Volpi v Alberta (Human Rights Commission), 2023 ABKB 608

Court of King’s Bench of Alberta Citation: Volpi v Alberta (Human Rights Commission), 2023 ABKB 608 Date: 20231027 Docket: 2103 09638 Registry: Edmonton Between: David Volpi Applicant - and - Alberta Human Rights Commission (Office of the Chief of the Commission and Tribunals) and Lifemark Health Corp. Respondents _______________________________________________________ Memorandum of Decision of the Honourable Justice M.

Hayes-Richards _______________________________________________________ [ 1 ] David Volpi [Applicant] filed a complaint with the Alberta Human Rights Commission [Commission], alleging discrimination on the ground of disability. In brief, the alleged discrimination revolved around a request for leave and the Applicant’s subsequent resignation. An investigator at the Commission investigated the complaint and prepared a report recommending that the complaint be dismissed. That recommendation was confirmed by the Director.

On appeal to the Chief of the Commission and Tribunals [Chief], the Chief upheld the Director’s decision, indexed at: Volpi v LifeMark Health Corp , 2021 AHRC 118 [ Chief’s Decision ]. The Applicant now applies to this Court for judicial review. [ 2 ] The Applicant submits that the Chief’s Decision to dismiss his complaint was unreasonable because he failed to:

(

a) recognize that the Respondent Lifemark Health Corp failed in its duty to inquire into his mental health; (

b) recognize that the Applicant’s mental health leave and conduct surrounding that time was caused or contributed to by his mental health condition; (

c) recognize that the Respondent Lifemark Health Corp refused to provide the Applicant a mental health leave even though there was significant evidence to show the failure to accommodate; and (

d) account for relevant evidence. [ 3 ] The Chief’s role was to assess whether there was a reasonable basis in the evidence to proceed to adjudication. For the reasons that follow, I find the Chief’s Decision to dismiss the complaint was reasonable. I. Background [ 4 ] The Applicant is a physiotherapist who worked for the Respondent Lifemark Health Corp as an independent contractor from 2000 to 2016. He has apparently been dealing with mental health issues since 2008 which resulted in his hospitalization in 2009.

A doctor’s note provided to his employer at the time of his hospitalization in 2009 does not indicate the reason for his hospitalization. [ 5 ] The Applicant says that he had been a valued member of the Respondent Lifemark Health Corp’s team, but workplace difficulties arose after a new Clinic Manager, Mr. Singh, was hired in 2015. He alleges that he was asked to breach his professional ethics, and harm the health of patients, among other concerns, which led to stress, burnout and difficulties coping.

The Respondent Lifemark Health Corp says that throughout the Applicant’s tenure, there were serious challenges working with him. He allegedly frequently behaved contrary to office policies and the Respondent Lifemark Health Corp received complaints about his conduct. [ 6 ] On January 13, 2016, the Applicant exchanged email correspondence with the prior Clinic Manager, Mr. Head, referencing having recently taken a three-week break from the clinic to address burnout. [ 7 ] On March 2, 2016, the Applicant was required to attend a meeting with Mr. Head and Mr. Singh regarding a complaint about his conduct.

During this meeting, Mr. Head acknowledged that the topic of the meeting was stressful for the Applicant and advised him of the Respondent Lifemark Health Corp’s employee assist program. [ 8 ] In July 2016, the Applicant requested 6 weeks leave commencing September 24, 2016. He sent an email to Mr. Singh with the subject line “My Break” suggesting time off from September 24 to November 8, 2016. Mr. Singh replied that it would be difficult to give the Applicant a six-week break given that he had already taken three weeks off earlier in the year. Mr.

Singh suggested a five week break instead commencing October 1, 2016. The Applicant agreed to the new dates but made clear in the email that this was not vacation leave, but stress leave due to burnout. [ 9 ] On September 30, 2016, the last day of work before the Applicant’s scheduled time off, he submitted a resignation letter to Mr. Singh. Mr. Singh asked if anything could be done to change the Applicant’s mind and he said no. He indicated that he would be in touch once he returned from his time off.

