In Haynes v Alberta (Human Rights Commission and Tribunal), 2026 ABKB 575 [Haynes] the Court of King’s Bench took a closer look at the discretion held by the Director of the Commission and the Chief of the Commission and Tribunals, and it provided further clarity on a complainant’s ability to proceed before the Tribunal when they have other more appropriate forums available for resolution.
This case is important because it is often unclear whether the Alberta Human Rights Commission will have jurisdiction to hear a complaint involving a unionized employee.
Facts
Dr. Haynes was a casework supervisor with the Alberta Crown Prosecution Service in the Department of Children and Family Services. She had taken a medical leave on June 24, 2021 for a psychological injury following two serious incidents in the workplace. During a call on August 9, 2022 with her supervisor in preparation for her return to work, Dr. Haynes was advised that she would not be returning to her previous role, as her replacement had been made permanent. There was disagreement between the parties over whether Dr. Haynes was also informed that she would be reassigned to a new work site.
On August 30, 2022, Dr. Haynes filed a human rights complaint against the Crown. She claimed she had been discriminated against in the protected area of employment based on her age, gender, mental disability, and race. She sought reinstatement to her previous position, compensation for her pain and suffering, and an order preventing the Crown from discriminating against her further.
Dr. Haynes was a unionized employee, and a labour grievance had also been submitted by AUPE on her behalf following her allegations of discrimination. The grievance was not resolved at the first two levels of the procedure outlined in the collective agreement, and it was pending resolution at arbitration but no hearing had been scheduled.
In response to the human rights complaint, the Crown asked that the Commission dismiss the complaint as Dr. Haynes had another forum available to resolve her legal issues. Alternatively, the Crown requested that the complaint be deferred until the grievance had been resolved.
As in the normal course, the human rights complaint was eventually referred to conciliation some time later, but it did not proceed. On September 7, 2023, the Commission requested further information from the parties in order to determine whether the Director should dismiss the complaint pursuant to section 21 of the Act, as requested by the Crown.
On April 16, 2024, AUPE decided to withdraw Dr. Hayne’s grievance rather than take it to arbitration. Dr. Haynes’ ability to file a duty of fair representation complaint with the Alberta Labour Relations Board against AUPE expired on July 16, 2024. At that time, Dr. Haynes was under the impression that the Commission was aware of the dual proceedings and was permitting her complaint to proceed concurrently with the AUPE grievance. As such, she did not file a duty of fair representation complaint against AUPE.
The Commission requested further information from the parties on December 5, 2024, and they provided additional information early in 2025. The Director reviewed the entire record and made a decision on the complaint pursuant to section 21 of the Act.
The relevant portions of section 21 of the Act state:
Director’s powers and duties re complaint
21(1) If the Commission receives a complaint made in accordance with section 20 and the bylaws, the director may at any time
- Dismiss the complaint, in whole or in part, if the director determines that he complaint or part of the complaint
- Is without merit,
- Was made in bad faith for an improper purpose or motive.
- Has no reasonable prospect of success, or
- Is a complaint or part of a complaint that is being, has been, will be or should be more appropriately dealt with in another forum or under another Act,
- Attempt to effect a settlement of the complaint by one or more of the following means:
- Conciliation;
- The appointment of a person to investigate the complaint, or
- Refer the complaint to the Chief of the Commission and Tribunals for resolution by a human rights tribunal.
(2) For greater certainty, the director may at any time
(a) refuse to accept or dismiss a complaint or part of a complaint that
(i) is not within the jurisdiction of the Act,
(ii) is not in accordance with the Act of the bylaws,
- Is being, has been, will be or should be more appropriately dealt with in another forum or under another Act, and
(b) accept a complaint or part of a complaint referred to in subsection (1)(a)(iv) pending the outcome of the matter in the other forum or under the other Act.
