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ABKB Gives AHRC Direction On Screening And Credibility
Shodunke v Alberta (Human Rights Commission), 2023 ABKB 260 (Eamon, J) is a new Court of King’s Bench Judicial Review decision which provided substantial guidance to the Tribunal on the scope of its proper screening function to dismiss complaints without a hearing, and the circumstances where the Tribunal’s weighing of credibility at the screening stage is inappropriate.
The Shodunke case deals with some of the technical aspects of a human rights complaint, but it is a case all Alberta human rights lawyers should be aware of.
The following are the pertinent facts summarized by the Alberta Court of King’s Bench:
- The complainant Olufeme Shodunke had filed two separate human rights complaints at different times against Paladin Security Group Ltd. The complaints were dealt with by the AHRC together
- The first complaint alleged that his employment with Paladin in a shopping mall was terminated in violation of his religious human rights. The complainant had requested to be excused from a scheduled shift, but this was refused. The complainant alleged that he had disclosed he needed to be excused for religious reasons. Paladin said he had not mentioned religious reasons, so the refusal was not discrimination
- The second complaint alleged that another Paladin security guard removed him from the same shopping mall (later) somehow in retaliation for the first complaint:
- The context is that the complainant was in the mall at some point after employment termination
- He was removed from the mall by a Paladin security guard for allegedly making unwanted sexual advances to a mall kiosk employee
- At this point in time, he had not yet made the first human rights complaint against Paladin for his termination- that was 6 months later
- His complaint was that this was “obvious” discrimination and that there was “obvious collusion” between Paladin and kiosk employee to blackmail the complainant
- The Director of the Alberta Human Rights Commission exercised its “screening function” to dismiss Mr. Shodunke’s complaints on the basis that they had “no reasonable basis” to be referred to a hearing. The Director’s reasoning for dismissing the first complaint was essentially that it preferred the evidence of Paladin’s witnesses over that of the complainant, as follows:
 Here, given the lack of corroborating witnesses that the complainant told the respondent that he required accommodation as a result of his religious belief, the statement by the respondent’s representative that the complainant never told the respondent that he required accommodation as a result of his religious belief, a statement by another of the respondent’s representative that the complainant only said he couldn’t work the shifts because he had to go to Toronto, and the fact the complainant never raised his religious belief at the time of his employment, I agree with the respondent’s claim that the complainant did not disclose his religious belief and his need for accommodation.
- The complainant appealed that dismissal to the AHRC’s Chief of Commission and Tribunals. The Chief upheld the Director’s dismissal, and agreed there was no reasonable basis to proceed to a hearing
- The complainant brought an application for judicial review of the Chief’s decision to the Court of King’s Bench on the basis that it was unreasonable for several issues, including that it resolved evidentiary conflicts on fundamental issues without a Tribunal hearing
Analysis / Conclusion
Justice Eamon of the Alberta Court of King’s Bench found that the AHRC Director’s decision on the first complaint was unreasonable, but did not interfere with the Director’s decision on the second issue.
On the first issue (the termination of employment complaint), the court noted that the complainant’s evidence “seriously” conflicted with Paladin’s evidence, on the fundamental point of whether the complainant had disclosed his need for religious accommodation before being terminated.
The court accepted that the human rights commission needs to be able to dismiss complaints that have no reasonable prospect of success prior to going to a hearing (the “screening function”). The Court noted however that screening function has limits where there is conflicting evidence. The court provided substantive and detailed guidance on when a case with conflicting evidence should be referred to a hearing, and the proper limits of the screening function where there is conflicting evidence:
 When should a case be referred to hearing where evidence conflicts? […] the Zeilke case which, with some other Commission decisions under section 26, have articulated (citing Wong) a basis for assessing cases where the evidence conflicts:
… in some cases the information gathered does not point “clearly to the veracity of one account of the facts as opposed to another,” and in those cases the Chief should refer the complaint to a full hearing, subject to other relevant considerations such as proportionality and the objects of the Act.
 […] those cases articulate the appropriate standard, considering the Court of Appeal’s comments in Wong and Callan of the limitations on a credibility assessment during the screening stage. In my view, this is a binding standard or, in the words of Vavilov, a legal constraint determined by previous case law.
