JD v City of Calgary, 2024 AHRC 49 (K Scott), is an Alberta human rights interim decision dealing with the Human Rights Tribunal’s own accommodations of complainants during hearings.
This case is important in Alberta because there are not many cases dealing with the Commission’s own accommodation process.
Facts
The following were the facts summarized by the AHRT:
- The complainant requested the following accommodations for his human rights tribunal hearing:
- Recording of the tribunal proceedings for the purpose of a memory aid
- Full or hybrid option of his attendance in-person during the hearing
- Frequent breaks as needed
- Assistance of an aid [Mrs. D] who understands his limitations and support needs
- The complainant provided medical information which indicated the following
- He requires prompts and visual cues to support communication such as having someone write questions down for him so that he can read the question and respond
- He is not always aware of his PTSD triggers and may require a support person [Mrs. D] to advocate when he is experiencing a PTSD response
- He requires a break every 10 minutes, from 30 seconds to 10 minutes in duration, to change position and refocus due to the physical discomfort he experiences in a static or sedentary position
- He requires access to his support person for in-person dialogue to reduce distraction that comes with virtual communication
Analysis / Conclusion
The AHRT allowed the following accommodations:
- JD was allowed to have a support person
- JD was allowed to have frequent breaks
The AHRT declined JD’s request to record the proceedings, noting as follows:
[7] Tribunal proceedings are recorded for the sole purpose of creating a record of the proceeding for the Court in the event of an appeal. To support the informality and efficiency of the hearing, the Tribunal does not make these recordings available to the parties, and the Tribunal’s typical practice is to direct that the proceedings may not be recorded by the parties or others present at the hearing.
[8] That said, the complainant (or a support person) is entitled to take notes of the proceedings, which the complainant could then reference to aid his memory in his questioning of other witnesses and/or presenting his argument (if any).
The AHRT noted that its hearings are electronic (virtual) unless:
- A party can establish that in-person is required for accommodation (i.e. disability), or
- The Tribunal finds that an electronic hearing will result in an unfair hearing, or
- The Tribunal finds that a different hearing format (i.e. written or in-person) would be more efficient to resolve the complaint while preserving fairness
In this case, both parties had consented to proceeding in-person. The AHRT noted that it is not bound by an agreement between the parties, but the agreement was relevant.
The Tribunal found that that an in person hearing was appropriate in this case, as follows:
[15] […] the Tribunal is satisfied that a virtual hearing is not appropriate for a number of reasons. It will impair the complainant’s ability to participate effectively in the hearing due to his difficulty communicating virtually. Some of the accommodations required (for example, the assistance of a support person; frequent, short movement breaks) will be difficult to manage fairly in a virtual setting.
My Take
Some tribunals create recordings/ transcripts, some do not. For example, the Alberta Labour Relations Board does not generally create recordings or transcripts, which can make judicial review challenging. Some tribunals that create them make them available prior to a judicial review, but most do not.
That said, I was personally surprised to see the AHRT refuse to provide recordings or transcripts where someone has medical information supporting that it would be beneficial for them in the hearing.
In any event, this case should give some guidance to practitioners and complainants about the likelihood that the AHRT is going to make recordings or transcripts available prior to a judicial review of an AHRT decision. In short, its unlikely.
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