If the Director dismisses a complaint under section 21 of the Act, the complainant has 30 days to appeal the dismissal to the Chief of the Commission and the Tribunals (the “Chief”) under section 26 of the Act. On appeal, the Chief conducts a de novo review of the record before the Director and determines if the complaint should be dismissed or referred to a hearing. A decision by the Chief can be sent to the Court of King’s Bench of Alberta for judicial review.
On March 27, 2025, the Director dismissed Dr. Haynes’ complaint on the basis that it had no reasonable prospect of success, as per subsection 21(1)(a)(iii) of the Act. It was held that even assuming the facts alleged by Dr. Haynes were true, the evidence showed that Dr. Haynes had not been terminated but was instead being transferred to a different worksite, which was not discriminatory and within the Crown’s discretion as an employer to do. There was no evidence that Dr. Haynes’ role was being abolished altogether, that she was going to be placed in a lesser role, or that she would not be provided with an equivalent position elsewhere. The Director did not consider whether the AUPE grievance was the more appropriate forum for the complaint, as it had previously permitted the complaint to proceed concurrently with the grievance process.
Appeal to the Chief
Dr. Haynes appealed the Director’s decision to the Chief on April 17, 2025. The Chief upheld the Director’s decision to dismiss the complaint not only because there was no reasonable prospect of success, but also because the complaint had been or should have been more appropriately dealt with in another forum, i.e., the AUPE grievance. The Chief held that it did not matter how far the union had taken the grievance. All that mattered was that Dr. Haynes as a unionized employee had access to another process that was suitable for resolving her employment-related issues. The Chief noted that in some instances the interests of justice would permit two proceedings to overlap, but not in Dr. Haynes’ case.
The following principles guided the Chief’s decision that Dr. Haynes’ complaint had no reasonable prospect of success: (a) the key question for consideration is whether there is a genuine issue that needs a hearing for resolution; (b) if a complaint has some chance of success it should go on to a hearing; (c) in analyzing whether a reasonable prospect of success exists, the Chief must accept the allegations in the complaint as being true, except where the allegations are speculative, made based on assumptions, patently ridiculous, or cannot be proven; and (d) the evidence provided must move the allegations from conjecture to reality.
The Chief concluded that the Crown had completed a workplace reorganization that had affected many other employees besides Dr. Haynes. She also concluded that there was evidence Dr. Haynes had been accommodated during her medical leave and that the Crown had been prepared to accommodate her upon her return from leave. It was determined that although union grievance process had been frustrating for Dr. Haynes, that fact alone did not justify sending her complaint to the Tribunal for a hearing.
Analysis / Conclusion
Judicial Review at King’s Bench
Dr. Haynes’ filed an application for judicial review of the Chief’s decision with the Court of King’s Bench of Alberta, asking that the Chief’s decision be quashed on the basis that it was unreasonable to for the Commission to defer to the grievance process, that the Chief failed to reasonably assess the evidence before her, and that the decision was procedurally unfair.
As per the Supreme Court of Canada’s guidance in Vavilov, Justice Brookes confirmed that the applicable standard of review was reasonableness and that deference should be given to the Chief in interpreting the Act. The reasonableness standard of review requires assessing a decision for two types of fundamental flaws: (a) a failure of rationality that is internal to the reasoning process outlined in the decision, and (b) where there decision cannot be supported based on the facts or law that bear on it. These categories are not required to be outlined in a reviewing court’s decision but rather provide guidance on the types of issues and errors to look out for. Ultimately, the reviewing court is required to consider whether the decision is based on an internally coherent and rational chain of analysis, and the decision is justified with respect to the facts and law before the decision-maker below, all while giving appropriate deference to the decision-maker.
The majority of Justice Brookes’ analysis was focused on the issue of the dismissal on the basis that the AUPE grievance process was the more appropriate forum for Dr. Haynes’ complaint. The main issue was whether it was reasonable for the Chief to conclude that the grievance process was the more appropriate forum, and that no exceptional circumstances existed that would allow the complaint to proceed pursuant to section 21(1)(a)(iv) of the Act. The Director had previously permitted the union grievance process and the complaint before the Commission to proceed concurrently, but the Chief had determined that the union grievance process was the more appropriate forum.