 Examples where the information might clearly point to the veracity of one account as opposed to another include:
(a) the facts asserted, even if believed, do not meet the legal test for breach of the Act;
(b) the assertions are contrary to records with objective reliability;
(c) the assertions are so implausible that they are not reasonably capable of belief;
(d) the assertions are inferences that are speculation or do not reasonably follow from the proved factual underpinnings;
(e) the assertions amount to wide allegations of misconduct that are unsupported by any particulars or confirming documentation.
 In contrast, in some discrimination cases the only evidence a complainant might have is their word as to what occurred in a specific meeting or interaction. Evidence on oath or affirmation is routinely accepted in countless cases without the need of corroboration. If their version is reasonably capable of belief when compared to the record, I do not consider that it is, without more, a “bald assertion” that can be rejected as unsupported. [underline added]
Justice Eamon applied those legal principles to Mr. Shodunke’s first human rights complaint and determined that the Human Rights Commission’s decision to dismiss it without a hearing was unreasonable. His reasoning leading to this conclusion was as follows:
 In light of the foregoing, the lack of corroboration of the Applicant’s version and the Respondent having two witnesses and some supporting evidence for their statements, is not an adequate explanation at this stage or a basis to screen out a complaint. This merely describes a classic credibility contest, for determination by a Tribunal.
 […] the Court of Appeal did not contemplate such a wide credibility assessment at the screening stage. Absent a finding that the information points clearly to the veracity of the Respondent’s version, the only reasonable course is to send the matter to a Tribunal hearing where the wider credibility assessment can be made. [underlines added]
Justice Eamon then went on to consider the dismissal of the complainant’s second discrimination complaint.
Justice Eamon noted that the complainant had no actual knowledge of what the security guard’s instructions were from the employees at the mall kiosk. Therefore, the complainant had been asking the AHRC to infer that his removal from the mall was motivated by discriminatory hate, but had no actual evidence to support that. Justice Eamon found that the AHRC’s decision to dismiss the second complaint was reasonable, noting as follows:
 The Commissioner is well placed to identify and assess stereotyping, micro-aggressions, sub-conscious bias, and the insidious nature of discrimination (Wint v Alberta (Human Rights Commission), 2022 ABQB 87 (CanLII), 2022 ABKB 87 at paras 35-40).
 There is nothing to indicate the Commissioner did not understand or ignore the Applicant’s concerns and experiences. It is plain from the reasons that the Commissioner must have rejected that the claimed inferences of malice, bad faith, fraud, discrimination and retaliation could arise from any underlying fact or circumstance in this case.
 The second complaint falls within the types of bald assertions which are appropriate for summary determination under section 26 of the Act. The Applicant has not persuaded me that it was unreasonable for the Commissioner to reject this complaint on the basis that the security guards at the mall were sincerely responding to a complaint, without any instructions arising from the Applicant’s termination, without collusion with the kiosk employee, and without prohibited grounds being a factor in their actions.
I am not surprised by the Shodunke decision.
When I last reviewed the caselaw on subject of the AHRC’s screening function, I found that quite a few of the prior decisions seemed to endorse more expansive weighing of credibility at the screening stage than I would have expected. Some of those prior cases are regularly interpreted by the AHRC to allow them to dismiss a complaint at the screening phase because, for example, there is not much documentary evidence, or because the only evidence of something is verbal. I have always questioned whether dismissing at that phase is reasonable in such circumstances, because:
- In Alberta human rights cases, quite often there has been no exchange of relevant and material documents between the parties when the screening phase occurs. The AHRC may have investigated, but the complainant themselves may have a limited ability to put together their case from documentary evidence;
- There is nothing wrong with evidence that is not in a document. There are many thousand human rights decisions and civil litigation decisions that have as the most important piece of evidence a verbal statement, whether that be in an affidavit or stated in open court (viva voce). There is no doubt that documentary evidence is critical, and that where a document corroborates something verbal it can make the verbal evidence more credible or reliable, but that does not mean verbal evidence cannot stand without documentary evidence.
The AHRC’s practice (sometimes) of dismissing a complaint at the screening stage where the most important evidence is verbal and there is limited ability to test that evidence has always seemed odd to me. The practice surely filters out some really weak complaints, which is good, but it surely also filters out some legitimate ones.
As a believer in the greater ability of a decision-maker in a full hearing to determine the truth of a matter, Shodunke makes sense to me. It keeps the AHRC’s important and broad screening function intact without giving the AHRC unlimited discretion to dismiss at that phase.
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