The Appellant employee, Ms. Burgess, unsuccessfully appealed the decision of the Alberta Human Rights Tribunal, which dismissed her complaint against her former employer, Stephen W. Huk Professional Corporation

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human Rights complaints – Discrimination – Duty to accommodate – Religion – Pregnancy – Judicial review – Standard of review – Correctness – Evidence – Burden of proof – Failure to provide reasons

Burgess v. Stephen W. Huk Professional Corp., [2010] A.J. No. 756, 2010 ABQB No. 424, Alberta Court of Queen’s Bench, June 25, 2010, M.T. Moreau J.

The Complainant, Ms. Burgess, was employed as a dental assistant at the dental clinic owned and operated by the Respondent, Stephen W. Huk Professional Corporation. Dr. Huk acts as the clinic’s director, managing its operations. Ms. Netter was the office administrator/manager and Ms. Brayer was the head dental assistant. Both Ms. Netter and Ms. Burgess reported to Dr. Huk.

Ms. Burgess made a complaint to the Alberta Human Rights Tribunal regarding her employment at the clinic.

Ms. Burgess became pregnant in 2005, but this information was not shared with Dr. Huk, Ms. Netter, or Ms. Brayer. The pregnancy ended in a miscarriage. Ms. Burgess became pregnant again in early 2006. Ms. Burgess was frequently throwing up in the washroom at work. She testified that it was common knowledge by March 2006 that she was pregnant. Ms. Burgess was first absent from work due to her second pregnancy on April 24, 2006. She spent the previous night in the hospital. Ms. Netter called her on the evening of the 24th to ask whether she would be returning to work on the 25th. Ms. Burgess told her she would not be at work. Ms. Netter testified that she did not know Ms. Burgess was pregnant but assumed she was sick.

The clinic was closed on Sundays and a staff meeting was planned for Sunday, May 7, 2006. Ms. Burgess was told by Ms. Brayer about the staff meeting. Ms. Burgess said she told Ms. Brayer that she would not be able to attend between 11:00 and 2:00 since she would be at church. Ms. Burgess is a member of the Mormon faith and regularly attends church services on Sunday. Ms. Burgess missed the staff meeting as she was attending church.

On May 11, 2006, Dr. Huk called Ms. Burgess into his office and fired her. Dr. Jacob (one of the practising dentists) testified that he met with Dr. Huk just before Dr. Huk met with Ms. Burgess. Dr. Jacob told Dr. Huk that Ms. Burgess was pregnant. Dr. Huk said that the decision to terminate her had already been made. Ms. Burgess was handed four reprimand letters when she was terminated.

The Tribunal’s decision of November 12, 2009 concluded that Ms. Burgess failed to establish a prima facie case of discrimination based on her pregnancy or religious beliefs and dismissed the complaint.

Ms. Burgess’ appealed the tribunal’s decision. She focused on the requirements necessary for her to prove a prima facie case of discrimination. She argued that the Tribunal failed to apply the appropriate test. Specifically, she argued that the Tribunal erred in requiring her to prove that the Respondent had “subjective knowledge” of the fact that she was pregnant and/or a practising Mormon in order for her to establish a prima facie case of discrimination. This was the central issue on the appeal.

The Court found that correctness was the proper standard of review when considering whether the Tribunal applied the proper legal test for a prima facie case of discrimination. The Court then turned to review several authorities from several court and tribunal decisions in the human rights context.

The Court concluded that the Tribunal appropriately incorporated an element of subjective knowledge. Specifically, it was appropriate that the Complainant prove that the employer knew or reasonably ought to have known of the existence of the protected ground (i.e., the pregnancy or the religious beliefs) in order to prove a prima facie case of discrimination. In other words, in the present case, Ms. Burgess had to show that she was pregnant at the relevant time and the Respondent was aware or ought to have reasonably been aware of her pregnancy. In this case, the Court found that the evidence did not establish that the Respondent was aware or ought to have been aware of Ms. Burgess’ pregnancy. Therefore, the Court found the Tribunal correctly concluded that Ms. Burgess failed to establish a prima facie case of discrimination on the basis of pregnancy.

The Court also reviewed the findings related to Ms. Burgess’ religious beliefs. The Court found that the evidence did not support a finding that the Respondent knew or ought to have known about Ms. Burgess’ religious observance obligations prior to the May 11, 2006 staff meeting. The Court concluded that the Tribunal was correct in its determination that Ms. Burgess failed to establish a prima facie case of discrimination based on religious observance, although for different reasons than found by the Tribunal.

The Court concluded that the reasons of the Tribunal were sufficient to meet its legal obligation and were also sufficient for the Court to discharge its appellate review function. Accordingly, the ground of appeal alleging insufficiency or deficiencies in the reasons was dismissed.

In the result, Ms. Burgess’ appeal was dismissed.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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