Porter v. Etoileskin Medical Aesthetics and Laser Clinic Ltd. et. al, 2026 AHRC 22 is a recent interim decision from the Alberta Human Rights Tribunal.
The complainant alleged that her former employer had discriminated against her in the area of employment due to her disability. The respondent corporation was dissolved in May 2022 and the complainant was seeking to add the former director and 50% shareholder of the corporation, Mr. Basit as a respondent to the complaint.
Analysis / Conclusion
The Member of the Commission hearing the application, Jessica Gill (“Ms. Gill”), identified that under the Human Rights Act (the “Act”) and the Bylaws of the Alberta Human Rights Commission a party could be added to a complaint so long as that party had received notice and had an opportunity to be heard.
When deciding whether to add a party, the crucial considerations are:
- Whether there are facts alleged that, if proven, could support a finding that the proposed respondent violated the complainant’s rights; and
- Whether the addition of the proposed respondent would cause substantial prejudice to the respondent’s ability to make a full answer and defence to the allegations, and that such prejudice could not be alleviated by further procedural orders.
In respect of the first point, Ms. Gill held that the appropriate standard did not involve determining the merits of the complaint, but simply to ask if there were facts that could support adding Mr. Basit. Because Mr. Basit was a decision-maker regarding the complainant’s workplace accommodations and communicated with the WCB regarding the complainant’s accommodation, there were facts that could support a finding that Mr. Basit had violated the complainant’s rights.
Mr. Basit did not raise any prejudice regarding his ability to answer the complaint if he were added as a respondent. Furthermore, he had been communicating directly with the Tribunal so Ms. Gill found that Mr. Basit being added as a respondent would not cause prejudice to his ability to answer the complaint.
Ms. Gill also concluded that the language in s. 7 of the Act stating that “[n]o employer shall…discriminate against any person…” should be interpreted generously in the human rights context and that liability under s. 7 of the Act could be extended to directors or officers who were the directing mind of a corporation. That would particularly be the case where the corporation is dissolved and the complainant would not have any effective recourse unless an officer or director was also a respondent.
Ms. Gill also declined Mr. Basit’s request to refer a question of law to the Alberta Court of King’s Bench on the issue of separate corporate personality between Mr. Basit and the corporate respondent. Ms. Gill noted that the Court had recognized there could be “rare and exceptional circumstances” where an interim decision would be subject to judicial review before a tribunal issues its final decision, but this was not such a case. The issue could be raised after the Tribunal’s final decision was made with the benefit of an adequate evidentiary record.
My Take
This decision highlights the long-standing principle that remedial legislation (legislation that establish a process to enforce rights or correct injuries) should be interpreted broadly.
There would not have been any way for the complainant to enforce her rights against a dissolved company, and there was a possibility that Mr. Basit could also be liable as the complainant’s “employer”, so the Tribunal allowed Mr. Basit to be added as a respondent.
This decision does not necessarily mean that the complaint will ultimately be successful, only that the complaint against Mr. Basit should be allowed to move forward to a hearing. If, after the Tribunal made a decision with the benefit of both sides having provided all of their evidence, Mr. Basit disagreed with the Tribunal’s decision he would be able to seek judicial review of that decision. That could include asking the Court to review whether the Tribunal’s decision to add Mr. Basit as a respondent was appropriate.
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