Mar 252019
 

By Gerald

The following reason is why the Alberta Human Rights Commission are dismissing complaints without investigating the legitimacy of the complaint. As well, any prima facie evidenced complaints specific to WCB are dismissed most likely on the direction of the Justice Minster and Minister in charge of the WCB;

The Alberta Human Rights Commission has put in place the Case Inventory Resolution Program in an effort to reduce a massive backlog of cases. For the past seven years the number of complaints received by the Commission has exceeded the Commission’s capacity to process them. Those unresolved complaints are carried forward into the next year resulting in a growing backlog of complaints. As a result, it can take up to 2 years for a complaint to reach the conciliation stage and approximately 4 years for a complaint to reach the investigation stage.

The Chief of the Commission, Michael Gottheil spoke on March 11, 2019 to the Canadian Bar Association Labour & Employment south section about the new program for addressing the backlog of cases at the Alberta Human Rights Commission.

The Case Inventory Resolution Program

As part of the change all complaints filed before January 1, 2019 will be placed in the Case Inventory Resolution Program, which will consist of an investigation team and a conciliation team.

  1. Investigation Team

There are currently 300 complaints in the investigation queue that have been through conciliation but were not successful in reaching a resolution and are now waiting for a Human Rights Officer to investigate.

The investigation team has been assigned to address the cases in the investigation queue. The team will consist of 4 Human Rights Officers, the Director and a Project Lead. The Human Rights Officers will be assigned 5 cases per week and the entire team will meet weekly to review the files.

The Human Rights Officers will review each case, gather additional information from the parties and may request specific information and submissions on whether the case should be dismissed or not. The parties will have 30 days to respond to the request.

Once all the material has been gathered, the Human Rights Officer will review the file and the parties submissions and discuss with the team. The Director will make a decision on whether the case should be dismissed or not.

The Chief of the Commission anticipates the 300 cases will be assessed within 4-6 months.

  1. Conciliation Team

There are currently 1200 to 1300 complaints waiting to be assigned to a conciliator to conduct conciliation.

The conciliation team has been assigned to address the cases in the conciliation queue. The team will consist of 6 Human Rights Officers, the Director and a Project Lead. The Human Rights Officers will be assigned 4 cases per week.

Initially, the Human Rights Officers will contact parties who have cases in this queue to inform them of the process, gather background information and schedule an in-person conciliation meeting 6-8 weeks down the road. Prior to the meeting the Human Rights Officer may contact the parties by phone and gather any additional evidence.

At the meeting, the conciliator will assist the parties in coming up with a resolution. If a resolution is reached, parties will sign a Memorandum of Agreement and Release. If no resolution is reached at the meeting, the conciliator will write a case summary with a recommendation to the Director. If the recommendation is to proceed to Tribunal, the conciliator will be encouraged to make a non-binding settlement recommendation.

The Director will then decide whether the case is dismissed or sent to Tribunal.

The Respondent will also be encouraged to make a settlement offer at this stage. The Respondent can request that the Director exercise their discretion under section 22 of the Alberta Human Rights Act to discontinue if the Complainant does not accept the offer.

The Chief of the Commission anticipates the 1200 – 1300 cases will be dealt with in 12-18 months and the conciliation team will likely start in May.

More information on the Alberta Human Rights Commission’s Case Inventory Resolution Program can be found here.

Mar 142019
 

By Gerald

Interesting that the Alberta Human Rights Commission would defer to any decision made by WCB or the Appeals Commission!

In Kebede v. SGS Canada Inc., 2019 AHRC 3the Alberta Human Rights Tribunal (the “Tribunal”) recently dismissed a portion of a human rights complaint on the grounds that the issue was already decided by the Alberta Workers’ Compensation Board (“WCB”).

The Complainant filed a human rights complaint asserting, among other things, that he suffered racially-based harassment and discrimination during the course of his employment with SGS Canada Inc. (“SGS”).

The Complainant sought compensation under the Workers’ Compensation Act for psychological injury that he alleged he suffered as a result of the same alleged racially motivated harassment and discrimination. The Complainant’s claim for compensation was denied by the WCB as it found no objective confirmation of work-related events or stressors that supported the Complainant suffering from “a chronic onset psychological injury arising out of and occurring during the course of employment.”

SGS sought the dismissal of the human rights complaint on the basis of the WCB’s denial of the Complainant’s WCB claim.

The Tribunal found that it could exercise its discretion to dismiss a portion of the complaint on the basis of issue estoppel as it found that:

  1. the same question was decided by the WCB;
  2. WCB’s decision was final; and
  3. the parties to the WCB’s decision were the same as in the human rights complaint.

The Tribunal exercised its discretion to dismiss the racially-based harassment and discrimination portion of the complaint as the Tribunal found that dismissing that portion of the complaint would not create unfairness. Specifically, the Tribunal noted that there was no new evidence or evidence of unfairness in the adjudication of the WCB claim.

This decision serves as a useful reminder of the Alberta Human Rights Commission’s powers under s.22 of the Alberta Human Rights Act to, at any time, refuse to accept a complaint on the basis that the complaint is one that: (i) could or should more appropriately be dealt with; (ii) has already been dealt with; or (iii) is scheduled to be heard; in another forum or under another Act.

This provision of the Alberta Human Rights Act may be particularly helpful to employers given the current delay in Alberta human rights matters proceeding to a hearing and the likelihood that another forum will issue a decision well in advance of an adjudication of the human rights matter. Further, dual proceedings may become more frequent given the increasing overlap between WCB and human rights matters, the increase in harassment related concerns in the workplace, and the added jurisdiction of Alberta Occupational Health and Safety over harassment in the workplace.