Justice Brookes concluded that it was reasonable for Dr. Haynes to rely on the Director’s earlier position that the complaint and grievance could proceed concurrently. Unfortunately, as a result of her reliance on this position, she did not file a duty of fair representation complaint against AUPE with the Alberta Labour Relations Board when AUPE abandoned her grievance on April 16, 2024. Dr. Haynes believed that she still had the Commission available as a forum for resolution based on the Director’s earlier position. As such, Justice Brookes held that it was unreasonable for the Chief to later change course and dismiss the complaint because it should have been more appropriately dealt with in the grievance process. This new change in direction midway through the complaint process was unfair, as it left Dr. Haynes with no viable alternative for recourse. Dr. Haynes had not pursued a duty of fair representation complaint because of the representations made by the Director, and the interests of justice required that she be permitted to proceed with her complaint through the Commission.
On the issue of there being no reasonable prospect of success, Dr. Haynes argued that the differing versions of events regarding the key phone call with her supervisor on August 9, 2022 raised credibility issues and a hearing was required in order to resolve the conflicting versions of events. Justice Brookes rejected this argument and stated that a hearing is not needed in every instance where there are concerns about witness credibility. The Court held that the quality of the evidence provided needed to be assessed, and the decision-maker was permitted to make findings of credibility based on the quality of evidence. In Dr. Haynes’ case, regardless of what was discussed during the August 9, 2022 phone call, the evidence was clear that there had been an organization-wide reorganization, and that she was not being singled out for changes to her role. It was also clear on the evidence available that the crown was prepared to accommodate her by placing her in an equivalent position upon her return to work. As such, Justice Brookes concluded that the Chief’s decision to dismiss Dr. Haynes’ complaint on the basis of there being no reasonable prospect of success was reasonable.
Finally, on the issue of there being a lack of procedural fairness, Justice Brookes concluded that there was no evidence to support a lack of procedural fairness or bias as alleged by Dr. Haynes.
The Act allows for the dismissal of a complaint where only one of the screening grounds has been met. As such, although Justice Brookes found the Chief’s dismissal on the basis that there had been a more appropriate forum to be unreasonable, the decision was ultimately upheld because the dismissal on the basis of there being no reasonable prospect of success was reasonable.
My Take
This case is very important because it provides key guidance on circumstances that will exempt a complaint from dismissal on the basis that there is another more appropriate forum under section 21 of the Act. In many instances, unionized employees often file a human rights complaint and a union grievance because they are not sure which forum will be able to resolve the matter. While grievance proceedings can move quite quickly, the Commission’s process moves much more slowly. As such, as in Dr. Haynes’ situation, it is often the case that a complainant’s grievance process ends unsatisfactorily before it is known whether the Director of the Commission will dismiss the complaint on its merits or refer it to a hearing.
In instances where the Commission has been made aware of the concurrent grievance process or alternate forum and permits the complaint to proceed concurrently, the Haynes case can now be relied on as authority that a Director’s dismissal at a later date on the basis that a more appropriate forum existed will be unreasonable if it is no longer feasible for the complainant to proceed with that other forum due to the Director’s earlier position.
However, counsel should be cautious in relying on Haynes where there has been no clear directive from the Commission that both processes can proceed concurrently. A duty of fair representation complaint must be filed within 90 days of the alleged breach of the duty of fair representation, and if a unionized employee’s grievance is abandoned by the union before it is resolved and before the Commission has weighed in on the concurrent handling of the complaint before the Commission, it would be prudent to file a duty of fair representation complaint out of an abundance of caution to ensure that all avenues for recourse remain open.
This blog post is an original work of Bow River Law LLP. It was first published on Bow River Law’s website blog.
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