Screening Stage Showdown: Increased Odds of Complaints Going to Hearing
July 2023 - 3 min read
This ruling implies that human rights complaints are more likely to proceed to a hearing when credibility is a significant factor. It is crucial for employers to be prepared for such situations and ensure they gather sufficient evidence to support their account and address any potential credibility issues. When there is conflicting evidence, human rights complaints should not be dismissed outright but rather referred to a hearing where a wider credibility assessment can take place.
A recent case provides guidance on the Alberta Human Rights Commission (AHRC)’s ability to dismiss complaints without a hearing and circumstances where the Director may weigh credibility at the screening stage of the complaints process.
In this case, Olufeme Shodunke filed two separate human rights complaints at different times against his employer, Paladin Security Group Ltd.:
- His first complaint alleged that the termination of his employment with Paladin in a shopping mall violated his religious human rights. Shodunke had requested to be excused from a scheduled shift for religious reasons, but his request was denied.
- His second complaint alleged that six months after his termination, another Paladin security guard removed him from the same shopping mall in retaliation for the first complaint. It is important to note that at that time, Shodunke had not yet made the first human rights complaint against Paladin for his termination. Shodunke’s complaint was that this was “obvious” discrimination and that there was “obvious collusion” between Paladin and the kiosk employee to blackmail him.
The Director of the AHRC exercised its screening function to dismiss Shodunke’s complaints because there was no reasonable basis to refer them to a hearing. The Director’s reasoning for dismissing the first complaint was essentially that the Director preferred the evidence of Paladin’s witnesses over that of Shodunke and found that he did not disclose his religious belief and his need for accommodation.
Shodunke appealed the dismissal to the AHRC Chief of Commission and Tribunals. The Chief upheld the Director’s dismissal and agreed there was no reasonable basis to proceed to a hearing. Shodunke brought an application to the Court for judicial review of the Chief’s decision. He argued that the dismissal decision was unreasonable as it resolved evidentiary conflicts on fundamental issues at the pre-hearing stage.
What the Court Said
The Court found that the AHRC Director’s decision to dismiss the first complaint was unreasonable but did not interfere with the Director’s decision to dismiss the second complaint.
On the first complaint, the Court noted that on the fundamental point of whether Shodunke had disclosed his need for religious accommodation before being terminated, his evidence “seriously” conflicted with Paladin’s evidence.
The Court accepted that the Director must be able to dismiss complaints with no reasonable prospect of success before going to a hearing. However, the Court found that the screening function has limits where there is conflicting evidence.
The Court found that a case should be referred to a hearing when the information gathered does not point “clearly to the veracity of one account of the facts as opposed to another.”
The Court applied those legal principles to Shodunke’s first human rights complaint and determined that the Director’s decision to dismiss it without a hearing was unreasonable. The Court found that the lack of corroboration of Shodunke’s version and Paladin having two witnesses and some supporting evidence for their statements was not an adequate basis to screen out the complaint at the screening stage. The information did not point clearly to the veracity of Paladin’s version; therefore, the only reasonable course was to send the matter to a Tribunal hearing where the wider credibility assessment could be made.
The Court then considered the dismissal of Shodunke’s second discrimination complaint and noted that Shodunke had no actual knowledge of what the security guard’s instructions from the employees at the mall kiosk were. Therefore, Shodunke had been asking the AHRC to infer that his removal from the mall was motivated by discriminatory hate, but he had no actual evidence to support that. The Court found that the Director’s decision to dismiss the second complaint was reasonable on the basis that the Director is well-placed to identify and assess stereotyping, micro-aggressions, sub-conscious bias, and the insidious nature of discrimination. Nothing indicated that the Director did not understand or ignored Shodunke’s concerns and experiences.
The Shodunke decision limits the Director’s discretion when dismissing complaints at the screening stage. Employers should be prepared for complaints to proceed to a hearing where the information before the Director at the screening stage does not clearly point to the veracity of the employer’s account over the employee’s. Where credibility is squarely at issue, complaints are more likely to be directed to a hearing.
If an employee has brought a human rights complaint against you, or if have questions about the process, Abbey Bartel in Edmonton, Steve Eichler in Calgary, or any member of Field Law’s Labour + Employment Group are well equipped to assist and provide guidance.
Link to decision: Shodunke v Alberta (Human Rights Commission), 2023 ABKB 260