commissioner”) upholding the Director’s decision to dismiss Mr Shodunke’s human rights complaints against Paladin Security GroupLtd.

The Commissioner’s decision is reported as Shodunke v Paladin Security Group Ltd, 2022 AHRC 27 . [2] The Respondent had employed the Applicant as a part-time security guard in Fort McMurray. [3] The Applicant’s first complaint asserted that the Respondent dismissed him from his employment in breach of the AlbertaHuman Rights Act, RSA 2000, c A-25.5 (the “Act”) on September 7, 2018. [4] The Respondent was scheduled to work a shift as a security guard at a retail mall in Fort McMurray on September 7, 2018.He had accepted this shift at a meeting with a representative of the Respondent the preceding day but learned later that day of an eventthat required him to observe religious rites and therefore he was unable to work the shift due to religious belief.

He said that the passingof an ancestral chief required the Applicant, as a traditional chief, to observe certain religious rites. [5] On September 7, 2018 he met with two representatives of the Respondent shortly before his shift was scheduled tocommence. The Applicant asserts he disclosed his need for religious accommodation and sought to be excused from the shift, andPaladin responded by terminating his employment. [6] The Applicant’s second complaint asserted that a security guard working for the Respondent removed him from the publicarea of the same shopping mall on November 16, 2018.

The Applicant asserted that the Respondent was acting in retaliation for his firstcomplaint and discriminated against him on the basis of race, colour and place of origin. [7] The Respondent denied the complaints. [8] The Respondent explained that the Applicant was employed as a part time security guard on a probationary basis. It assertedthat it terminated him on September 7, 2018 due to his employment performance – behaviour toward management, not working theminimum number of shifts per pay period, and inability to contact him to

schedule shifts. It asserted the Applicant did not inform it of hisreligious beliefs, status as a traditional chief, or any need to accommodate him to observe religious rites. [9] As to the second complaint, the Respondent asserted that its security guard was responding to a complaint by an employee ofa mobile phone kiosk in the mall that the Applicant made unwanted personal advances toward her.

Further, neither the guard or theRespondent were aware of the first complaint, and the guard was not aware that the Applicant was ever an employee of the Respondentor that the Applicant’s employment had been terminated. [10] The Director summarily dismissed the complaints.

The Applicant sought review of the dismissals by the Commissioner undersection 26 of the Act. [11] The Commissioner found there was no reasonable basis to refer the complaints to a hearing. [12] As to the first complaint, the Commissioner found there was insufficient information on the record to establish a violation ofthe Act because they agreed with the Respondent that the Applicant did not disclose his religious belief or his need for accommodation. [13] As to the second complaint, the Commissioner found that the evidence did not support the existence of a link between theguard’s response and any actual or potential human rights complaint.

Further, the evidence did not support that the Applicant’s religiousbeliefs, race, colour, and place of origin were at least a factor in this event. The decision of the guard was based on the guard’s sincerebelief that the kiosk employee had experienced unwanted personal advances. [14] The Applicant submits that the Commissioner’s decision was unreasonable because the Commissioner overlooked issues,made legal errors, failed to seek additional evidence from the Respondent, and resolved evidentiary conflicts on the fundamental issueswithout a Tribunal hearing and opportunity for cross-examination.

Further, the Commissioner was biased against the Applicant andfavoured the Respondent. [15] The Respondent submits the Commissioner’s decisions were reasonable. The Commissioner was entitled to considercredibility of the evidence in assessing whether the complaint should be screened out at this stage of the process and did soappropriately. Further, the bias allegations have no foundation or merit. II Legislative and process framework [16] Any person who has reasonable grounds to believe that the Act has been contravened may make a complaint to theCommission (Act, s 20(1)).

Where the Commission receives a complaint, the Director shall, as soon as is reasonably possible, attempt toeffect a settlement of the complaint by means of a conciliator or through the appointment of a person to investigate the complaint (Act, s21(1)). The investigator has a variety of powers under s 23 of the Act to obtain evidence. The Director may at any time dismiss acomplaint in certain cases including if the Director considers that the complaint is without merit (or under recent amendments, has noreasonable prospect of success) (Act, s 22(1)(a)(

i) and (iii)), including after receipt of an investigation report. In such event, the complaintwould not be referred to a hearing for resolution by a human rights Tribunal under

section 27 of the Act. [17] Where the Director dismisses a complaint, the complainant may request a review of the decision by the Chief of theCommission and Tribunals (Act, s 26(1)). Upon receiving a request for review, the Chief of the Commission and Tribunals, or his or herdelegate, must review the record of the Director’s decision and decide whether the complaint should have been dismissed (Act, ss 26(3)and 26(4)). [18] The Commissioner’s review process permits the parties to provide additional evidence and submissions. However, theCommissioner does not conduct further investigation. The Commissioner’s options are to dismiss the review or allow the review and

send the complaint to a Tribunal hearing. Counsel for the Commissioner advised during the oral hearing of this judicial review that if itappears to the Commissioner that the investigation was deficient in not obtaining significant records, the Commissioner has discretion tosend the matter on to a Tribunal hearing where that could be addressed. [19] The Director and Chief of the Commission and Tribunals play a gatekeeping or screening role under s 26 of the Act. In Mis vAlberta Human Rights Commission, 2001 ABCA 212 the Court described this role: [7] In Grover v.

