In Denis v Tiffany & Co. Canada, 2026 AHRC 33, the Alberta Human Rights Commission rejected a Section 33 review application.
The Commission was asked under Section 33 of the Human Rights Act to reconsider several of its previous decisions, which were: (1) a decision rejecting an application for anonymization of a Section 26 review decision, and (2) that same Section 26 review decision, which itself had been a Commission-level decision confirming its own original decision (by the Director) to dismiss the human rights complaint for having no reasonable prospect of success, and (3) an application after that (also dismissed), this one for a publication ban regarding those first two decisions.
The Section 33 application for reconsideration was dismissed.
The Commission noted that reconsideration under section 33 of the Human Rights Act is limited and cannot be used to revisit a section 26 review or to reargue matters the Commission has already decided. The Complainant also failed to identify any new evidence which would merit reconsideration.
Facts
The key procedural history and facts are as follows:
- The Complainant Mr. Denis has asthma and is exempt from wearing a face mask. The Complainant attended a Tiffany & Co. retail store in January 2022 to view items that were not available online. Store staff asked him to wear a mask, and when he refused, asked him to leave the store.
- The Complainant filed a human rights complaint alleging that the Respondent had discriminated against him in the area of goods, services, accommodation, or facilities on the ground of physical disability.
- The Respondent responded stating that at the time of the incident, it had implemented a mandatory mask policy in response to the COVID-19 pandemic. All customers were required to wear a mask while in store. The Respondent’s policy provided alternative means of accessing its goods and services, including online shopping, virtual assistance, and arranging for curbside pickup.
- The Director dismissed the Complaint for having no reasonable chance of success. The Respondent had identified reasonable alternative means of accessing its goods and services and such alternatives constituted reasonable accommodation in the context of the COVID-19 pandemic.
- The Complainant requested a section 26 review of the Director’s decision to dismiss the Complaint. The Commission dismissed the section 26 review for the same reasons identified by the Director.
- The Complainant applied for anonymization of the section 26 review decision. The Commission dismissed the anonymization application in an interim decision dated January 19, 2026.
- The Complainant applied for a stay of publication of the previous decisions. The Commission dismissed the stay application in an interim decision dated February 2, 2026.
- The Complainant sought reconsideration of the January 19, 2026, and February 2, 2026, interim decisions, arguing that they should be reconsidered because they involve sensitive medical information, their publication may cause harm to the Complainant, and they were procedurally unfair and legally incorrect.
Analysis / Conclusion
Interim Decisions
Following the dismissal of the Complaint, the Complainant requested that the Commission’s section 26 decision be anonymized (ie., that his name not be published in the decision) to preserve his privacy. The Complainant argued that anonymization was warranted because the section 26 decision involved confidential health information relating to him.
The Commission noted that there is a strong presumption of openness and transparency in judicial and quasi-judicial proceedings. The party seeking anonymization bears the burden of demonstrating that their privacy interest outweighs the public interest in open proceedings. Anonymization is an exceptional remedy that is only available if the privacy concerns relate to information of a special character or circumstances of particular vulnerability. The Commission has previously rejected anonymization requests grounded primarily in discomfort with public proceedings or dissatisfaction with the outcome.
The Commission also noted that the section 26 decision only made general reference to the Complainant’s disability. The Complainant had failed to identify any highly sensitive medical details in the published decision, or of any specific harm which may arise from its publication. Accordingly, the Commission dismissed the application for anonymization.
The Complainant then applied for a stay of publication. In doing so, the Complainant largely reiterated his previous arguments for anonymization. The Commission found that the Complainant had sought “to supplement or revisit the anonymization request that was already considered and denied”. The Commission noted that a stay application is not an appropriate way to relitigate an issue previously determined.
The Commission dismissed the stay application for many of the same reasons it had dismissed the anonymization application, noting that the Complainant had failed to demonstrate how publishing the earlier decisions would result in irreparable harm.
Section 33 Reconsideration Decision
The Complainant sought reconsideration of the interim decisions pursuant to section 33 of the Act. In doing so, the Complainant largely reiterated the same arguments as before: that the section 26 decision contained sensitive medical information, the publication of which would cause the Complainant irreparable harm.
In considering the Complainant’s third attempt at the same argument, the Commission unsurprisingly dismissed the same, but this time it was for procedural reasons: “The reconsideration materials therefore do not meet the threshold requirements set out in section 33 of the Act”.
The first such threshold requirement was that section 33 refers to reconsideration of matters considered by a “human rights tribunal”, whereas a section 26 review is a decision made by the Chief of the Commission and Tribunals (or their designate):
- The statutory framework draws a distinction between a section 26 review and proceedings before a “human rights tribunal”. Because the Director had dismissed the complaint before (or instead of) referring it to the Tribunal, the Complainant did not have the right to pursue a reconsideration application under section 33.
- Section 33 also required the Complainant to identify “new evidence” which was not available or for good reason not presented before the decision-maker in first instance. The Complainant failed to identify any “new evidence” that was unavailable at the time the interim decisions were decided.
The Commission dismissed the reconsideration application because of the aforementioned procedural defects, being that the Complainant was attempting to rely upon a procedure not available to him and had failed to identify any “new evidence” meriting reconsideration in the first place.
My Take
The Commission’s reasons demonstrate the importance of understanding the statutory framework under which the Alberta Human Rights Commission functions, particularly when attempting to identify what options are (and are not) available to participants depending on where they are in the resolution process.
The Complainant’s attempt to rely on section 33 to seek reconsideration of a section 26 review was misplaced because section 33 only provides for the reconsideration of a decision of a human rights tribunal, and not the Chief of the Commission and Tribunals (or their designate) who decided the section 26 review.
The Commission’s technical approach makes sense in the circumstances, especially when considering that the section 26 review is itself already a “reconsideration” of the Director’s earlier decision to dismiss the complaint. Expanding the scope of section 33 would likely only result in a drain of the Commission’s resources, as decision-makers will rarely decide a matter differently simply because a particularly stubborn litigant repeatedly asks them to.
The Denis v Tiffany & Co. Canada saga also serves as a cautionary tale for anyone involved at the Alberta Human Rights Commission or other judicial or quasi-judicial processes. Unless there are truly exceptional circumstances, human rights decision are often published online, inclusive of the participants’ names and other identifying information, even if doing so may result in embarrassment of reputational harm. While the public nature of human rights decisions may cause some discomfort, the Commission has maintained that such discomfort is warranted to ensure a transparent and open process.
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