A week later, on October 8, 2016, the Applicant confirmed his resignation in a further email in which he noted that he had “reached a stage of burnout” and that his reasons for resigning were “multiple and complex”. [ 10 ] The Applicant states that he tried to communicate with the Respondent Lifemark Health Corp about a return to work on October 18, 20 and 26, 2016. Finally, when he attended at the Respondent Lifemark Health Corp’s office to speak to Mr. Singh about returning to his position on December 6, 2016, he was told that his position had been filled and he could apply if another position came open. II.

Legislative Framework and Chief’s Decision [ 11 ] On August 15, 2017, the Applicant filed a complaint with the Alberta Human Rights Commission alleging discrimination on the protected ground of mental disability. The complaint was investigated by a Human Rights Officer who found that the information provided supported the claim that the Applicant was suffering from stress and had advised the Respondent Lifemark Health Corp of same.

The Human Rights Officer’s investigation memo of November 18, 2020 concluded that the disclosures relating to stress had occurred in the context of discussions about workplace issues and conflicts. The Human Rights Officer noted human rights jurisprudence that states that stress alone is not a disability and that an employer ought not to assume that an employee experiencing stress in the workplace has a disability. The Human Rights Officer recommended that the complaint be dismissed. [ 12 ] The Applicant submitted a response to the Human Rights Officer’s memo recommending dismissal.

The Director then reviewed the complaint file and dismissed the complaint on December 22, 2020. [ 13 ] Where the Director dismisses a complaint, the complainant may request a review of the Director’s decision by the Chief, pursuant to s 26 of the Alberta Human Rights Act , RSA 2000, c A-25.5 [ Act ].

On receiving a request for review, the Chief must review the record of the Director’s decision and decide whether the complaint should have been dismissed. [ 14 ] The Applicant filed a request for review of the Director’s decision on January 15, 2021.The Respondent Lifemark Health Corp filed a response to the request for review. [ 15 ] On May 27, 2021, the Chief upheld the Director’s decision to dismiss the complaint.

He correctly articulated the legal test to be applied under s 26 of the Act as determining whether there is a reasonable basis in the evidence for proceeding to a hearing before a Tribunal, and noted the threshold is low and that he is given wide latitude in performing this screening function: Chief’s Decision at para

28. [ 16 ] The Chief agreed with the Director that the complaint should be dismissed. He stated that if the matter went before a tribunal, the Applicant would have to show that he had a disability and that he suffered an adverse impact of termination as a result of that disability, or that the Respondent Lifemark Health Corp did not accommodate the disability to the point of undue hardship.

He held that the Applicant failed to provide the necessary documents or notification to the Respondent Lifemark Health Corp that he suffered from a disability, and that while employers have a duty to accommodate when required, they cannot be expected to do so when they have been given no notice of a need to accommodate, nor any indication that they should inquire into a potential issue: Chief’s Decision at para 29. [ 17 ] The Chief went through the documents provided by the Applicant and held that they did not support the conclusion that the Applicant’s resignation was due to a disability.

He pointed out that the Applicant himself referred to the time off in 2016 as vacation and that it was not until after the period of time off had been agreed on that the Applicant stated it was for stress leave: Chief’s Decision at para 29. He further pointed out that following the Applicant’s resignation on September 30, the Respondent Lifemark Health Corp asked if there was anything they could do to get him to change his mind, but the Applicant confirmed on October 8 th that he was not planning on returning.

The Chief found the Applicant did not link his resignation with any disability through documentation and that he was traveling through Europe on a self-described vacation: Chief’s Decision at para 30. [ 18 ] The Chief also noted that although the complaint alleged intimidating and wrongful conduct on the part of the Respondent Lifemark Health Corp by the Clinic Manager and administrator, there was no documentation to support these claims. In his opinion, the documents provided actually showed the opposite, a collegial working relationship.