Alberta Human Rights Commission, [1999] ABCA 240, this Court applied the Supreme Court of Canada’sinterpretation of the gatekeeper’s role in Cooper v. Canadian Human Rights Commission, (SCC), [1996] 3 S.C.R. 854at 891 and Syndicat des employés de production du Québec et de l’Acadia v. Canada (Canadian Human Rights Commission), (SCC), [1989] 2 S.C.R. 879 (“S.E.P.Q.A.”) to the role carried out by the Director in s. 20(1)(

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

The question the Director or Chief Commissionermust ask in deciding whether a complaint is without merit is whether there is a reasonable basis in the evidence for proceeding to thenext stage. [9] The gatekeeper can be expected to apply his or her experience and common sense in evaluating the information in theinvestigator’s report. The threshold assessment of merit is low and the gatekeeper (here, the Chief Commissioner) is given wide latitudein performing the screening function.

The courts are not to lightly interfere. [20] In the present case, Mr Shodunke’s evidence provided to the Commission seriously conflicts with the evidence provided byPaladin on the fundamental issue whether the Applicant disclosed his need for religious accommodation during the meeting onSeptember 7, 2018 where the Applicant was terminated.

Mr Shodunke’s primary argument is that the Commissioner ought to havereferred the matter to a hearing Tribunal to resolve the credibility conflict. [21] In respect of this submission, Alberta law is clear that not all witness credibility issues would necessarily be referred to ahearing Tribunal (Economic Development Edmonton v Wong, 2005 ABCA 278 at paras 16-20; Callan v Suncor Inc, 2006 ABCA 15 atparas 14-16). As discussed below, these appellate authorities impose limits on such assessments at the screening stage. III Standard of review (

a) Merits review of the decisions [22] The standard of review of the merits of the decisions is reasonableness, under the framework in Canada (Minister ofCitizenship and Immigration) v Vavilov, 2019 SCC 65. See for example, Wojtasiewicz v Alberta (Human Rights Commission), 2020ABCA 23 at para 9; Al-Ghamdi v Peace Country Health Region, 2017 ABCA 31 at para 10; Callan at para 17. Human rights tribunalsare owed substantial deference (Stewart v Elk Valley Coal Corp, 2017 SCC 30 at para 20), including decisions to dismiss complaintsrather than refer them to a hearing (Wojtasiewicz at para 11-12; Mis at para 9). (

b) Failure to require the Respondent to submit specific records [23] The Applicant submitted the failure to require the Respondent to provide specific records compromised the reasonableness ofthe decision.

Although Alberta case law precedents have considered allegations of deficient investigation in the framework of proceduralfairness obligations, I agree with the Applicant that in appropriate circumstances, a decision that was made on a seriously deficientrecord could be found unreasonable on a merits review. [24] The scope of fairness in the investigative process was discussed by Topolniski J in Al-Ghamdi v Peace Country HealthRegion, 2015 ABQB 155, app dism 2017 ABCA 31, as follows: [63] Cases decided under federal human rights law state that a decision to dismiss a complaint made in reliance upon a deficientinvestigation will itself be deficient as the Commissioner would not be in possession of sufficient relevant information upon which to[sic] could properly exercise his discretion: El-Helou v Canada (Courts Administration Service), 2012 FC 1111 at para 92 (El-Helou).That logic is equally applicable to the AHRC and the Chief Commissioner. [64] The onus of proving a lack of procedural unfairness rests with Dr.

Al-Ghamdi: Lethbridge (City) v Daisley, 2000 ABCA 79 atpara 22, application for leave to appeal refused [2000] SCCA 214; Slattery v Canada (Human Rights Commission), (FC), [1994] 2 FC 574 (TD), aff’d (1996), 205 NR 383 (FCA) (Slattery). [65] In Baker [v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817], the SupremeCourt of Canada describes the duty of fairness as this (at para 22): ... an administrative decision affecting an individual should be made through a fair, impartial and open process which allows theindividual the opportunity to present his or her views and evidence fully, and which is appropriate to the statutory, institutional and socialcontext of the decision.

This also applies to decisions of the AHRC: Chartrand at para 19.

[66] Dr. Al-Ghamdi’s complaints are focused on the investigation. The Investigator controls her own procedure.

Her investigationcan only be impugned if it was clearly deficient, an example of which is failing to investigate obviously crucial evidence: Chartrand [ vAlberta (Human Rights and Citizenship Commission), 2008 ABQB 207] at para 14 citing Hamilton v Alberta (Human Rights andCitizenship Commission), (2002) 314 AR 340, 2002 ABQB 428; Murray v Canada (Canadian Human Rights Commission), 2002 FCT699, aff’d 2003 FCA 22 (Murray); Aziz v Telesat Canada (1995), I 03 FTR 223; Miller v Canada (Canadian Human RightsCommission), (1996), (FC), 112 FTR 195 (TD); Bourgeois v Canadian Imperial Bank of Commerce, (2000) 96ACWS (3d) 450 (FCTD); Syndicate des employes. [67] In assessing the thoroughness of an investigation in accordance with the rules of procedural fairness, the Court must beattentive to all of the interests at play: Dr.

Al-Ghamdi’s and the PCHR’s interest in procedural fairness, and the AHRC’s interest inmaintaining “a workable and administratively effective system”: Slattery at p 600. [68] Procedural fairness is met at the investigation and decision stage (whether to refer a matter to a full hearing) if thecomplainant receives the investigator's report, has the opportunity to respond, and the response is considered before the decision is made:Murray. ... [70] The Investigator’s choice not to interview certain witnesses proposed by Dr.

Al-Ghamdi, like nurses who allegedly hadconflicts with him and certain visible minority doctors, does not render the process unfair. As previously noted, the Investigator controlsher process. She is not required to question every potential witness and turn over every stone. The key is that the Investigator must notoverlook crucial evidence. ... [72] In any event, as Binder J ruled in Chartrand, had I found any procedural unfairness at the investigation stage, which I do not,the opportunity for Dr.

