Old Evidence of Miscarriage Allowed to Establish Disability In Alberta
Jackson v Maskwacis Ambulance Authority, 2022 AHRC 53 is a new interim decision by the Human Rights Tribunal of Alberta (the “Tribunal”) which discusses the one-year limitation period set out in the Alberta Human Rights Act (the “Act”).
In Jackson, the employer was unsuccessful in its application to prevent the complainant from bringing evidence about her miscarriage years prior to filing her complaint, because the complainant was only using that evidence to establish her mental disability and not as a separate ground of discrimination.
- Marlys Jackson (the “Complainant”) submitted an Alberta Human Rights complaint (the “Complaint”) on February 2, 2018 on the basis that she had been terminated by Maskwacis Ambulance Authority (the “Respondent”) due to a mental disability.
- About two and half years after the filing the Complaint, the Complainant advised the Respondent about a miscarriage she had in May 2016.
- The Respondent brought an application for an order preventing the Complainant from providing evidence or submissions regarding her alleged miscarriage on the basis that:
- The miscarriage was a new ground that had not been indicated in the Complaint;
- The new ground amounts to an amendment of the Complaint and could not be permitted because the one-year limitation period had lapsed and was therefore, statute barred.
Analysis / Conclusion
The Tribunal explained that a miscarriage is not a protected ground under the Act but would arguably covered under the protected ground of gender. However, whether a miscarriage could be a protected ground was irrelevant in this case, because the Complainant was not seeking to add the ground of gender to the Complaint but rather, the miscarriage was part of the factual matrix establishing that the complainant had a mental disability.
The Tribunal held that the Respondent’s argument to prevent the Complainant from making submissions about her miscarriage misconceived the statutory scheme of the Act.
Section 20(2)(b) of the Act provides that A complaint…must be made within one year after the alleged contravention of the Act occurs.
The Tribunal explained that the limitation period applies to the conduct of the respondent that is alleged to violate any of the protected grounds under the Act not to the event or factor that caused the mental or physical disability suffered by a complainant. Thus, the complainant’s miscarriage was not caught by the one-year limitation period.
There was likely some misunderstanding between the Complainant and Respondent with respect to the reason that the miscarriage was being raised. In these situations, it is important that the Respondent have a clear understanding of why a new fact is being raised to determine whether a new ground is being added or if the fact is filling in parts of the factual matrix. This case is also a reminder that the limitation period will be considered from the actions of the respondent as an act of discrimination must first take place for a complaint to exist.
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