When the Applicant was asked if there was anything that could be done to keep him following his resignation, his response was to confirm his resignation, and there was no allegation or documentation of a disability or harmful conduct provided to the Respondent Lifemark Health Corp in the resignation letter or follow-up email: Chief’s Decision at para 31. [ 19 ] For these reasons, the Chief concluded there was no reasonable basis in the evidence to proceed to a hearing: Chief’s Decision at para 33. [ 20 ] On July 22, 2021, the Applicant filed this originating application for judicial review of the Chief’s Decision.

III. Standard of Review [ 21 ] The Chief’s role in this case was to assess whether there was a reasonable basis in the evidence to proceed to adjudication. The threshold of a reasonable basis for adjudication is low.

The Chief does not determine whether the complaint is in fact made out or substantiated, rather, there only needs to be enough evidence to justify a hearing on the merits: Economic Development Edmonton v Wong , 2005 ABCA 278 at paras 15- 16 [ Wong ]. [ 22 ] While the threshold is low, the Chief is given a wide latitude in performing the screening function, and courts are not to lightly interfere: Mis v Alberta (Human Rights & Citizenship Commission) , 2001 ABCA 212 at paras 8-9 [ Mis ].

The Chief must necessarily evaluate the quality of the evidence and consider the sufficiency of the evidence and whether it points clearly to the veracity of one account of the facts as opposed to another: Wong at paras 17- 20 and 40 . [ 23 ] The issues raised by the Applicant on review of the Chief’s Decision involve questions of mixed fact and law.

All parties agree, and I accept, that the jurisprudence is clear that the standard of review of the Chief’s Decision is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at paras 10 , 23-25 [ Vavilov ]. [ 24 ] A reasonableness review, while still a robust form of review, has at its core judicial restraint and “respect for the distinct role of administrative decision makers”: Vavilov at para 13 . It considers the “justification, transparency and intelligibility” of a decision: Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 [ Dunsmuir ].

Reviewing courts should respect administrative decision makers and their specialized expertise, should not ask how they themselves would have resolved an issue and should focus on whether the Applicant has demonstrated that the decision is unreasonable: Vavilov at paras 75, 83 . This means “the focus of reasonableness review must be on the decision actually made by the decision maker” and the “reviewing court must consider only whether the decision made by the administrative decision maker – including both the rationale for the decision and the outcome to which it led – was unreasonable”: Vavilov at para 83 .

In this context, reviewing courts “must refrain from ‘reweighing and reassessing the evidence considered by the decision maker’”: Vavilov at para 125 . Ultimately, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”: Vavilov at para 85 . IV. Issues [ 25 ] The Applicant frames the overall issue as whether or not the decision of the Chief to dismiss his complaint was reasonable. He submits that the decision was unreasonable because the Chief failed to: (

a) recognize that the Respondent Lifemark Health Corp failed in its duty to inquire into his mental health; (

b) recognize that the Applicant’s mental health leave and his conduct surrounding that time was caused or contributed to by his mental health condition; (

c) recognize that the Respondent Lifemark Health Corp refused to provide the Applicant a mental health leave even though there was significant evidence to show the failure to accommodate; and (

d) consider relevant evidence.

[26] Although the Applicant’s written submissions initially identify four grounds for the judicial review application, the Applicantappears to have dealt with issues

b) and

c) above together in his written materials, so I will do the same. His grounds can be restated asfollows: (

a) The Chief failed to recognize that the Respondent Lifemark Health Corp failed in its duty to inquire into his mental health; (

b) The Chief put undue weight on the Applicant’s failure to provide the necessary documents to support that he continued tosuffer from a mental health disability in summer/fall of 2016; (

c) The Chief failed to account for relevant evidence. [27] As will be seen, these three grounds are largely overlapping. V. Analysis [28] I begin with some general comments about the Act. Section 7(1) of the Act prohibits employers from discriminating againstemployees on the grounds of “mental disability” (among others). Section 44(1)(

h) of the Act defines “mental disability” as “any mentaldisorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder”. The onus is on an employee toprove, on a prima facie basis, that he or she was discriminated against on the basis of a prohibited ground; if that threshold is met, theburden then shifts to the employer to justify its conduct: Moore v British Columbia (Education), 2012 SCC 61at para 33.