Al-Ghamdi to fill any gaps he perceived in the Investigator’s report would have cured such deficiency (at para45). [25] The requirement that the investigation be “clearly deficient” respects the Alberta Court of Appeal’s observation in Pelech vAlberta (Law Enforcement Review Board), 2010 ABCA 400 at para 40 in connection with an investigation by the Chief of Police: Not every complaint justifies an investigation that exhausts every possible lead, and the Chief is entitled to allocate his limited resourcesin a reasonable way.

Simply because the investigation failed to turn over every stone does not make it unreasonable. Neither thecomplainant nor the Board are entitled to take over every investigation; the Chief is the one granted jurisdiction to investigatecomplaints. [26] Consequently, a decision maker’s reliance on a clearly deficient investigation could undermine a decision that otherwiseappears reasonable. However, the Commission is entitled to allocate its limited investigative resources in a reasonable way andcomplainants cannot expect that all leads be exhausted before the complaint is assessed under

section 26 of the Act. (

c) Bias issues [27] The Supreme Court of Canada describes the test for finding reasonable apprehension of bias in Committee for Justice andLiberty v National Energy Board, (SCC), [1978] 1 SCR 369 at p 394 as follows: [T]hat test is what would an informed person, viewing the matter realistically and practically--and having thought the matter through-conclude.

Would he think that it is more likely than not that [the decision-maker], whether or consciously or unconsciously, would notdecide fairly. [28] This test has been repeated and applied for decades, as is apparent from the more recent authorities set out in cases such asCartwright v Rocky View County Subdivision and Development Appeal Board, 2020 ABCA 408 at para 19; Yukon FrancophoneSchool Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 , [2015] 2 SCR 282.

IV Assessment of reasonableness [29] The Commissioner has wide latitude in deciding whether the complaint should have been dismissed and the Courts must notlightly interfere (Mis at para 9). [30] In applying the reasonableness standard, a reviewing Court must consider both whether the decision is internally coherent andjustified in light of the legal and factual constraints that bear on the decision. In Vavilov, the Court observed: [99] A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determinewhether the decision as a whole is reasonable.

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

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

on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable. [101] What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. There is however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other.

Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. [ 31 ] Further, a reviewing Court must consider the tribunal’s formal reasons in light of the record and with due sensitivity to the administrative regime in which they were given.

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

A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken ... or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point... [Citations deleted; underlining added]. [ 32 ] As to relevant factual and legal constraints in which the decision must be assessed, the Court in Vavilov stated: [106] It is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case.

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

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

They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached. [ 33 ] As to facts and evidence, “absent exceptional circumstances, a reviewing court will not interfere with its factual findings” ( Vavilov at para 125 ) and the reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker” ( ibid ).

The reasonableness of a decision may be jeopardized “where the decision maker has fundamentally misapprehended or failed to account for the evidence before it” (ibid at para 104). [ 34 ] The Court must also consider the parties’ submissions to the decision maker. Courts do not expect decision makers to respond to every argument, but “a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it” ( Vavilov at para 128 ).

V The record for the judicial review [ 35 ] During the oral hearing of the judicial review, the Applicant sought to have the Court review three additional records that were either not before the Commission or, according to the Applicant, omitted from the Certified Record delivered by the Commission for the judicial review. [ 36 ] These records are: (

a) The termination letter read to the Applicant at the September 7, 2018 meeting with the Respondent. (

b) A string of email communications between Applicant and Respondent that include an email where the Applicant provided his updated phone number to the Respondent. (

c) A letter from the Commissioner or staff in the review process extending time for the Respondent to make submissions. [ 37 ] Oral hearings of judicial reviews are scheduled months in advance and adjourning them can incur significant delay.

Consequently, I directed that I would hear the parties’ submissions on the judicial review including whatever they had to say about these records; the records would be provided following the review so that I could consider their admissibility and effect; the parties would have an opportunity to make submissions on admissibility or effect of these records if wanted; and, I would consider these issues in the course of my deliberations.

There was some misunderstanding by the Respondent whether the Court would unilaterally arrange a supplemental hearing or whether the Respondent should arrange a hearing, but ultimately in late January 2023 the Clerk’s Office was informed that no further hearing would be required. I have reviewed the records provided after the oral hearing and concluded that no additional submissions or a supplemental hearing are necessary. [ 38 ] The application I am considering is for judicial review.

The Applicant also characterized the proceeding as an appeal in his formal Application, but there is no appeal from a decision under

section 26 of the Act . Therefore, the right to add evidence to the record for the review is very limited – even more circumscribed than for appeals ( Alberta College of Pharmacists v Sobeys West Inc , 2017 ABCA 306 at para 67 ). [ 39 ] The evidence before the Director and Commissioner did not contain the letter of dismissal presented to the Applicant during the meeting with representatives of the Respondent on September 7, 2018. [ 40 ] The Applicant did not have a copy of the letter to submit to the Commission. The Applicant stated at the oral hearing of the review that the crux of the matter was his dismissal and submitted the Commissioner failed in its duty to request the letter from the

Respondent. The Respondent provided a copy of the letter to the Clerk’s Office following the oral hearing. [ 41 ] The letter is not admissible on the merits review as additional evidence to question the wisdom of the decision ( Alberta College of Pharmacists v Sobeys West at para 67). [ 42 ] However, the letter may be admitted in support of an argument that the Commission breached procedural fairness obligations. In such cases, a party may provide evidence that it asserts could have been placed before the decision maker had it met applicable procedural fairness obligations.

See, for example, Walton v Alberta (Securities Commission) , 2014 ABCA 273 at paras 145-146 . [ 43 ] In the present case, the Applicant asserts the decisions were unreasonable. His Application form does not clearly assert procedural fairness review, but his brief asserts such review. He argued that the Commission failed in its duty to require the Respondent to provide the letter. The Respondent had notice of the argument and therefore, an opportunity to respond. Consequently, I admit this letter into evidence in relation to the Applicant’s argument that the investigation was deficient, so he was treated unfairly.

