Court of Appeal Decision of the Week

Appealing from an Appeal of an Appeal to the Court of Appeal: What’s the Standard of Review?

Case: Al-Ghamdi v. Peace Country Health Region, 2017 ABCA 31 (CanLII)

Keywords: Alberta Human Rights Commission; Alberta Human Rights Act, RSA 2000 C.A.-25.5; Discrimination; Standard of Review

Synopsis:

Dr. Al-Ghamdi, an orthopedic surgeon, complains to the Alberta Human Rights Commission that Peace Country Health Region discriminated against him on the grounds of race, colour, ancestry, place of origin, and age.

After reviewing Dr. Al-Ghamdi’s complaint, reviewing Peace Country Health Region’s written response, and interviewing 11 witnesses, an investigator appointed to make recommendations to the Director of the Alberta Human Rights Commission concludes there is no reasonable basis to proceed to a Tribunal hearing.

Pursuant to s. 22(1) of the Alberta Human Rights Act, RSA 2000 C.A.-25.5, the Director dismisses Dr. Al-Ghamdi’s complaint. The Chief Commissioner upholds the dismissal after Dr. Al-Ghamdi asks for further review. Relying on s. 35 of the Alberta Human Rights Act, Dr. Al-Ghamdi then asks for judicial review of the Chief Commissioner’s decision in the Court of Queen’s Bench.

Dr. Al-Ghamdi’s position is threefold: that the process was unfair, that there is a reasonable apprehension of bias concerning the Chief Commissioner and others connected to the Alberta Human Rights Commission, and that the decision is unreasonable. (See Al-Ghamdi v Peace Country Health Region, 2015 ABQB 155 (CanLII) at para. 2). Topolniski J.C.Q.B.A. dismisses the application for judicial review.

On appeal, Dr. Al-Ghamdi submits the Court of Appeal’s intervention is warranted on the following bases:

  • the Chambers Judge erred in finding the Chief Commissioner acted reasonably in dismissing his complaint.
  • the Chambers Judge erred in excluding affidavits tendered by the appellant and in refusing to allow the appellant to cross-examine a number of Hospital staff.

The Court of Appeal dismisses Dr. Al-Ghambi’s appeal, finds the Alberta Human Rights Commission’s investigations to be both thorough and comprehensive; the Chambers Judge committed no discernable error of law.

Importance:

Pursuant to Dunsmuir at para. 54, there are two possible standards of review applicable to the substantive merits of the Chief Commissioner’s decision: correctness and reasonableness. If the question before the Chief Commissioner is one of fact or mixed fact and law, the standard is reasonableness. If, on the other hand, it is a question of law outside the tribunal’s expertise, the standard is correctness.

For the Chambers Judge, reviewing the Chief Commissioner’s decision involves an assessment of the investigation materials that were before both the Director and Chief Commissioner to determine whether there really was enough there to form a reasonable basis for proceeding to a hearing.

Topolniski J.C.Q.B.A was satisfied the questions posed by Dr. Al-Ghamdi to the Chief Commissioner were questions of fact or mixed fact and law attracting a reasonableness standard. (See Al-Ghamdi v Peace Country Health Region, 2015 ABQB 155 (CanLII) at para. 26).

Citing Walsh v. Mobil, 2008 ABCA 268 (CanLII) at 43, the Court of Appeal noted its role involved determining whether the reviewing judge’s decision (in this case the decision of Topolniski J.C.Q.B.A. with respect to the Chief Commissioner’s decision) chose and applied the correct standard of review. (See at para. 8). In other words, was the Chambers Judge correct in finding the Chief Commissioner’s decision was to be assessed on a reasonableness standard?

The Court’s discussion in Walsh v. Mobil suggests making this determination leads to one of two outcomes:

  • if the reviewing judge failed to select and apply the correct standard, the Court of Appeal must review the Chief Commissioner’s decision in light of the correct standard; and
  • if the reviewing judge chose the correct standard, the Court of Appeal’s task is to determine whether or not he/she applied the standard properly (which, for the Court of Appeal, is a question of law, reviewable on the standard of correctness).

For present purposes, the Court of Appeal referred to the language contained at s. 26(3) of the Alberta Human Rights Act, RSA 2000 C.A.-25.5 and “wealth of authority” supporting the proposition, as pointed out by the Chambers Judge below, that the decision of the Chief Commissioner is one of fact and mixed fact and law attracting a reasonableness test. (See, for example, the list of jurisprudence provided by Topolniski J.C.Q.B.A. in Al-Ghamdi v Peace Country Health Region, 2015 ABQB 155 (CanLII) at para. 26).

Since, for the Court of Appeal, the Chambers Judge chose the appropriate standard of review, the only remaining question was whether or not the standard was applied correctly. The Court of Appeal concurred with Chief Commissioner’s “thorough and comprehensive” assessment of Dr. Al-Ghambi’s case: the issues raised were essentially a product of personality and workplace conflicts rather than “…harassment, discrimination and, inter alia, inferior treatment of Muslims and visible minorities”. (See paras. 13 & 14).

Counsel for the Appellant: Dr. Mohammed Al-Ghamdi (in person)

Counsel for the Respondent Peace Country Health Region: Brent Windwick, Q.C. and Lily Nguyen (Field Law, Edmonton)

Counsel for the Respondent the Chief of the Commission & Tribunals of the Alberta Human Rights Commission: Janice Ashcroft (Alberta Human Rights Commission, Calgary)

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Posted: Wednesday, February 01, 2017