In Nielsen v Sparks, 2026 AHRC 4, the Alberta Human Rights Tribunal found that an individual, S, had breached Section 10(2) of the AHRA by filing a human rights complaint against N’s company. Section 10(2) prohibits filing a human rights complaint against someone for frivolous or vexatious reasons and with malicious intent.
This case is important because the meaning and application of this section and its scope are important questions in human rights, and this seems to be the first decision of the AHRT actually considering this section substantively.
Facts
The following were some of the pertinent facts summarized by the Alberta Human Rights Tribunal:
- S filed a human rights complaint against N’s company which alleged that N was his employer and that he had been coerced to engage in a personal relationship with N to maintain his employment status (the “S Complaint”)
- The S Complaint was dismissed by the human rights director as having no reasonable prospect of success
- N then brought this complaint against Sparks under Section 10(2) of the Alberta Human Rights Act, alleging that the S Complaint was frivolous and vexatious and had been filed with malicious intent (the “N Complaint”)
- S was not responsive to the AHRT’s correspondence or directions to provide submissions
- The hearing proceeded by affidavit evidence of N and one other witness, Z. There does not appear to have been any evidence submitted by S
- The evidence provided by the complainant N, which was unchallenged (because S did not participate), was as follows:
- N had been in a romantic relationship with S for almost 2 years. It ended when N discovered S was also in a romantic relationship with someone else
- S had been a contractor of N’s company for some months which overlapped during their romantic relationship
- S had filed an employment standards complaint against N’s company for unpaid wages and vacation pay. It was dismissed, with employment standards finding the amounts had been paid and that it was a contracting relationship. Canada Revenue Agency also separately made a determination that S was self-employed
- S submitted a forged document in his employment standards complaint that looked like an offer of employment from N’s company
- S filed two separate police reports against N
- On unknown dates, S applied for government loans in N’s name which he then misappropriated. This resulted in N’s bankruptcy
- The evidence of the other witness, Z, was as follows:
- Z was in a romantic relationship with S which ended when she discovered that S was in another romantic relationship
- S informed Z that he planned to advance false claims against N as leverage towards a request for payment, and that he repeatedly said he wanted to punish N
Analysis / Conclusion
The AHRT found that the affidavit’s of S and Z were credible, reliable and consistent with the findings of employment standards and the CRA.
The AHRT provided a useful summary of the law of the rules of hearsay as applicable in Alberta Human Rights and why it was not a problem here:
[13] [Z’s] affidavit contains evidence about [S’] statements which raises potential issues of hearsay. Hearsay comprises statements put forward to prove the truth of their contents and there is no opportunity to cross-examine the declarant as to the truth of the contents. […] hearsay is admissible in evidence if it meets the criteria of a traditional hearsay exception or if it meets the criteria of necessity and reliability under the principled exception.
[14] Under section 30(2) of the Act, the Tribunal is not bound by the rules of law respecting evidence in judicial proceedings. However, hearsay is generally inadmissible because it is difficult or impossible to test the truth of the statement. In this case, [S] has elected not to challenge any of the statements set out in the affidavits before me. Therefore, it is not the case that the declarant [S] referenced can not be cross-examined, but rather that the declarant both refuses to be cross examined and does not challenge the truth of those statements.
[15] I therefore accept the evidence put forward by [N] and [Z] and find it to be credible, reliable, and consistent with findings in related matters before CRA and Employment Standards. […]
The AHRT found in favor of the complainant N, that this was a frivolous or vexatious complaint with malicious intent. Since this is the first decision on the subject in Alberta, I’ve included a robust excerpt below:
[17] Section 10(2) of the Act states: “No person shall, with malicious intent, make a complaint under this Act that is frivolous or vexatious.”
[18] Section 10(2) protects the targets of the complaints from unfounded and harassing allegations, with the restriction that such protection is only available where a complainant successfully proves that the intent behind a complaint was malicious in addition to being frivolous or vexatious. The language of 10(2) reflects that the burden on anyone making a complaint under 10(2) is higher than those who wish to argue that a complaint in civil litigation is frivolous or vexatious [underline added]
[19] From first principles, Black’s Law Dictionary defines frivolous as “[l]acking a legal basis or legal merit; manifestly insufficient as a matter or law” and vexatious suit as a “lawsuit instituted maliciously and without good grounds, meant to create trouble and expense for the party being sued.”
[20] In Hill v. Church of Scientology of Toronto (Hill),[4] the Supreme Court of Canada (“SCC”) described “malice”, stating:
Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, as Dickson J. (as he then was) pointed out in dissent in Cherneskey, supra, at p. 1099, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created. […] Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth […]
[21] Following the SCC’s definition of malice from Hill, I find on a balance of probabilities that the [S Complaint] was made dishonestly, with an ulterior purpose, motivated by spite and ill-will. [S] fabricated allegations of sexual harassment against his former romantic partner, and fabricated documents in an effort to pursue various financial claims against her. [S’] claims were brought in bad faith with the primary goal of harming the complainant.
The ARHT went on to find that the S Complaint had been motivated entirely by the improper purpose of harming N, rather than addressing some actual wrong done by N.
The AHRT noted that Section 10(2) had not been considered before by the AHRT, and provided the following helpful guidance about the damages applicable for breaches of this section:
[26] […] In my view, making a frivolous and vexatious complaint with malicious intent must be reviewed in the same manner as harm created by the breach of any other section of the Act, where such a breach has the potential to cause a loss of dignity, humiliation, and victimization; which effects occurred here.
The AHRT recited well-established principles that damages in human rights are meant to compensate injury. They need to be high enough to not be a license fee to breach the act, but not so high as to have punishment as their objective. In all of the circumstances, the AHRT awarded N a general damages of $12,500 and a legal costs award of $5,000.
My Take
The facts in this case are fairly shocking. However, any case where this section is used successfully will probably have shocking facts. It is not always difficult to prove that a complaint is frivolous or vexatious. However, it is difficult to prove that a complaint was malicious without fairly strong evidence. It’s a high standard and I think its meant to be.
Now regarding the damages. If the damages award for breach of this section were too high, it could create a chilling effect on the ordinary functioning of human rights complaints, because it would create a positive incentive for employers and other respondents to file Section 10 complaints for intimidation purposes. The damages award here is lower than I expected it would be (on reading the case), but it just may prevent abuse of this section going forward.
Bow River Law provides these regular legal blog articles for the purposes of legal news, education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