The Clerks will be provided a copy and directed to mark it as Exhibit 1 to the review. [ 44 ] The second record in issue is a letter from the Commissioner’s Office extending time for the Respondent to make submissions on the Commissioner’s review. The Applicant asserts that both the Director and Commissioner permitted the Respondent to make submissions after the time to do so expired. The Applicant said that the Director’s letter extending time was in the Certified Record but the Commissioner’s letter was not in the record.

The Applicant sought to include the second letter to prove that the Commissioner showed favouritism to the Respondent and was biased against the Applicant. He said he did not have this letter with him at the oral hearing but could provide it later. [ 45 ] Relevant evidence of bias or reasonable apprehension of bias is admissible, although the evidence may ultimately be found insufficient to prove the allegation or the allegation might be refused because not raised in a timely way with the decision maker. [ 46 ] However, this record need not be further pursued.

The Applicant advised in a communication to the Clerk’s Office following the hearing, that he was mistaken in thinking a second letter allowing extension of time was issued. [ 47 ] The third record in issue is an email thread between the Applicant and Respondent that included a June 11, 2018 email advising of his change of contact particulars. The emails are quoted in the Applicant’s submissions to the Commissioner. He said he provided a copy of the emails as an attachment to his submissions.

He submits these records, particularly the June 18 th email, are relevant to refuting the Respondent’s submissions that it had problems contacting the Applicant to

schedule shifts, leading to its decision to terminate the Applicant. [ 48 ] Commission counsel advised, in a letter to the Clerk’s Office following the oral hearing, that it searched its files for a copy of the June 18 th email and did not locate a copy. [ 49 ] As mentioned, the Applicant transcribed the email in his submission to the Commission. There is nothing in the Certified Record to indicate that the Commission rejected the authenticity of the email because a copy was not appended.

I reviewed a copy of the email (Mr Shodunke, in correspondence to the Clerk’s Office after the oral hearing and further to my desk endorsement, directed the Court to his affidavit filed March 21, 2022 where the email is reproduced as Exhibit “A”).

The email quoted in the Applicant’s materials is a reproduction of the email in question. [ 50 ] Rather than try to adjudicate whether the Commission received a printed copy of the email or only the cut and pasted copy in the Applicant’s written submissions, I will proceed on the basis that the Commissioner was aware of the email from the Applicant’s written submissions, there is no evidence that they questioned its authenticity, and therefore they were obliged to consider it in their deliberations. VI First complaint (

a) The issue under review [ 51 ] On September 6, 2018 the Applicant attended the Respondent’s office to seek assignments of shifts. The Respondent observed that the Applicant had been difficult to reach and had been unable to reach him for a number of weeks. The Applicant provided an explanation, the Respondent reminded him of his obligations to communicate, and the Respondent assigned him shifts for September 6 and 7. The Applicant worked September 6.

As mentioned earlier, the Applicant then attended the Respondent’s office on September 7 and asked to be excused from the shift he was to work later that day. [ 52 ] The key issue of fact that arose from the facts was what the Applicant said or did not say in making his request to be excused from work on September 7, 2018.

Did he disclose his need for religious accommodation or not? [ 53 ] On the judicial review, both sides presented wider issues that are unnecessary to decide. [ 54 ] The Respondent submitted that even if the Applicant had attended on the Respondent’s representatives on September 7, 2018 and informed them of the matter that necessitated him to be excused from upcoming shifts to observe religious rites and the Respondent then terminated him, the Commissioner may nevertheless have found the evidence insufficient and screened out the complaint.

For example, the Commissioner may have reasoned that, in any event, the need for accommodation was not a factor in the termination. [ 55 ] Mr Shodunke made submission about questions of law under the Charter , that the Respondent (a private entity) breached his Charter rights, and concerning the legal requirements of accommodation.

[56] The Commissioner did not decide this case on the wider issues, though she correctly observed that the Charter does not applyto Paladin (Commissioner’s reasons at para 21). The Applicant’s complaint was premised on his disclosing his need for religiousaccommodation to the Respondent. In this context, the Commissioner observed that “What is not clear from the record is that thesepersonal characteristics were at least a factor in the said adverse treatment”.

The Commissioner then proceeded to consider theevidentiary issue: whether the Applicant’s evidence that he disclosed the need for accommodation passed the screening test: [26] For the reasons that follow, I do not find a reasonable basis to refer the Complaints to a hearing. [27] On a

section 26 request for review, whether there is a reasonable basis in the evidence for proceeding to a hearing before aTribunal depends on all the circumstances. The mere fact that there is an issue of credibility will not, in itself, lead to a finding that thematter should proceed to a hearing.[6] It may not be appropriate to refer the complaint for a full hearing where there is insufficientinformation in the record to establish a violation of the Act.

In this case, there is insufficient information in the record for thecomplainant to make out a case that the respondent violated the complainant’s religious beliefs under the Act. [28] Here, given the lack of corroborating witnesses that the complainant told the respondent that he required accommodation as aresult of his religious belief, the statement by the respondent’s representative that the complainant never told the respondent that herequired accommodation as a result of his religious belief, a statement by another of the respondent’s representative that the complainantonly said he couldn’t work the shifts because he had to go to Toronto, and the fact the complainant never raised his religious belief at thetime of his employment, I agree with the respondent’s claim that the complainant did not disclose his religious belief and his need foraccommodation. [6] Economic Development v Wong, 2005 ABCA 278 at para 17 (Commissioner’s reasons at paras 26 – 28 and footnote 6). [57] If the Commissioner came to an unreasonable conclusion on the issue whether Mr Shodunke disclosed his need foraccommodation to the Respondent, then the decision should be quashed and returned to the Commission.