Human rightslegislation must be construed broadly and the defences to discriminatory conduct must be construed narrowly having regard to theirremedial purpose: Walsh v Mobil Oil Canada, 2008 ABCA 268 at para 131, per Paperny JA, concurring. [29] People living with mental illness notoriously experience stigma and are often unjustly and unnecessarily impeded inparticipating in civil society, including employment: Saadati v Moorhead, 2017 SCC 28 at para 21.

The duty of reasonableaccommodation requires employers to take reasonable measures short of undue hardship to attempt to accommodate the situation ofemployees who would otherwise experience barriers or hardship to continued employment due to, among other grounds, mentaldisability: British Columbia (Public Service Employee Relations Commission) v British Columbia Government and ServiceEmployees Union, (SCC), [1999] 3 SCR 3 at para 54; s 11 of the Act. A.

Did the Chief fail to recognize that the Respondent Lifemark Health Corp failed inits duty to inquire into his mental health? [30] The Applicant claims that at the relevant time he had been suffering from stress and burnout, both of which are mentaldisabilities protected under the Act.

In his written submissions, he also referenced depression, fear and anxiety (at paragraphs 15 and 82)and bipolar disorder (at paragraph 44), which conditions are not elaborated elsewhere in those submissions. [31] Clearly, stress is a factor in many jobs today and accordingly stress does not automatically equate to a mental healthcondition: Canada (Attorney General) v Gatien, 2016 FCA 3at para 48. At the same time, stress can be a mental health condition ifsubstantiated by a medical diagnosis: see Salazar v JSL Investments Corporation, 2020 AHRC 8.

The question of whether anindividual’s stress constitutes a mental health condition protected under the Act is heavily fact-specific. The Applicant cites an academicarticle concerning workplace burnout, Patrica Thornton, “The Relation of Coping, Appraisal and Burnout in Mental Health Workers”(1991), The Journal of Psychology 126(3), 261.

The Applicant does not point to any authority in which burnout was found to be a mentalhealth condition. [32] An employee has a duty to bring to the attention of the employer the facts relating to his or her disability and the consequentneed for accommodation: Central Okanagan School Dist No 23 v Renaud (1992), (SCC), [1992] 2 SCR 970; Burgess vStephen W Huk Professional Corporation, 2010 ABQB 424 at paras 67-76.

However, an employer has a duty to inquire regarding thehealth of an employee where the employer has reason to suspect that a condition may be impacting the employee’s ability towork: Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 at para 149; Kvaska v Gateway Motors (Edmonton) Ltd, 2020 AHRC94 at paras 43-45. An employee might well be unaware that he or she is suffering from a mental illness, so it is quite possible that he orshe never consults a physician or notifies the employer: Dupuis v Canada (Attorney General), 2010 FC 511 at para 26 (Dupuis).

Anemployer’s lack of understanding of mental disabilities or stereotypical assumptions about how they manifest does not excusediscriminatory conduct: Fisher (Marshall) v Devolbren Property Services Inc, 2022 AHRC 67 at para 115; Cryderman v Time to PlayECS (and individual respondents), 2020 AHRC 26 at para 17. [33] The Applicant argues that the Respondent Lifemark Health Corp had a duty to inquire into his mental health because 1) it wasaware of his mental disability since his hospitalization in 2009, and 2) it knew that, in the summer of 2016, the Applicant was exhibitingsigns of stress and burnout and knew these were symptoms of his mental health issue.

