Human Rights Guidance on AHRT Section 26 Dismissals

In Prieur v. Alberta Health Services, 2025 AHRC 33, the Alberta Human Rights Tribunal overturned a Director’s dismissal of a gender discrimination complaint filed by a female cardiac surgeon, finding that the Complaint contained issues that required a full hearing, rendering it inappropriate for dismissal under the screening stage of Section 26.

This case provides helpful guidance on several key issues, including the relevance of parallel proceedings and the limits on the Director’s discretion to dismiss under Section 26. It highlights that complaints involving complex allegations such as systemic discrimination or the existence of an employment relationship should not be readily dismissed, particularly as evidence of direct discrimination is rarely available at the screening stage.

Facts

The following is a summary of the key facts:

• Prieur was a cardiac surgeon who had worked at the Foothills Hospital in Calgary since January 1988. She was one of the very few female cardiac surgeons in Canada and, for several years, was the only female cardiac surgeon in Alberta.
• Prieur filed a human rights complaint alleging that Alberta Health Services (AHS) discriminated against her on the grounds of age and gender, in contravention of sections 6 and 7 of the Alberta Human Rights Act. She alleged a pattern of unfounded attacks on her performance, technical skills, and professional judgment by male colleagues. Dr. Prieur argued that these attacks were baseless complaints that AHS did not correctly deal with, and as a result, she suffered several adverse impacts, including lost wages. She also alleged that she was paid less than a male colleague performing the same work.
• AHS denied discrimination and further argued that the Commission lacked jurisdiction because Ms. Kieser was not an employee but a medical staff member with privileges.
• The Director initially dismissed Dr. Prieur’s complaint, concluding that it had no reasonable prospect of success as it did not support that her age and gender were factors in the alleged adverse treatment. The Director did not address the issue of jurisdiction because it found that the Complaint did not otherwise have a reasonable prospect of success.
• Prieur requested a review of the Director’s decision, arguing that her complaint raised significant systemic gender discrimination issues, and that expert evidence at a hearing would aid in substantiating her argument.

Analysis / Conclusion

(a) Section 6 of the Act

Section 6 of the Act requires employers to pay employees of both sexes the same rate for work that is the same or substantially similar. Dr. Prieur claimed that AHS violated Section 6 by paying unequal rates to male and female cardiac surgeons performing the same work. She alleged that a male surgeon transitioning to retirement received full operating rates despite performing only non-operative work, while she received lower non-operative service fees for the same type of work.

The Tribunal upheld the Director’s decision to dismiss this portion of the complaint after finding that AHS was not directly involved in setting Dr. Prieur’s compensation rates. While AHS granted privileges and rank to cardiac surgeons at Foothills Hospital, the actual payment for clinical services came from Alberta Health (the Ministry of Health) through ministerial orders. Although AHS could make decisions that impacted surgeon compensation, the evidence did not support that AHS controlled payment rates or was responsible for any alleged pay disparity.

(b) Section 7 of the Act

Section 7 of the Act prohibits employers from discriminating against any person with regard to employment. AHS argued that it had no employment relationship with Dr. Prieur, so the Act did not apply. It argued that its relationship with Dr. Prieur was governed by Medical Staff Bylaws and a Medical Services Agreement that expressly defined her as an independent contractor and that it had no control over her pay, did not direct her clinical decisions, and could not unilaterally revoke her privileges. AHS provided the Tribunal with the decision of Candler v. Capital Health, where it previously found against an employment relationship where a physician was not paid by the health authority and deemed an independent contractor serving patients rather than the hospital.

Dr. Prieur maintained that an employment relationship existed, citing the extensive control AHS exercised over her working conditions. She noted that cardiac surgery requires hospital infrastructure that only AHS could provide, that she was economically vulnerable to AHS’ decisions, that AHS controlled facility use and scheduling, and that AHS could discipline her or restrict her clinical activities.

The Tribunal referenced the Alberta Court of Appeal’s contextual approach from Lockerbie & Hole Industrial, which examines multiple factors to determine whether a particular relationship qualifies as “employment” under the Act, including, inter alia: who pays the employee, who controls the employee’s activities, employment/policy documents, and who benefits from the employee’s services.

The Tribunal concluded that both parties had provided information placing the question of jurisdiction in issue. As such, it was inappropriate to dismiss Dr. Prieur’s complaint on this basis under section 26. The Tribunal held that the matter of jurisdiction was to be properly dealt with either as a preliminary issue or with the benefit of a full hearing.

(c) Section 21(2)(b)

AHS argued that Dr. Prieur’s complaint ought to be dismissed or held in abeyance because Dr. Prieur filed a Statement of Claim addressing the same issues and alleging the same facts as her Complaint. In support, AHS cited Lui v. ABC Benefits, where a complaint was dismissed as it was the subject matter of a civil action that had already been addressed.

The Tribunal distinguished the present case from Lui, noting that while the civil lawsuit and the Complaint overlapped, they involved different legal issues. Specifically, Dr. Prieur’s complaint raised issues of systemic discrimination, and unlike in Lui, none of the matters had been adjudicated in the civil action.  The Tribunal also referenced Melnyk v RBC Dominion Securities Inc., which notes the following with respect to parallel claims:

It may be appropriate for parallel claims to proceed where: 1) the civil action will not necessarily answer all the issues raised in the complaint or vice versa; 2) neither forum has yet made any findings such that the risk of inconsistent findings has not yet materialized; and 3) either the court or the tribunal could adjust its proceedings depending on the factual findings made in the other forum…

Finding no compelling reasons to defer or dismiss the complaint at this stage of proceedings, the Tribunal maintained that it could dismiss the complaint later if the civil action proceeded to judgment first and substantively resolved the allegations.

My Take

Section 26 of the Act provides that the Director may dismiss a complaint with “no reasonable prospect of success.” When considering whether to exercise its discretion, the Director must accept the allegations of fact as true, except to the extent that they are based on assumptions or speculations. Complaints with some chance of success that require a hearing to resolve a genuine issue or where evidence takes the case out of the realm of conjecture are to proceed to a full hearing.  

The Tribunal found that Dr. Prieur’s allegations regarding systemic discrimination went beyond speculation. She provided academic research on discriminatory treatment of women in cardiac medicine in Canada – specifically in Calgary – and noted that expert evidence would be presented at a hearing. The Tribunal concluded that this information took the complaint “out of the realm of conjecture.” While the Tribunal upheld the dismissal of the age discrimination and equal pay components of the complaint, it overturned the Director’s decision regarding gender discrimination under section 7 of the Act, finding sufficient information to suggest the complaint had a reasonable prospect of success.

This decision provides guidance on the limits of a Director’s discretion to dismiss human rights complaints at the screening stage. The Tribunal made clear that cases involving allegations of systemic discrimination deserve careful consideration before dismissal, particularly when supported by more than mere speculation or conjecture. The threshold for allowing cases to proceed to a hearing is whether there is “some chance of success,” not whether success is probable.

This case serves as an important reminder that the screening function should not become a barrier to addressing complex discrimination claims, particularly in professional contexts where direct evidence of discrimination is rarely available. It also recognizes that employment relationships in healthcare settings exist on a spectrum, and the unique position of medical professionals with hospital privileges requires nuanced analysis beyond what’s possible at a preliminary stage.

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Michael Hernandez is an employment lawyer at Bow River Law.  He is a knowledgeable and skilled lawyer, handling employment law, human rights (discrimination) and labour law matters.  Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.