It would be open to theCommission to consider other issues raised by either party in the course of reconsidering the matter. [58] Mr Shodunke submitted in the judicial review, an alternative argument that he did not make to the Commission.

He submittedthat even if he did not disclose his need for religious accommodation, discrimination may nevertheless have occurred (citing Forbes vValard Construction LP (Edmonton), 2021 AHRC 36 at paras 21 - 22). [59] It might not be appropriate to consider this issue for the first time on judicial review: courts should respect the legislativechoice of the administrative decision makers as the first instance decision maker by giving them the opportunity to deal with the issuefirst and to make their views known; the Court should be especially careful not to overlook the loss of the benefit of the decision maker’sviews inherent in allowing the issue to be raised; the Court should consider prejudice to the Respondent in considering the matter onjudicial review without a satisfactory opportunity to provide evidence to the administrative decision maker; the decision maker’s recordmay be insufficient to adjudicate the issue because the issue was not raised (Alberta (Information and Privacy Commissioner) v AlbertaTeachers' Association, 2011 SCC 61 , [2011] 3 SCR 654 at paras 24 - 28). [60] The issue in Forbes was “whether the respondent knew, or ought to have known the complainant’s disability was a factor inthe conduct it considered culpable, and whether in the circumstances it took the complainant’s disability into proper account whendeciding its response to the impugned conduct.” (Forbes at para 20). [61] The Applicant’s alternative argument to the same effect as Forbes should not be considered on the judicial review. [62] The basis of the alternative argument is that the required accommodation arose from matters unknown to the Respondent –the event that triggered the need for the Applicant to observe religious rites (the passing of the ancestral chief) and the reason this eventwas significant to the Applicant (his status as a traditional chief and the obligations associated with that status).

The Commissioner notedthat the Applicant had not previously disclosed his status as a traditional chief or that he needed accommodation for religious belief. [63] Whether a complaint based on the Forbes principle satisfies the screening test should be addressed in the first instance by theCommission so that the Court has the benefit of its expertise and informed views and the Court can respect the role of the Commission asthe first instance decision maker as determined by the Legislature.

None of the parties demonstrated how the Commission and Tribunalhave applied the principle in Forbes to the matter of religious accommodation. The Court should not step into their role and precludetheir application of expertise by deciding the question when raised for the first time in judicial review. [64] It is also unclear that the Commissioner was not mindful of the potential application of the Forbes principle.

TheCommissioner specifically observed that the Respondent had not received any information about the Applicant’s status as a traditional chief or potential need for accommodation before the September 7th meeting (Commissioner’s reasons at para 29). [65] Consequently, if Mr Shodunke wished to pursue a materially different basis for the first complaint, he should have made thatcomplaint to the Commission. I decline to consider it for the first time on judicial review.

Whether it can be addressed in the event thedecision is quashed is a matter for the Commission to decide in view of the statutory time limits in which to submit complaints. (

b) The reasonableness of the decision [66] In the present case, the Commissioner recognized that they may consider credibility considerations in assessing evidence atthe screening level but did not articulate the standard for assessing the veracity of a complaint or explicitly recognize limitations oncredibility matters at the pre-hearing stage. [67] It is well established that in conducting the screening function, the decision maker may consider matters of credibility and fact

and to evaluate the quality of the evidence. [68] However, there are limits to such an assessment. In Wong, the Court of Appeal observed: [20] Members of the public would find it curious and, I suggest, unacceptable that at the investigative stage the chiefcommissioner is barred from assessing the quality of the evidence gathered by the investigator. The effect of such a proposition, in agiven case, would be to deny to a hearing panel the very functions that the legislation confers upon it, i.e. to decide credibility.

It doesnot follow, as counsel for the Appellant contends, that all credibility issues would necessarily reach the panel stage. A broad, liberalinterpretation of the role of the chief commissioner means that the office holder would screen complaints in keeping with his gatekeeperfunction, mindful that a hearing panel is charged with the ability and, indeed, the responsibility to assess credibility and weigh theevidence. At the investigative stage, independent, confirming evidence will often resolve those cases sometimes described as “classiccredibility contests”.

If such evidence gathered at the investigative stage points clearly to the veracity of one account of the facts asopposed to another, the “double-screen” of investigator and chief commissioner will satisfy the legislative purpose. [69] Similarly, in Callan, the Court observed: [15] The Respondent argues that while the Chief Commissioner may be permitted to “assess” the evidence, the ChiefCommissioner is not entitled to “adjudicate”. This is a distinction which is not of assistance in defining the role of the ChiefCommissioner.

The parties are all in agreement that the standard of review of the decision of the Chief Commissioner is reasonablenesssimpliciter. When the Chief Commissioner decides to send or not send a complaint to a human rights panel, the standard of review iswhether his decision to do so is reasonable or not. Therefore, if the referral decision of the Chief Commissioner stands up to a somewhatprobing analysis, the reviewing court should not intervene: Law Society of New Brunswick v. Ryan, 2003 SCC 20 , [2003] 1S.C.R. 247, at para. 55.

If the Chief Commissioner is faced with a complaint that is bristling with issues of credibility and conflicts onthe facts, it will in many cases be unreasonable for him not to refer the matter to a human rights panel. However, his decision should beassessed in light of its reasonableness, not based on any perceived distinction between assessing evidence and adjudicating. [16] If the Chief Commissioner were to consider only the evidence of one party or the other, that might well make the resultingdecision unreasonable.

On the other hand, mere conflicts in the evidence of the parties, or issues of credibility, do not always require afull hearing. Sometimes in the context of all the evidence, particular areas of conflict may lose their apparent importance. For example,here there is a conflict over the contents and tone of a telephone call between the Respondent and her supervisor, which might suggest ahearing is required. However, the next day the supervisor wrote to the Respondent setting out Suncor’s position.

