The City of Calgary was successful in having the Court set aside the decision of the Chief Commissioner of the Alberta Human Rights and Citizenship Commission where the Court found that the Chief Commissioner’s decision was unreasonable as it compared the situation of the disabled complainant (“Halfyard”) with other groups of employees not contemplated by the relevant section of the Collective Agreement

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human Rights – Discrimination – Disability – Age – Labour law – Collective agreements – Workers compensation – Benefits – Judicial review – Standard of review – Reasonableness simpliciter

Calgary (City) v. Alberta (Human Rights and Citizenship Commission), [2007] A.J. No. 852, Alberta Court of Queen’s Bench, July 17, 2007, J.H. Langston J.

Halfyard was an employee of the City of Calgary who, during the course of his employment, received life threatening injuries that disabled him from any form of employment. Halfyard was a member of a union that had a subsisting Collecting Agreement with the City. He applied for and received Workers’ Compensation benefits by way of a lifetime pension, which were equivalent to 90% of his net pay. The Collective Agreement provided that the City would “top up” the WC benefits by a further 10%, thereby providing Halfyard with the equivalent of full net pay. The Agreement provided that the City’s “top up” would cease at the earliest of Halfyard’s attainment of his “85 factor”, that is his age, plus years of experience, or upon reaching the age of 65. Halfyard would reach his “85 factor” in January 2009, when he would be 56.

In November 2003, Halfyard made a Human Rights complaint against the City, alleging discrimination based on age and disability. He claimed that non-disabled employees could choose when they wished to retire, but he could not and therefore, he was discriminated against because of his disability. Further, he alleged that if he were not disabled, he could work past the age of 56 and accrue more pension benefits. Therefore, he alleged he was discriminated against based on age.

An initial investigation by a Human Rights Investigator concluded that the Agreement was discriminatory. The City disagreed and the matter was referred to the Director who dismissed the complaint, concluding that the City was not engaging in discriminatory employment practices based on physical disability or age. Halfyard appealed the Director’s decision to the Chief Commissioner who, without any particular analysis of the issues identified by the Director, concluded that there was evidence that the City would be subjecting Halfyard to differential treatment. The Chief Commissioner felt that the matter should be examined by a Hearing Panel and made the appropriate appointment. The City sought judicial review of the Chief Commissioner’s decision.

The Court used the pragmatic and functional approach to determine that the appropriate standard of review was one of reasonableness simpliciter.

The Court reviewed the reasons given by the Chief Commissioner and noted that it appeared that the Chief Commissioner had drawn a comparison between Halfyard and (1) other non-disabled employees; and (2) others less severely disabled than Halfyard who were able to pursue gainful employment. Such a comparison must have been based upon the Chief Commissioner’s view that there was a flexible definition of the term “disabled” as contained in the impugned section of the Agreement. The Court reviewed the Agreement and noted that the relevant provision only applied to individuals who were incapable of pursuing any substantial occupation for a long and potentially indefinite time. Therefore, the Court concluded that the Chief Commissioner was comparing Halfyard to other employees who did not fall within the definition of disabled. Neither of the groups used for comparison purposes represented groups for which this particular type of benefit was intended. The identifiable group contemplated by the section of the Collective Agreement was limited because of the catastrophic nature of the injuries that were defined by the section.

In the result, the Court held that the Chief Commissioner’s decision was unreasonable and directed that the decision be set aside.

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