Patenaude v His Majesty the King in Right of Alberta (Environment and Protected Areas), 2025 AHRC 86 (CanLII) was a request for review to the Chief of Commission and Tribunals of a Direction’s decision to dismiss a human rights complaint.
This case is important because the reasoning suggests a greater willingness of the Alberta Human Rights Commission and Tribunal to decline jurisdiction over matters that could be dealt with under a collective agreement (i.e. with the union), even if they have not been dealt with there.
Facts
The following are the pertinent facts of the case:
- The Complainant was employed by the Respondent, His Majesty the King in Right of Alberta, the correct legal name of the Government of Alberta. He was employed in the Environment and Protected Areas division.
- Many employees of the Government of Alberta are unionized and are members of the union Alberta Union of Provincial Employees (“AUPE”).
- The employment relationship between the Complainant and the Respondent was governed by a Collective Agreement between the Complainant, Respondent and AUPE.
- The Collective Agreement contained the following provisions regarding Harassment and Discrimination:
50.01 The Employer, Union and Employees are committed to having a safe
and respectful workplace where discrimination, harassment and bullying will
not be tolerated.
50.02 There shall be no discrimination, harassment, coercion or interference
by either party in respect of an Employee by reason of race, religious beliefs,
color, gender, gender identity, gender expression, physical disability, mental
disability, age, ancestry, place of origin, marital status, source of income,
family status, sexual orientation, political affiliation of that Employee or any
other protected ground of discrimination included in the Alberta Human
Rights Act.
- The Collective Agreement also included a grievance process, which permitted an employee to present “any contravention or alleged contravention of [the Collective Agreement]” as a grievance.
- The Complainant filed a complaint directly with the Alberta Human Rights Commission (the “AHRC”). The Complainant alleged that the Respondent discriminated against him in employment practices, contrary to Section 7 of the Alberta Human Rights Act (the “Act”), when it engaged in the following conduct:
- Delayed issuing him a disabled parking pass and employee identification badge;
- Failed to compensate him properly for two pay periods; and
- Asked him to undergo an Independent Medical Examination.
(altogether, the “Complaint”).
- The Complainant did not file a grievance pursuant to the Collective Agreement.
- The Director of the Commission had reviewed the Complaint, response and written submissions of the parties before dismissing the Complaint as having no reasonable prospect of success.
- The Complainant filed a request for review of the Director’s decision. The result of the review is what is summarized here.
Analysis/ Conclusion
The Director’s decision was upheld on two grounds:
- The Complaint did not have a reasonable prospect of success; and
- The Complaint should have been dealt with in a more appropriate forum.
The Complaint did not have a reasonable prospect of success
The Commission was of the position that the Complainant failed to demonstrate that he had experienced adverse employment-related consequence related to his physical and mental disability:
- There was no adverse employment related consequence as a result of the Complainant’s failure to obtain an IME: the Complainant continued to be employed by the Respondent and was not subject to discipline for failing to obtain an IME;
- No evidence was provided to support an inference that the payroll issue was connected to the Complainant’s refusal to obtain an IME; and
- The delay in the Complainant obtaining a disabled parking and an employee identification badge was due to a combination of issues, including the Complainants own actions.
The Complaint should have been dealt with in a more appropriate forum
The Act affords the Director broad discretion to avoid duplicative proceedings, as such, a complaint can be dismissed if it could be more appropriately dealt with in another forum or under another Act.
In determining whether the AHRC is the proper forum, the question asked is whether the complaint before it “is being, has been, will be or should be more appropriately dealt with in another forum”.
The Tribunal relied on Grewal v Sofina Foods Inc., 2023 AHRC 46 (Grewal), in arriving at its decision, which had held as follows:
…where human rights issues arise out of a dispute under a collective agreement
that permits adjudication of human rights issues and where the complainant
filed a grievance, the screening decisions should seriously consider the
dismissal discretion under sections 21(1)(a)(iv) or 21(2)(iii) of the Act because
the complaint is being, has been, will be or should be more appropriately dealt
with in another forum or under another Act. In short, where there is a collective
agreement that addresses human rights issues, grievance arbitration will usually
be the more appropriate forum.
Exceptions to that approach will be rare and only in the clearest of cases where
the interests of justice demand it. This respects the judicial preference of labour
arbitration as the primary dispute resolution mechanism for these issues,
ensures efficient use of resources, supports principles of finality, and avoids
inconsistent results from duplicity of proceedings.[9]
The Tribunal found it was not the proper forum to hear the Complaint, for the following reasons:
- The Complainant was a unionized employee, whose employment was governed by a collective agreement. The Collective Agreement contained a grievance arbitration process and other workplace protections;
- The Complainant had access to union Representation during the course of his employment; and
- Absent any exceptional circumstances where the interests of justice demand that the AHRC become involved, the grievance arbitration process is to be utilized should it be available to complainants.
In the present circumstances, provided the Complainant could have filed a grievance outlining the same issues as the Complaint, lead the Commission to determine that the AHRC was not the proper forum, rather, the grievance process (via the Collective Agreement).
My Take
This decision indicates that the AHRC will not accept complaints where the complainant’s employment is governed by a collective agreement containing a grievance procedure and discrimination provisions.
The Alberta Human Rights Act does allow unionized individuals to file human rights complaints on their own in some cases, but this decision is a bit more support for the Tribunal to refuse jurisdiction by default where it could have been dealt with elsewhere. This is part of an apparent gradual shift in the AHRC position on concurrent jurisdiction.
While on paper, a collective agreement provides unionized employees recourse should they experience discrimination in the workplace, in practice, the terms of the collective agreement are not always utilized. Ultimately, it is up to the union to decide whether a grievance will be filed and to what lengths it will be advanced. Failing that, in some cases the only recourse is a Duty of Fair Representation complaint, which is a very limited remedy for employees. Respectfully, it seems like an unfortunate legal fiction to me that another forum is considered available just by virtue of a collective agreement, when the fair and proper application of same by the union is far from guaranteed.
A legislative solution to the jurisdictional overlap that would not compromise the Alberta Human Rights Commission’s autonomy and discretion to decline jurisdiction, would be to create a statutory guarantee under the Alberta Labour Relations Code that unionized employees can bring individual human rights complaints in front of the Alberta Labour Relations Board by utilizing the Alberta Human Rights Act, on their own or with counsel, even where the union has declined to do so. And to give them 1 year to do so, which is what all non-unionized employees are currently allowed. There could even be provisions allowing the union a right of participation or even right of first refusal over representation. A change along these lines could resolve a great many jurisdictional challenges without harming the valid human rights interests of individuals who may not have meaningful recourse.