Whether this is taken asa corroboration of Suncor’s version of the telephone call, or a capitulation or reconsideration by Suncor, the Chief Commissioner wouldbe entitled to conclude that the apparent conflict no longer forced a full hearing. In the end the standard of review is reasonableness ofthe ultimate decision, not whether the Chief Commissioner has “adjudicated” or made “findings on credibility”. (Underlining added) [70] When should a case be referred to hearing where evidence conflicts? The Applicant cited many Commission cases where theCommissioner decided to refer conflicting evidence to a Tribunal.

Among these is the Zeilke case which, with some other Commissiondecisions under

section 26, have articulated (citing Wong) a basis for assessing cases where the evidence conflicts: ... in some cases the information gathered does not point “clearly to the veracity of one account of the facts as opposed to another,” and inthose cases the Chief should refer the complaint to a full hearing, subject to other relevant considerations such as proportionality and theobjects of the Act.

A.D. v Alberta Health Services, 2020 AHRC 49 at para 44; see also Zielke v Red Deer Collision & Repair Inc., 2021 AHRC 65 at para 19; Robert v National Process Equipment Inc., 2021 AHRC 133 at para 11; C.K. v College of Physicians andSurgeons of Alberta, 2021 AHRC 165 at para 9 – 11. [71] It is not apparent from the parties’ submissions whether this line of authority is uniform among the delegates exercising theCommissioner’s decision making power under

section 26. However, those cases articulate the appropriate standard, considering theCourt of Appeal’s comments in Wong and Callan of the limitations on a credibility assessment during the screening stage. In my view,this is a binding standard or, in the words of Vavilov, a legal constraint determined by previous case law. [72] Examples where the information might clearly point to the veracity of one account as opposed to another include: (

a) the facts asserted, even if believed, do not meet the legal test for breach of the Act; (

b) the assertions are contrary to records with objective reliability; (

a) the assertions are so implausible that they are not reasonably capable of belief; (

b) the assertions are inferences that are speculation or do not reasonably follow from the proved factual underpinnings; (

c) the assertions amount to wide allegations of misconduct that are unsupported by any particulars or confirmingdocumentation. [73] In contrast, in some discrimination cases the only evidence a complainant might have is their word as to what occurred in aspecific meeting or interaction. Evidence on oath or affirmation is routinely accepted in countless cases without the need ofcorroboration.

If their version is reasonably capable of belief when compared to the record, I do not consider that it is, without more, a“bald assertion” that can be rejected as unsupported. [74] In view of these considerations, at the pre-hearing stage a decision maker ought to describe, having regard to the legislativepurpose of the screening function, why they chose to outright reject the Complainant’s evidence as in the present case.

[75] In coming to these conclusions, I am mindful of the Respondent’s reliance on Cunin v Alberta (Human Rights Commission),2019 ABQB 578 at para 36 for the proposition that the Commissioner was entitled to assess competing information whereaccounts of a particular incident differed. Cunin did not address the scope of credibility assessment in a classic credibility contest on akey issue.

Rather, the issues were whether the facts supported that the employer had not gone far enough to accommodate thecomplainant, or whether the Commissioner should have sent assertions of retaliation based on inferences to a hearing. [76] In light of the foregoing, the lack of corroboration of the Applicant’s version and the Respondent having two witnesses andsome supporting evidence for their statements, is not an adequate explanation at this stage or a basis to screen out a complaint.

Thismerely describes a classic credibility contest, for determination by a Tribunal. [77] It is also plausible that the Applicant did disclose his need for accommodation at the September 7th meeting. He supplieddocumentary evidence of the passing of the ancestral chief, the scheduled traditional rites and burial on September 7 and 8, 2018, and theApplicant’s status as a traditional chief. The Commissioner did not take issue with that evidence. It supports that these events were takingplace around the September 7th meeting.

He may well have disclosed them and sought to be excused from work. [78] The Commissioner did not explicitly find that the Applicant’s evidence was implausible or not reasonably capable of belief.They simply preferred one version over the other because one was supported by some evidence and the other was not. [79] If it were open to the Commissioner to make a wide ranging credibility assessment outside of a Tribunal hearing, then I wouldnot find the Commissioner’s conclusion unreasonable. Weighing evidence would be for the Commissioner. I do not find the Applicant’sarguments to the contrary persuasive.

However, as stated, the Court of Appeal did not contemplate such a wide credibility assessment atthe screening stage.

Absent a finding that the information points clearly to the veracity of the Respondent’s version, the only reasonablecourse is to send the matter to a Tribunal hearing where the wider credibility assessment can be made. [80] During the oral hearing before me, the Respondent noted that the Complainant’s allegations about the meeting were vagueand sought to impugn the Applicant’s credibility by referring to the tone and content of his communications with the Commission thatincluded accusing witnesses and decision makers of bias, racism, discrimination, and lying. [81] The Commissioner did not explicitly reject the Applicant’s evidence on these considerations.

Absent such reasons, I amunable to determine whether they had any bearing on the Commissioner’s decision to prefer the Respondent’s witnesses. While the Courtmay have regard to the record in deciding if the decision was reasonable or supplement the reasons, I am not obliged to find that adecision maker took such things into account on the key issue where they gave specific reasons that omit such considerations.

Somelitigants hold a negative opinion of decision makers for various reasons or emotion finds its way into their submissions, nevertheless theirevidence of the historical events might be given weight. [82] Consequently I find the decision unreasonable because it does not comply with the legal constraint on credibility assessmentsat the screening stage.

