As a potential claimant who has experienced a workplace human rights issue, you may wonder which forum is best situated to hear your complaint – the Alberta Court of King’s Bench or the Alberta Human Rights Commission?
This issue frequently arises in a situation where an employee has been wrongfully dismissed and is claiming the dismissal was done on the basis a protected ground in the human rights legislation. Such protected grounds include gender, race, ethnicity, religious beliefs, physical disability, etc. If an action is filed in the Court of King’s Bench, the employee is most often looking for proper reasonable notice and other damages typically in the form of “bad faith” which encompasses compensation for the discrimination the employee experienced. If the employee files a parallel human rights complaint with the Human Rights Commission, they are solely looking for damages for compensation for the discrimination they have experienced. As a result, the claims in the two forums often overlap.
The Alberta Human Rights Commission cannot hear claims for a wrongful dismissal as its mandate, broadly speaking, is aimed at compensation for discrimination specifically and deterrence of same in the future. Likewise, the Alberta Court of King’s Bench typically leaves issues of discrimination up to the Human Rights Commission.
What is the correct forum when the matters overlap on the issue of human rights damages? The answer is that in many situations you can file in both forums and have them move ahead in tandem. In Melnyk v. RBC Dominion Securities Inc., the Alberta Human Rights Commission provided helpful guidance on this issue. In this case, the complainant alleged that the employer discriminated against him on the grounds of mental and physical disability due to an alcohol addiction. The complainant first started a civil action for wrongful dismissal and also alleged his termination was due to his addiction, then later commenced a parallel human rights complaint regarding the same facts.
Pursuant to Bylaw 20.4 of the Alberta Human Rights Commission bylaws, the employer brought an application to have the human rights complaint stayed or dismissed given the civil action had been filed. Neither matter had yet proceeded to a final hearing and there had been no findings made in either. The Alberta Human Rights Tribunal concluded that it was not in the interests of justice to defer the hearing of the human rights complaint in favour of the civil action. It based its decision in large part on the fact that there had been no findings made yet in either forum. The Commission also concluded that the complaint would not be dismissed as an abuse of process. While there was considerable overlap between the two proceedings, the risk of inconsistent findings was premature because neither forum had yet made findings. The stay application was dismissed and the matter was ordered to proceed ahead in both the Court and before the Commission.
While the Alberta Court of King’s Bench typically leaves issues of discrimination up to the Human Rights Commission, there are some circumstances where an employee of any government employers can pursue a discrimination claim in Court, as some government employers are subject to the Canadian Charter of Rights of Freedoms. This was recently demonstrated in Steele v. Leduc (City).
The defendant city was accused in a class action lawsuit by many of its female firefighters of tolerating systemic discrimination, sexual misconduct and sexual assault for years. It was alleged that senior management was aware of the misconduct and assaults and did nothing but retaliate against the female firefighters for reporting such abuse.
This matter was filed before the Court of Queen’s Bench (as it then was known) on February 24, 2022. The Statement of Claim, later amended, positioned the claims as disputes arising outside of the collective agreement. Therefore, the claimants would not be bound to address the dispute within the confines of their union and labour relations parameters. The claimants plead that the defendant was negligent, was in breach of sections 7 and 15 of the Charter and had defamed the claimants. The certification of the class action was done on consent.
Interestingly, the claims were not plead as human rights claims under the Alberta Human Rights Act. There is not a great deal of precedent for pursuing a sexual harassment complaint against a government employer as a Charter breach as opposed to a human rights complaint. As Steele recently settled out of court, it remains an open question as to what the Court of King’s Bench would have decided in terms of its jurisdiction to hear the matter both in respect of the Charter/human rights issue and on the point of the matter being “outside” of the collective agreement.
Accordingly, the precedential value of Steele remains unclear. This is especially so given the Alberta Court of Appeal in Prodaniuk v. Calgary (City) recently dismissed an appeal of a chambers decision striking a claim for lack of jurisdiction on similar grounds as that in Steele. In Prodaniuk, the claimant alleged unfair treatment, sexual harassment and sex discrimination against the defendant city. The chambers judge held that the real nature of the dispute was around workplace conditions. Therefore, the dispute fell under the parties’ collective agreement and would not be the correct forum for the dispute. On appeal, the Alberta Court of Appeal agreed with the chambers judge and determined that the claim fell within the exclusive jurisdiction of the specialized labour relations arbitrator.
If you find yourself wrongfully dismissed with a potential human rights element to your dismissal or experiencing a discrimination issue, Cashion Legal can help you determine which forum is best placed to hear your complaint. Cashion Legal has experience in front of all Alberta Courts and before the Alberta Human Rights Commission.