The Applicant says that he asked for time off todeal with his mental health condition, but was not given permission for time off. He further claims that the Respondent Lifemark HealthCorp had a duty to inquire into his mental health before denying his numerous requests for stress-leave. [34] None of the Applicant’s allegations are supported on the record before the Chief. There is no evidence that the RespondentLifemark Health Corp was aware that the Applicant’s hospitalization in 2009 had been due to a mental health condition.

The doctor’snote provided at the time of his hospitalization does not specify the reason why he was in the hospital. Likewise, the Applicant’ssuggestion that the Respondent Lifemark Health Corp somehow knew that stress and burnout were symptoms of the Applicant’s mentalhealth issue is unsupported by any evidence on the record before the Chief. Finally, the record before the Chief shows that the Applicantwas always given time off when he requested it. Negotiating with the Applicant to amend his request for time off by shortening hisrequest by one week, does not constitute refusal to accommodate his requests.

The one-week delay in the commencement of theApplicant’s leave was expressly agreed to by the Applicant.

[ 35 ] After his 5 week leave was approved, the Applicant chose to resign. I agree with the Applicant’s characterization that his actions had been “impulsive” and done on a “whim”. While this may indeed have been a result of the Applicant’s mental health issue, that fact was unknown to the Respondent Lifemark Health Corp at the time. Even so, the Respondent Lifemark Health Corp asked the Applicant if there was anything it could do to change his mind. The Applicant said there was not and then followed up his resignation letter with an email confirming his position.

The email noted that he had “reached a stage of burnout” and that his reasons for resigning were multiple and complex. The Chief found the email in no way supported that the resignation was due to a disability. [ 36 ] The Applicant cites three cases in support of his position: Mackenzie v Jace Holdings and another (No 4) , 2012 BCHRT 376 , Minifie v Duncan Housing Society , 2015 BCHRT 184 , and Amalgamated Transit Union, Local 583 v Calgary (City) (Carp Grievance) , [2004] AGAA No 75.

These three cases are clearly distinguishable from the case before me in that in each case the employer expressly terminated the employment of the complainants for erratic behaviour or misconduct. That is not the situation here. [ 37 ] The Applicant asserts that erratic behaviour and personality conflicts can conceal a mental health condition, citing Dupuis at para 27 . The Federal Court indicated, later on in the same paragraph, that one way of accommodating an employee “on the verge of burnout” was to grant leave to the employee, which in fact happened in this case.

I do not accept that, after having done so, the Respondent Lifemark Health Corp was required to further inquire into the Applicant’s mental health condition, in the absence of any evidence to suggest that he was experiencing a mental health disorder. [ 38 ] The Applicant also argued that the Chief failed to even consider the duty to inquire. That is not correct.

The Chief explicitly stated that while “employers have a duty to accommodate when required, they cannot be expected to do so when they have been given no notice of a need to accommodate, nor any indication that they should inquire into a potential issue”: Chief’s Decision at para 29. [ 39 ] I agree with the Respondent Lifemark Health Corp both that no duty to inquire arose in the Applicant’s circumstances and that there had been no discrimination. The Applicant never brought his mental health condition to the attention of the Respondent Lifemark Health Corp.

While he indicated he was stressed and burned out, these do not automatically equate to a mental disability. [ 40 ] I find that it was reasonable for the Chief to find there was insufficient evidence to support the Applicant’s allegation that the Respondent Lifemark Health Corp owed him a duty to inquire. B.

Did the Chief put undue weight on the Applicant’s failure to provide the necessary documents to support that he continued to suffer from a mental health disability in summer/fall of 2016 [ 41 ] The Applicant argues that in the period from October 8 to December 6, 2016, he had been requesting the Respondent Lifemark Health Corp to accommodate his “mental health crisis”. The Applicant further argues that the duty to accommodate is ongoing, and that when an employer receives new information relating to an employee’s health condition, the employer is required to reassess possible accommodation.