The Commissioner did not find that the information clearly pointed to the veracity of the Respondent’s versionand conducted a wider ranging credibility assessment that is properly the role of the Tribunals. [83] I have arrived at my conclusions without reference to the termination letter, because there is no basis to find that theinvestigation was obviously deficient, that the Applicant was treated unfairly, or that the Commissioner should have considered if therewas a gap in the evidence arising from the absence of the termination letter. [84] The Applicant did not have a copy of the termination letter, but he must have generally known its contents because it was read to him at the September 7th meeting.

The existence of the letter was recognized in the Respondent’s materials and the investigationmemo, and the Applicant had a reasonable opportunity to ask that the Director obtain a copy in the review. He did not ask theinvestigator or the Director to obtain a copy. [85] The

section 26 review is conducted on the written record plus any additional submissions or records a party wants to add. TheCommission advised the Applicant of this before his written submissions were due. [86] The Applicant first asked that the Commission obtain a copy of this letter in his written submissions on the review. [87] The Commissioner did not address the Applicant’s request for the letter in their reasons. They are not obliged to respond toevery point and every request.

The Applicant did not set out in his submissions to the Commissioner why the specific content of thedismissal letter was material to the complaint or might support his version of events. It would not have been clear that the letter wouldhelp form the basis to refer the matter forward to a hearing. The Commissioner has wide discretion in these matters.

There was nounfairness or unreasonableness in declining to address this request or proceeding without a copy of that letter. [88] I will also address the Applicant’s submission that the Commissioner erred in failing to apply the reasonableness standard totheir review of the Director’s decision. This did not disclose any error. The Commissioner makes a de novo determination of the matterwhen conducting a review under

section 26 (authorities on this point include A.D. v Alberta Health Services, 2020 AHRC 49 at para 26;Wint v Suncor Energy Inc, 2020 AHRC 61 at para 18; Minor v MacEwan University, 2022 AHRC 74 at para 18;Grewal v Sofina Foods Inc, 2023 AHRC 46 at para 8). The Applicant has not made submissions that persuade me this line ofauthority is unreasonable or incorrect.

VII Second complaint [89] The Applicant complained that the Respondent asked him to leave the mall on November 16, 2018 as a retaliatory action overhis previous issue with the Respondent that occurred September 7, 2018 (Certified Record, p 30) and committed discrimination based onrace, colour and place of origin, as well as a retaliatory action against his vow to report the Respondent to appropriate authorities(Certified Record, p 32).

[90] The Applicant stated that he learned on November 20, 2018, that the security guard asked him to leave the mall because anemployee of a mobile phone store (or kiosk) had alleged he was asking her for a relationship. He further stated: To the shocking amazement of all, the venal security guard showed a purported incident report JUST written by a seemingly invertebrate[Complainant][1] on the same day where she made false sexual allegation against me.

This is an apotheosis of fraud and shenanigan towear me with a false garment in order to achieve their ([Complainant] and the Security Guards) clandestine hatred against me. [91] The Applicant continued in his complaint, that this incident was obvious bullying and discrimination based on his colour,place of origin and race, and retaliation by Paladin.

Further, he stated he was able to deduce that there was obvious collusion “between[Complainant][2] and the Security Guards to malign, and probably blackmail, me so that I will not report this incident to authorities, likeyours, for appropriate sanctions and remediation cum compensation.” (Certified Record, p 34).

He denied the allegation of advancementtoward the kiosk employee. [92] The Respondent responded that it was not aware of any complaint when the Applicant was asked to leave the mall, that theguards had no knowledge of the events of the Applicant’s termination, and the guards were simply responding to a complaint in the mall. [93] In support of its position, the Respondent submitted records called Incident Reports, dated November 22, 2018, includingfrom the kiosk employee who complained about the Applicant, a co-worker of that employee claiming to have witnessed some of theevents, and the guard who asked the Applicant to leave. [94] The kiosk employee recounted that one evening in October, the Applicant had made an advance to her, including asking forher phone number and, after she refused, stating he would wait outside for her until she got off work.

She recounted that she felt uncomfortable and for two nights at the end of her shift, security escorted her to her car. On November 16th the Applicant came to pay abill and asked her what she was doing after work.

She quietly asked her co-worker who had returned to the kiosk to call security, andsecurity asked the Applicant to leave because he was present for 1 ½ hours and making the employees uncomfortable. [95] The co-worker recounted similar details of both evenings. [96] The security guard recounted his instructions to monitor the Applicant because he was making the kiosk employeeuncomfortable and had made advances toward her in the past. He visited the kiosk twice. On the second occasion the kiosk employeetold him the Applicant had been there for over an hour.

The guard asked her if she still felt unsafe and would like the Applicant to leave,and the employee responded yes. The guard told the Applicant he appeared to be loitering and that if he had no actual business toconduct, please continue shopping elsewhere.

When the guard later returned, the Applicant was gone. [97] The Applicant’s submissions to the Commissioner included that the witnesses were essentially conspiring with Paladin(Applicant’s Submissions, para 84; Certified Record, p 184) and the Incident Reports were backdated and actually prepared in 2019 afterthe complaints were made (Applicant’s Submissions, para 94; Certified Record, p 187). [98] The Commissioner set out the statutory prohibition on retaliation in s 10(1) of the Act and the two part test from Walsh vMobil Oil, 2008 ABCA 268 at paras 80-81 (whether there is a link between the alleged conduct and one of the actions enumerated in s10(1) of the Act; and, the alleged conduct was, at least in part, a deliberate response by the employer to one of the actions enumerated in s10(1)). [99] The relevant action alleged in this case was section 10(1)(a): “No person shall retaliate against a person because that person(

a) has made or attempted to make a complaint under this Act,”. [100] The Commissioner concluded there was insufficient information to support a link between the Respondent’s guard removinghim from the mall and the Applicant’s filing a human rights complaint 6 months later or that the Applicant’s colour, place of origin, race,and religious beliefs were factors in the removal.

