In a recent judicial review decision, the Alberta Court of King’s Bench quashed a decision from the Alberta Human Rights Commission Tribunal (the “Tribunal”) that found the Edmonton Police Service (“EPS”) liable for discrimination. The underlying human rights complaint was brought against two individual EPS officers (the “Officers”) as well as the EPS itself. After dismissing the allegations against the Officers but nevertheless finding institutional liability against the EPS, the police service sought judicial review of the Tribunal’s decision.
The Court ultimately concluded that the Tribunal’s reasoning was internally inconsistent and failed to provide a coherent basis for imposing liability on the EPS alone.
The Court’s decision provides useful guidance on the requirements for reasonableness in imposing institutional liability, the limits of reasonableness review, and the circumstances in which a reviewing Court may choose not to remit a matter back to the original administrative decision-maker.
Background
The underlying complaint stemmed from a late-night incident in May 2017. At approximately 3:00 a.m., an EPS officer responded to a dispatch call for unknown trouble. Upon arrival, the officer encountered a chaotic scene that involved several people shouting and a woman crying. The officer observed two large Black men physically restraining a smaller White woman, with a third Black man holding a road sign and another woman watching. The officer believed the situation to be an assault and deployed pepper spray towards the men, causing their eyes to tear and burn. The men were subsequently placed in handcuffs and arrested. At the same time, a second officer arrived at the scene and assisted with the arrest.
After gathering further information from the men, it became apparent to the Officers that the hectic scene that unfolded was not in fact an assault, but rather that the men had actually attempted a civilian arrest of the woman after she had broken a nearby car window. At this point, the arrested men were given water to rinse out their eyes and their handcuffs removed.
In 2018, two of the men (the “Complainants”) filed a human rights complaint against the EPS and the two Officers, alleging they discriminated against the Complainants on the basis of race, colour, ancestry, and/or place of origin contrary to the Alberta Human Rights Act, RSA 2000, c A-25.5.
The Tribunal’s Decision
In order to find liability for discrimination, a complainant must show: (a) they have a protected characteristic (i.e., race); (b) they experienced an adverse impact with respect to a service; and (c) the protected characteristic was a factor in the adverse impact.
The Tribunal found that the facts supported a finding of discrimination and that race was a factor in the Officers’ decision-making and treatment of the Complainants, including the decision to deploy pepper spray without warning and the manner in which the Complainants were treated following their arrest. The Tribunal concluded that the Officers viewed the “petite White female” as a victim and the “large Black men” as angry, aggressive perpetrators of wrongdoing.
Notwithstanding these factual findings, the Tribunal made no finding of personal liability for discrimination against the Officers; however, it held that the EPS, separately, had discriminated against the Complainants in violation of the Alberta Human Rights Act.
The EPS subsequently sought judicial review of the Tribunal’s decision.
The Judicial Review
On judicial review, the Court confirmed that the reasonableness standard of judicial review applied to the Tribunal’s decision.
The reasonableness standard of review is a highly deferential standard. A reviewing court will only interfere with an administrative decision-maker’s decision if it is not based on an internally coherent and rational chain of analysis that is justified in relation to the facts and the law. In other words, the decision must be unreasonable.
The EPS argued that the Tribunal’s finding that the EPS had discriminated against the Complainants, despite the conclusion that the Officers did not, was internally inconsistent and unreasonable.
The Complainants argued that the Tribunal’s decision was reasonable on the basis that s. 39(2) of the Police Act, RSA 2000, c P-17, made the EPS liable for the torts or wrongful acts of its officers.
The Court found that the Tribunal’s decision was internally inconsistent, and therefore unreasonable, because:
- the Tribunal found no discrimination by the Officers, when it clearly did based on the evidence before it, and
- the Tribunal attributed the Officers’ acts of discrimination to the EPS without any explanation as to why EPS alone should be liable.
First, the Court noted that the Tribunal’s finding that race was a factor in the Officers’ treatment of the Complainants (i.e., a finding of discrimination) was completely at odds with the Tribunal’s conclusion that “[t]here is no compelling reason to make a finding of discrimination against the individual police officers”.
Second, the Court noted that the Tribunal attempted to impose liability on the EPS through the concept of a “corporate veil” which was not applicable in the circumstances. Specifically, the Court pointed out that in a “corporate situation”, where liability is not imposed on an employee (i.e., the Officers), there is no reason to pierce the corporate veil to impose liability on the corporation (i.e., EPS). The Court found that the Tribunal’s attempt at imposing institutional liability against the EPS in a vacuum, was unreasonable.
The Court also dismissed the Complainants’ argument that EPS was liable pursuant to s. 39(2) of the Police Act. A finding of discrimination is not a tort, and even if it were, the Court noted that the Tribunal had found that the Officers had not committed one by refusing to impose liability for discrimination.
Although a reviewing court will typically remit an unreasonable decision to the original administrative decision-maker for reconsideration, the Court declined to do so in this case. The Court noted that the Tribunal proceeding had spanned a “torturous” nine years and that there was no reason to subject the parties to further delay and expense of repeating that process. Instead, the Court quashed the Tribunal’s decision and brought an end to the matter without ordering a rehearing of the complaint.
Takeaway
This decision serves as a reminder that while human rights tribunals are entitled to deference on judicial review by superior courts, a court will intervene if a tribunal’s decision cannot demonstrate a logical and legally supportable chain of reasoning in light of the relevant facts and law.
Finally, the Court’s remedy decision in this case is noteworthy. Given the persistent delays facing human rights tribunals in Alberta and British Columbia, the Court’s decision may signal an increasing reluctance to remit matters to the original decision-maker where doing so would result in further “torturous” years of proceedings.
If you require additional information or further assistance, please contact Anja Nel or a member of our Police Law team.
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