I agree with this proposition. However, it is difficult to understand how this argument assists the Applicant, given the circumstances. There is no evidence that the Respondent Lifemark Health Corp knew that the Applicant’s hospitalization in 2009 had been for a mental health issue. The doctor’s note provided at the time did not indicate the reason for the hospitalization. There is no evidence that the Applicant advised Mr. Singh or anyone in administration that he had been suffering from a mental health issue. He referenced stress and burnout and referred to needing a break.

The Applicant claims to have offered to provide Mr. Singh with a doctor’s note in support of his leave, which offer he claims Mr. Singh declined. The Respondent Lifemark Health Corp denies Mr. Singh ever received such an offer for a doctor’s note. [ 42 ] The Applicant submits that the Chief failed to consider the Applicant’s evidence in this regard. In his written submissions, he claims that he “tried to communicate with Mr.

Singh, and provide him with a doctor’s note, if that was needed for him to get the mental health leave he needed.” He references the Certified Record – Page 107 – Complainant March 10, 2020 letter. This claim is not substantiated by the document referenced. The March 10, 2020, letter does not reference offering to obtain a doctor’s note if that was required to the get mental health leave he needed . It simply references an offer to obtain a medical note from his family physician, especially since his doctor had referred him to a psychiatrist.

Even if this evidence was ultimately accepted, it is not evidence that the Applicant told Mr. Singh he had a mental health issue. It is simply evidence that Mr.

Singh did not require a doctor’s note to give the Applicant his requested time off, but for a one week shorter period. [ 43 ] The Applicant submits that it would be discriminatory for an employer to simply process a resignation without trying to determine if the employee could be accommodated, particularly when the resignation was submitted after a refusal to accommodate the employee and when the employee, ie the Applicant, had always intended to return to work (at paragraphs 107 and 109). However, that characterization of the events is not supported in the record.

The Applicant’s resignation was submitted after the approval, not the rejection of his leave request, and Mr Singh asked if anything could be done to dissuade him from resigning. [ 44 ] The fact that the Applicant’s terse letter of resignation contained typos and was not written on letterhead does not substantiate the Applicant’s allegations (at paragraph 108) that it was written under duress or revealed the “medical crisis” he had been experiencing. [ 45 ] The Chief concluded that the Applicant failed to provide the necessary documents or notification to the Respondent Lifemark Health Corp that he suffered from a disability.

That conclusion was reasonable on the record before him. C. Did the Chief’s decision fail to take relevant information into account? [ 46 ] The Applicant submits there are several relevant and important pieces of evidence that the Chief either failed to consider or otherwise improperly discounted. He says this evidence contradicts critical parts of the Respondent’s assertion that it was not aware of the Applicant’s mental health issue in 2016, at the time of his resignation, nor when he sought to retain his position.

[ 47 ] This includes evidence: • The Respondent Lifemark Health Corp knew he was suffering from a mental health condition when he left on leave in September 2016 and when he resigned; • He told the Respondent Lifemark Health Corp that he had visited his doctor as his mental health condition was getting unbearable and that he was referred to a psychiatrist in July 2016; and • The Respondent Lifemark Health Corp knew of the Applicant’s mental health concerns by March 2, 2016. [ 48 ] The Chief is entitled to assess competing information where accounts differ and may apply its experience and expertise in finding the complaint does not meet the threshold for moving to a hearing.

The Chief’s decision is not required to address every piece of evidence or every argument raised: Cunin v Alberta (Human Rights Commission) , 2019 ABQB 578 at para 36 . [ 49 ] The allegations made by the Applicant as to what the Respondent Lifemark Health Corp knew are not supported by the documentary evidence or even by his own evidence. A few examples demonstrate this. The Applicant says the Respondent Lifemark Health Corp knew he was suffering from a mental health condition when he went on leave in September 2016 and when he resigned.