There was no actual human rights complaint in existence at the time of the incident.The Applicant’s asserted statement to the Respondents that he would report them to appropriate authorities[3], was not making orattempting to make a complaint under the Act.

The removal of the complainant from the mall by the Respondent’s employee was basedon a sincere belief that a female mall employee had experienced unwanted personal advances from the Applicant. [101] The Applicant did not have direct knowledge of the security guard’s instructions or the information he received from theemployees of the mall kiosk. [102] In this regard, the Applicant’s complaint that Paladin’s management instructed a guard in the mall to harass or embarrass theApplicant, that the guard and kiosk employee hated the Applicant and conspired to harm the Applicant, or that his race, colour or placeof origin were factors in the incident, are inferences that the Applicant would ask the Commission to send to the Tribunal for hearing. [103] The Applicant submits that allegations of discrimination can be subtle, nuanced and difficult to prove and there is rarely directevidence of a breach; therefore, discrimination on the basis of race or colour are best determined in a merits hearing, citing Nicholls vGirls Incorporated of Halton, 2021 HRTO 117 as follows: [33] My only comment would be that the Tribunal has held that discrimination on the basis of race and colour are best determined bythe examination and analysis of evidence at a merits hearing.

The Tribunal stated in Grange v. Toronto (City), 2014 HRTO 633 atparagraph 30: The Tribunal has observed on a number of occasions that allegations of discrimination, particularly those related to systemic racialdiscrimination and intersections of more than one prohibited ground, can be subtle, nuanced, and difficult to prove and that there is rarelydirect evidence upon which to find a breach of the Code.

A finding that the Code has been breached is more often the result of theTribunal conducting a careful evaluation of the evidence of both parties and applying its expertise to draw the appropriate inferencesfrom circumstantial evidence. For that reason alone, the Tribunal should take a cautious approach to disposing of allegations of systemicdiscrimination before the evidence is fully considered.

[104] The Commissioner is well placed to identify and assess stereotyping, micro-aggressions, sub-conscious bias, and the insidiousnature of discrimination (Wint v Alberta (Human Rights Commission), 2022 ABQB 87 , 2022 ABKB 87 at paras 35-40). [105] There is nothing to indicate the Commissioner did not understand or ignore the Applicant’s concerns and experiences. It is plainfrom the reasons that the Commissioner must have rejected that the claimed inferences of malice, bad faith, fraud, discrimination andretaliation could arise from any underlying fact or circumstance in this case. [106] The second complaint falls within the types of bald assertions which are appropriate for

summary determination under section26 of the Act. The Applicant has not persuaded me that it was unreasonable for the Commissioner to reject this complaint on the basisthat the security guards at the mall were sincerely responding to a complaint, without any instructions arising from the Applicant’stermination, without collusion with the kiosk employee, and without prohibited grounds being a factor in their actions.

VIII Bias issues [107] The Applicant submits that the Commissioner’s delegate was biased against him, because (1) the delegate is Nigerian like theApplicant, from the same major ethnic group and state, thus under pressure to favour the Respondent to avoid an appearance of favouringthe Applicant; and (2) if the delegate is religious she might loathe the Applicant’s religious belief and express bias against him.

TheApplicant continued, by submitting that allowing the delegate “... to adjudicate over his complaint (viewing it from diverse perspectives)is an unfair move and can be tantamount to an “organizational or institutional” systemic racism...” (Applicant’s written brief on thejudicial review, para 72). [108] There is no evidence of actual bias. [109] There is no evidence that the delegate actually has any of the personal characteristics suggested by the Applicant. Even if therewere, the Applicant has not established reasonable apprehension of bias.

A reasonable person having considered the matter would notconclude that a member of Alberta’s public service could not fairly and impartially decide matters in the course of their duties because oftheir race, origin, or like matters. The Supreme Court’s comments in Yukon Francophone School Board at para 32 apply here. [110] It is not clear whether the Applicant further asserts that the Commissioner’s decision is tainted because of alleged bias on thepart of the Director.

If he does, I would not give effect to the argument. [111] I am not persuaded that the Director exhibited any bias or reasonable apprehension of bias. The Applicant relies heavily on anextension of time granted to the Respondent in which it could file its response to one of the complaints. The Commission has discretionto extend the deadline (Bylaw 2.3). It would be useful to hear the Respondent’s competing views before deciding to send a case on to aTribunal hearing, rather than expend resources only to have the Respondent present their defence at the hearing for the first time.

TheApplicant has not established that the Commission acted unreasonably, and even if it did so, that does not indicate bias or reasonableapprehension of bias. IX Conclusion [112] The Commissioner’s decision on the first complaint is set aside and remitted to the Commission for reconsideration undersection 26 of the Act. [113] The application as it relates to the second complaint is dismissed. [114] The allegation that the delegate is biased is dismissed. [115] The parties may arrange to speak to costs.

Heard on the 23rd day of September 2022; desk endorsement issued 23 September 2022; further correspondence to Clerk’s OfficeSeptember 23, 2022, September 27, 2022, September 29, 2022, January 30, 2023. Dated at Fort McMurray, Alberta this 2nd day of May, 2023. JT Eamon J.C.K.B.A. Appearances:

Olufemi Shodunke, Applicant (self-represented litigant) Julie Menten, Roper Greyell LLP for the Respondent Paladin Security Group Ltd Melissa Luhtanen for the Respondent Chief of the Commission and Tribunals (limited submissions) _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice J.T.

Eamon _______________________________________________________ Para 13, line 5: inserted the word “on” after the word “based” Para 24, quotation of para 63, line 4: inserted “[sic]” after the word “to” Para 42, line 1: inserted the word “of” after the word “support” Para 96, line 4: substituted the word “her” for the word “he” Page 20, Appearances: substituted the last name “Menten” for “Menton”