The court found that the higher standard of proof applied by the Human Rights Tribunal Panel was wrong and contrary to the very essence of human rights legislation. However, in reviewing all of the evidence, the court held that the conclusion of the Panel was correct. The facts established by the Applicant did not amount to discrimination against the Applicant by the employer on the basis of race, colour, ancestry or place of origin with regard to employment or any term or condition of employment.

Administrative law – Human rights complaints – Discrimination – Decisions of administrative tribunals – Human Rights Commission – Judicial review – Standard of review – Correctness

Bobb v. Alberta (Human Rights and Citizenship Commission), [2004] A.J. No. 1117, Alberta Court of Queen’s Bench, October 12, 2004, Verville J.

The Applicant filed a complaint with the Human Rights and Citizenship Commission which alleged that the Edmonton remand centre had discriminated against him on the basis of race, colour, ancestry and place of origin in the protected area of employment practices. The Human Rights Panel dismissed the complaint in its entirety after a four-day hearing. The Applicant appealed the decision of the Panel to the court.

The standard of review on appeal of a Panel decision on a question of law was correctness. This was also the standard on a question of mixed fact and law.

The Human Rights Panel held that in this case the degree of probability required was not as high as in criminal proceedings but should nevertheless be applied in rigorous manner. The Panel held that a higher degree of probability was required because of the nature of the business of the Respondent and the potential for stigmatization if the case was made out by the Applicant. However, the court held that there would have to be a very good reason in order to render a complainant’s task in establishing discrimination more onerous and that such a reason did not exist in this case. The stigma associated with proof of such conduct could not be equated to a disciplinary hearing where there are serious allegations of a criminal or quasi-criminal nature possibly resulting in significant penalty. There were no compelling policy reasons which would support higher protection of a government agency such as the Edmonton remand centre. While a Human Rights Panel might be justified in some cases in requiring a higher standard, in the circumstances of this case the court held that the implementation of a higher standard was wrong and contrary to the very essence of human rights legislation.

However, the court noted that even with the higher onus placed on the Applicant, the Panel found the facts to be as alleged by him. The facts established by the Applicant did not prove that there was a poisoned work environment. Nor did they amount to discrimination against the Applicant by the employer on the basis of race, colour, ancestry or place of origin with regard to employment or any term or condition of employment. The appeal was therefore dismissed.

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