The Court dismissed an appeal from a reviewing judge’s decision upholding a decision of the chief commissioner of the Alberta Human Rights and Citizenship Commission to refer a complaint to a hearing panel of the Commission. The reviewing judge had correctly found that the chief commissioner’s decision was reasonable.

Administrative law – Human rights complaints – Discrimination – Race – Pay equity – Decisions of administrative tribunals – Human Rights Commission – Jurisdiction – Investigations – Evidence – Role of investigator – Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter

Economic Development Edmonton v. Wong, [2005] A.J. No. 1051, Alberta Court of Appeal, August 30, 2005, Hunt, Berger and Costigan JJ.A.

The Respondent had filed a complaint with the Alberta Human Rights and Citizenship Commission claiming that she had been discriminated against by the Applicant because of her race, colour, gender, ancestry and place of origin, contrary to section 6(1) and 7(1)(b) of the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14. The Respondent’s complaint had been based on the Applicant’s alleged failure to pay her the same rate of pay received by male employees performing the same or substantially similar work. An investigation report recommended that the complaint be dismissed on the basis that her position was not similar to, or substantially similar to, any other position at her workplace. The Commission’s report also concluded that there was no evidence that the Respondent was discriminated against based on her race, colour, ancestry and place of origin. The Director dismissed the complaint for the reasons given in the report.

The chief commissioner was asked to review the Director’s decision. He allowed the Respondent’s request for review and directed that her complaint proceed to the panel hearing stage, finding that there was a reasonable basis to advance the case to the panel hearing stage for a thorough examination. On judicial review, the reviewing judge applied a standard of reasonableness simpliciter and concluded that the chief commissioner’s decision stood up to a somewhat probing examination. A decision of the reviewing judge was appealed.

The Court of Appeal held that, as the nature of the problem before the chief commissioner on the appeal was a question of fact, the standard of review was reasonableness.

The chief commissioner fulfils a screening role. He does not determine whether a complaint is made out, but is called upon to consider the evidence gathered by the investigator in the context of deciding whether there is a reasonable basis in the evidence before proceeding to the next stage. Accordingly, he must evaluate the quality of the evidence gathered by the investigator. The scheme of the Act, its objects and purpose, are inconsistent with the suggestion that the assessment of credibility and fact-finding is within the exclusive jurisdiction of the investigator. The chief commissioner is also entitled to examine fresh evidence not considered by the investigator and, accordingly, a broader view of the role of the chief commissioner is appropriate.

The reviewing judge, in dismissing the application for judicial review, had properly applied the principles governing the exercise of the chief commissioner’s authority under section 27(1)(b) of the Act. The chief commissioner’s decision was reasonable. In the result, the appeal was dismissed.

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