In Edmonton (Police Service) v Alberta (Human Rights Commission) 2026 ABKB 337 (Little, J), the Alberta Court of King’s Bench overturned (on judicial review) an earlier decision of the Alberta Human Rights Tribunal which had found the Edmonton Police Service (EPS) liable for discrimination when two of its officers deployed pepper spray against two black men.
The judicial review decision is important because of its potential impact on responsibility for liability of individuals and organizations in human rights.
I summarized the original human rights decision under appeal on May 14, 2024.
Facts
The following were some of the pertinent facts found by the ABKB:
- A police officer responded to a call of unknown trouble. When he arrived, two large black men were restraining a woman in a chaotic scene. The officer believed the smaller woman was being assaulted, and pepper sprayed the men
- It was soon revealed that the men were not the assailants, but had been attempting a civilian arrest of the woman
- The Alberta Human Rights Tribunal determined that the EPS was liable for discrimination under Section 4 of the Alberta Human Rights Act, but the individual police officers were not liable for discrimination
- EPS filed for judicial review, arguing:
- The decision that EPS was liable but the officers were not, is internally inconsistent
- The AHRC erred in its interpretation of the Moore v BC discrimination test
- The AHRC was unreasonable in placing too much weight on generalized sociological expert testimony respecting unconscious bias, where it should have placed more weight on direct evidence
Analysis / Conclusion
Justice Little rejected EPS’ argument that the AHRC had misinterpreted the Moore v BC test.
The ABKB also rejected EPS’ argument about the weight the AHRC had given the generalized sociological evidence of unconscious bias. The ABKB noted that it was not its role to re-weigh the evidence to determine if it would have arrived at the same decision, and went on to cite Section 30 (2) of the Alberta Human Rights Act, which is clear that the Tribunal determines how it receives evidence and it is “not bound by the rules of law respecting evidence in judicial proceedings.”
However, the EPS was still successful on this judicial review. The ABKB overturned the AHRC decision, finding that it was unreasonable to conclude that EPS had discriminated against the complainants but also to find the officers had not discriminated. This was some of the ABKB’s reasoning in rejecting the submissions of the AHRC:
[27] [In 2 prior AHRC decisions where individuals were added as Respondents], the reasons included that the chances of recovery against the inactive or insolvent corporations were low or non-existent such that a judgment against them “would not be a very meaningful remedy for the complainant and it would allow [the corporation] to take refuge behind the corporate shield to escape personal liability” […] and that it was the conduct of the shareholder/director of the closely held corporation that was the basis for the complaint.
[28] I do not find those “corporate veil” cases persuasive in the case at hand. Here, the complaints were dismissed as against the two employees. In a corporate situation, if no liability is imposed on an employee, there is no reason to pierce the corporate veil to impose it on the corporation.
Having found the original decision to be unreasonable on this important ground, the ABKB overturned it, which resulted in no liability for the officers or the EPS.
My Take
This judicial review decision seems well reasoned. However, it’s a bit concerning to me what impact this decision may have on the liability of companies versus individual employees:
- The Human Rights Tribunal is historically not reluctant to impose liability on a company whose employee has done something resulting in discrimination. However, the AHRT is often reluctant to impose liability directly on the employee who carried out the discriminatory act;
- I think EPS v AHRC could be read to suggest that in all cases, the primary liability under Section 4 of the Alberta Human Rights Act lies with the individual employee that caused the discrimination, and not the company they are working for. At that point, the employing company might also be liable.
I believe this decision will result in a massive increase in the number of individual employees being personally named as respondents in human rights complaints. I do not think this would be a good policy outcome.
Given the impact this decision could have on Alberta human rights generally, I would not be surprised if the AHRC appeals it to the Alberta Court of Appeal. If that happens, I think its likely EPS will take another crack at its argument about generalized sociological evidence. Whatever happens, if this is appealed it is likely to result in interesting and important caselaw.
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