AHRC Guidance On Screening Function and Post-Complaint Conduct

Gittins v Peddie Roofing & Waterproofing Ltd., 2023 AHRC 103 (Oviatt) involves the appeal by a complainant employee of the decision of the Director of the Alberta Human Rights Commission (“AHRC”) to dismiss the Employee’s human rights complaint against his Employer. On appeal, the AHRC Tribunal partially overturned the Director’s dismissal of the complaint thus allowing the Employee’s complaint to proceed in part.

This decision provides insight on several issues including the preliminary screening function taken by the Director, the right of a complainant to appeal the decision of the Director, and the employer’s duty to accommodate an employee’s disability.

Facts

• The Employee worked for the Employer as a roofer.
• As a roofer, it was a safety sensitive position. The employee has a relevant medical history including a prior motor vehicle accident and two workplace injuries.
• Late 2019 the Employee advised the Employer he was not fit to work, and the Employer took the employee off work duties and sent the Employee for a medical examination. In addition, the Employee provided medical evidence that he has a permanent medical restriction from working above 3 feet.
• The Employee and Employer disagreed on the Employer’s duty to accommodate, and the Employer took the position it could not accommodate without undue hardship.
• Further, the Employee alleged the Employer threatened him in a phone conversation as retaliation for the human rights complaint.
• The Employee filed a complaint to the AHRC alleging discrimination based on a mental and physical disability (Section 7 of the Alberta Human Rights Act (“Act”)) and for retaliation for filing the complaint (Section 10 of the Act).
• The AHRC Director dismissed both the complaint of discrimination and the allegation of retaliation.
• The complainant employee appealed.

Analysis / Conclusion

Chief of Commission and Tribunals Kathryn Oviatt first reviewed the “Screening Function” of the AHRC when initially assessing a complaint. The Chief of the AHRC may review and decide on the decision of the Director to dismiss a complaint. A complaint may be dismissed by the Chief or the Director if the complaint is “without merit” or with the lower standard of “no reasonable prospect of success”. The Tribunal noted that the proper test to be applied by the Chief/Director is the reasonable prospect of success standard, using the parameters summarized as:

• there is a genuine issue to be resolved by a hearing,
• there is some chance of success at a hearing,
• the allegations of fact are to be accepted as true except if based on assumptions or speculations or are patently ridiculous, and
• the evidence takes the complaint out of the realm of conjecture.

The Tribunal first addressed the allegations of discrimination. The Tribunal held the employer-requested medical examination was not discriminatory as the purpose was not an invasion of privacy but rather for obtaining medical evidence as per the employer’s duty to accommodate. An employer has a legitimate need for sufficient evidence to address the duty to accommodate. As such, there was no reasonable prospect of success that the request for a medical examination was discriminatory.

The Tribunal then addressed the submission by the Employer that events following the filing of a complaint should not be considered by the Tribunal. The employer argued that the Tribunal ought to only consider events leading up to the date the complaint is filed, pursuant to Cunin v Alberta (Human Rights Commission) 2019 ABQB 578 (“Cunin”).

The tribunal weighed the reasons for not allowing post-complaint conduct to be considered. The limitation period for a human rights complaint is retrospective and allegations arising more than one year before the complaint are barred from consideration, but that limitation does not extend to events after the complaint. Subsequent conduct that is “of the same nature and directly connected to the allegations of the complaint” may form part of the original complaint. The Tribunal found that overall, the facts in Cunin were distinguishable, and the court in Cunin had acknowledged that post-complaint conduct can become part of the complaint if the conduct is connected to the complaint and does not unduly cause prejudice to the opposing party. 

On that basis, post-complaint conduct was allowed to be considered in this case.

Following the medical examination, the Employee provided additional medical evidence supporting a permanent restriction from working at heights over 3 feet. The Tribunal held that the Employer failed to accommodate the Employee after receiving this information. Minimal procedural steps were taken by the Employer to explore accommodation nor were any substantive steps taken to understand the Employee’s functional limitations and the standard in place in the workplace. On this issue, the Tribunal relied on Moore v British Columbia (Education), 2012 SCC 61 (CanLII) (“Moore”) for the factors an employer may consider in assessing a duty to accommodate:

1. Has the employer investigated alternative approaches that do not have a discriminatory effect…?
   1. If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?
2. Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?
3. Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?
4. Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
5. Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles?

Further, the Tribunal referred to an employer’s efforts to accommodate as including two parts: (1) a procedural analysis, wherein the steps taken by the employer to assess accommodation is reviewed, and (2) a substantive analysis, wherein the employer considers the workplace standard and whether an alternative standard is possible. The Tribunal found that the Employer did not consider the new medical information and failed to explore possible accommodation options for the Employee. On this point, it was found there was a reasonable prospect of success at a hearing.

Lastly, the Tribunal assessed the allegation that the Employer retaliated against the Employee due to the filing of a human rights complaint contrary to Section 10 of the Act. This issue was based on an interpretation of the Act and the relative timing of making the complaint. Overall, the Tribunal applied a contextual, broad and purposeful interpretation of the Act. Based on the connection between the alleged conduct, the phone call, and the Employee’s evidence he was threatened as well as evidence of harassment, the Tribunal held there was a reasonable prospect of success the retaliation complaint would succeed.

My Take

The process for implementing accommodation is neither simple nor clear.  This decision is helpful for providing guidelines an employer may use, such as the Moore factors. What this decision shows is that the Employer did not do enough to ascertain alternatives for accommodation and accepted workplace standards without asking whether those standards are necessary or can be adjusted, without compromising safety or business productivity.

Further, this decision is a reminder that an employee has a right to appeal a decision during the screening process. A negative result in the screening process is not the end of the line.  The standard to be utilized by the Director is whether a complaint has a reasonable prospect of success at a hearing. It is a lower standard. Careful assessment of the Director’s reasoning may reveal a basis for appeal.

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