But the only evidence he points to is having told the Respondent Lifemark Health Corp that he needed time off because of stress and burnout. Stress and burnout do not automatically equate to a mental health issue. Likewise, the Applicant says that he offered to get Mr. Singh a doctor’s note from his family physician. The Applicant says this offer was made after his doctor had referred him to a psychiatrist, but he does not say that he told this to Mr. Singh. There is no suggestion that the Applicant told Mr.

Singh he had a mental health condition, had been referred to a psychiatrist, and that the doctor’s note would confirm this. In his written submission, the Applicant says “…the Chief either disregarded or failed to account for Mr. Volpi telling Mr. Singh that he had visited his doctor as his mental health condition was getting unbearable, and that he was referred to a psychiatrist in July 2016”: at para 130. The referenced source of this conversation is the Certified Record – Complainant’s Request for Review at para 8”. Paragraph 8 of the Complainant’s Request for Review does not say that the Applicant told Mr.

Singh he’d been to the doctor for a mental health issue and was being referred to a psychiatrist. [ 50 ] The Applicant also says the Respondent Lifemark Health Corp knew of his mental health concerns by March 2016. He relies on a recording of a conversation he had with Mr. Head and Mr. Singh in which Mr. Head references knowing that the topic of the conversation is stressful for the Applicant and that he knows what stress can do to the Applicant.

Recognizing that a person can be affected by stress is not evidence that the Respondent Lifemark Health Corp knew of the Applicant’s mental health concerns. [ 51 ] I cannot agree with the Applicant that the certified record contains “sufficient medical information to address the diagnosis, the request for accommodation, the medical condition which caused the impulsive decision to take medical leave as well as the information to accommodate the return to work" (at paragraph 127). [ 52 ] Instead I agree with the Respondent Lifemark Health Corp that the documentary evidence before the Chief provided a sufficient and reasonable basis for the Chief to conclude that the Respondent Lifemark Health Corp did not discriminate against the Applicant and therefore did not owe the Applicant a duty to inquire or a duty to accommodate.

It was reasonable to find that the Respondent Lifemark Health Corp knew the Applicant was stressed and burned out, that the Applicant requested time off and was provided five of the six weeks requested, and that the Applicant resigned on the day he was supposed to start his time off. The Respondent Lifemark Health Corp inquired as to whether there was anything they could do to change his mind and he said there was not. The Applicant then confirmed that resignation via further email about a week later.

That email confirmed only that he had “reached a stage of burnout” and that his reasons for resigning were multiple and complex. There was no mention of a mental health issue, doctor’s visit, or psychiatric referral in the resignation letter or the follow-up email. [ 53 ] The Chief’s decision suggests he considered all of the evidence before him. He is not required to mention or address every piece of evidence or every argument made. Much of the documentary evidence contradicted the Applicant’s allegations and arguments. I find the Chief did not fail to take relevant evidence into account.

His conclusions about the evidence were reasonable. VI. Conclusion [ 54 ] The Chief’s decision dismissing the Applicant’s complainant on the grounds there was no reasonable basis to have the complaint proceed to the Tribunal was reasonable. Even though the threshold for forwarding a complaint for adjudication before the Tribunal is low, I find the Chief’s decision to decline to do so to be justified on the record, intelligible and transparent having regard to the facts and statutory framework.

The application for judicial review is dismissed. [ 55 ] The Respondent Lifemark Health Corp sought costs of responding to this application. Costs were not addressed at the hearing. If the parties cannot agree on costs within 30 days after the date of this decision, they may provide written submissions, no longer than two pages, with a draft bill of costs attached. Heard on the 30 th day of June, 2023.

Dated at the City of Edmonton, Alberta this 27th day of October, 2023. M. Hayes-Richards J.C.K.B.A. Appearances: Arman Chak, ForensicLaw for the applicant David Volpi Melissa L Luhtanen for the respondent the Office of the Chief of the Commission and Tribunals of the Alberta Human Rights Commission Andrew Dixon, Fasken, Martineau, Moulin LLP for the respondent Lifemark Health Corp