Willier v Law Society of Alberta

HUMAN RIGHTS TRIBUNAL OF ALBERTA

____________________________________________________________________________

Citation: Willier v Law Society of Alberta, 2022 AHRC 73

BETWEEN:

Wilfred Willier

Complainant

- and -

Law Society of Alberta

Respondent

SECTION 26 DECISION

________________________________________________________

Chief of the Commission and Tribunals:

Decision Date:

Kathryn Oviatt

July 6, 2022

File Number:

N2019/06/0125

Classification: Protected A

Overview

[1]

The Director of the Alberta Human Rights Commission (the Director) dismissed

the complainant’s human rights complaint. The complainant, Wilfred Willier, requested a

review under section 26 of the Alberta Human Rights Act (the Act).¹I uphold the Director’s

decision to dismiss the complaint.

[2]

The complainant is Indigenous. He is also a lawyer. The respondent, Law Society

of Alberta, is the professional regulator over the legal profession in Alberta. The

complainant alleged that the respondent discriminated against him in the area of

membership in an occupational association on the ground of race, colour, ancestry,

and/or country of origin, contrary to section 9 of the Act (the Complaint). The allegations

relate to professional conduct proceedings against the complainant, and allege both direct

and systemic discrimination.

Issue

[3]

The issue before me is whether the Complaint should have been dismissed.

Background

The Complaint and Response

[4]

As part of its professional regulatory function, the respondent receives,

investigates, screens, and advances professional conduct proceedings against lawyers.

The complainant alleged that the respondent discriminated against him by accepting,

advancing and/or initiating conduct complaints against him, including allegations of:

a. direct discrimination through alleged:

i. continual conduct complaints starting in or about 2014 or 2015;

ii. continuation of a conduct complaint after the complainant in the

conduct proceeding, a First Nations band, asked to withdraw the

complaint;

iii. harassment by respondent investigators;

b. systemic discrimination against Indigenous lawyers;

c. alleged unfair practices, including:

i. publishing allegations prior to any findings of conduct deserving of

sanction;

¹Alberta Human Rights Act, RSA 2000, c A-25.5

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Classification: Protected A

ii. inherent conflict in the respondent’s structure where it may be

complainant, investigator, prosecutor and hearing panel; and

d. retaliation.

The respondent denied discrimination. It noted that it had received many

[5]

complaints against the complainant, dating back to 2003, most of which were made by

third parties, including from both opposing counsel and the complainant’s former clients,

many of whom were Indigenous themselves. In the time period of 2015 – 2019, there

were eight conduct complaints against the complainant. Seven of these originated from

third parties but the respondent acknowledged it had initiated one complaint following

public remarks from the Court of Queen’s Bench of Alberta about the complainant’s

conduct in court. The respondent argued it has a statutory duty to review any professional

conduct that comes to its attention.

Director’s Decision

[6]

The Complaint proceeded under the Director’s Referral Process. This process

asked both parties to submit all information and documents relevant to the Complaint and

to answer written questions arising from the Complaint and response forms. Both parties

participated in this process, including by providing additional records and submissions in

response to the Director’s Referral Process. All of the information gathered was then

referred to the Director for screening. The Director determined that the Complaint be

dismissed because it was without merit. She concluded:

You have provided little information to lay a foundation for your allegations,

relying only on your personal experience with the Law Society. While I

acknowledge that there is a percentage difference in Indigenous versus

non-Indigenous members with discipline records, that is not conclusive of a

pattern of systemic discrimination against you on your protected grounds

and I see no other evidence of any discrimination in the Law Society’s

investigation of complaints.

Request for Review

[7]

The complainant filed a Request for Review of the Director’s decision. The

complainant expressed concern that the Commission had not conducted a fulsome

investigation and alleged bias in the relationship between the respondent and the

Commission. He also asked that discipline proceedings which commenced in June 2021

be considered retaliatory. The respondent did not respond to the request for review.

Analysis

The Screening Function under section 26

[8]

When a complainant requests a review of a dismissal, section 26(3) directs the

Chief of the Commission and Tribunals (the Chief Commissioner) to review the record

and decide whether the complaint should have been dismissed:

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Classification: Protected A

(3) The Chief of the Commission and Tribunals shall

(a) review the record of the director’s decision and decide whether

(i)

the complaint should have been dismissed

[9]

This is a screening or gatekeeping function on the record. If the Chief

Commissioner overturns the Director’s dismissal, the complaint will be referred to the

Tribunal for an oral hearing and full adjudication. In A.D. v Alberta Health Services, the

Chief Commissioner explained this role as conducting a fresh assessment to determine

whether the complaint should proceed to a hearing:

First, I see no basis in the legislation or jurisprudence to suggest the Chief’s

role is to review the reasonableness of the Director’s decision and reasons,

and in so doing, show deference or restraint. Indeed, contrary to the task of

a Court on a judicial review, the Chief’s role is to conduct a de novo

assessment of the record along with any additional information that may

be provided, and determine whether there is a reasonable basis in the

evidence to refer the complaint to a hearing. The Chief does in fact ask

the question “what decision would I have made,” and would fetter his

discretion and jurisdiction if he (or his designate) failed to make a

fresh assessment.²[emphasis added]

[10] In Mis v Alberta Human Rights Commission (Mis), the Alberta Court of Appeal

developed the Chief Commissioner’s section 26 test for determining when a complaint is

“without merit”:

The determination whether a complaint should be dismissed as “without

merit” is a screening or gatekeeping function performed as a paper review.

We are disinclined to set the specific test as low as “arguable case”

or as high as ‘reasonable prospect of success”. In our view, the

standard is somewhere in between. The question the Director or the

Chief Commissioner must ask in deciding whether a complaint is without

merit is whether there is a reasonable basis in the evidence for proceeding

to the next stage.³[emphasis added]

[11] Then in Economic Development Edmonton v Wong (Wong), the Court of Appeal

further explained the Chief Commissioner’s screening role.⁴The Court reiterated the

“reasonable basis to proceed” approach to screening complaints “without merit”, and

clarified the Chief Commissioner’s ability to consider both evidence gathered during the

investigation and fresh evidence, and to assess the quality of that evidence, while

remaining mindful of the role of the Tribunal if the matter were to proceed to hearing.⁵

²A.D. v Alberta Health Services, 2020 AHRC 49 at para 26

³Mis v Alberta Human Rights Commission, 2001 ABCA 212 (Mis) at para 8

⁴Economic Development Edmonton v Wong, 2005 ABCA 278

⁵Wong at paras 16 – 20

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Classification: Protected A

[12] I dismiss the Complaint because there is not a reasonable basis in the evidence

to proceed to a hearing. The threshold assessment of merit is low and I am given wide

latitude.⁶I may assess credibility, consider new evidence, and screen the matters to be

referred for a full hearing.⁷I am expected to use my experience and common sense⁸to

evaluate the quality of the information gathered, while remaining mindful of the role of the

Tribunal at hearing to weigh evidence and make findings of fact.⁹

The Commission’s Role in Reviewing Professional Regulatory Proceedings

[13] The respondent characterized the complainant’s submissions as a collateral attack

on its statutory function to regulate the legal profession in Alberta. To the extent that the

complainant makes allegations about the reasonableness of the respondent’s

professional regulation, I agree with the respondent that I cannot address those issues

and I limit myself to reviewing the allegations that are allegedly linked to the complainant’s

race, colour, ancestry, and/or country of origin.

[14] The Commission and the respondent Law Society of Alberta each have their own

statutory mandates. The Commission considers discrimination complaints in specific

areas, including occupational associations which include professional regulators, on

identified protected grounds, including race, colour, ancestry, and/or country of origin.

The Act sets out the legislative framework for receiving, reviewing, screening, and hearing

those complaints. The respondent has its own statutory authority, which is to regulate the

legal profession in the public interest. The respondent’s governing legislation sets out the

legislative framework for receiving, reviewing, screening, and hearing professional

conduct complaints.¹⁰In short, we deal with discrimination and the Law Society deals with

professional conduct. We do not, and cannot, step into one another’s “lanes”. But there

can be overlap if the respondent discriminates in the exercise of its regulatory functions.

[15] Here, I cannot consider the following alleged unfair regulatory practices because

the complainant does not allege facts that suggest that his race, colour, ancestry, and/or

country of origin were factors in the respondent’s conduct:

a. publication of unproven citations of conduct deserving of sanction; and

b. conflict of interest where the respondent initiates, investigates, and

adjudicates conduct proceedings.

[16] These practices apply to all lawyers and there is no suggestion that the

complainant’s race, colour, ancestry, and/or country of origin were linked to these

practices, or that they impacted Indigenous lawyers disproportionately. The complainant’s

central concern is that these practices were unfair. If there was unfairness in the

respondent’s conduct proceedings, the appropriate channel was to address that

⁶Mis at para 9

⁷Economic Development v Wong 2005 ABCA 278 at paras 16 - 20

⁸Mis at para 9

⁹Economic Development v Wong at para, 17 and 20

¹⁰Legal Profession Act, R.S.A. 2000, c. L-8

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Classification: Protected A

unfairness in the respondent’s proceedings directly, including through any appeal

processes and/or judicial review. In contrast, the issues addressed below are appropriate

for consideration in this forum because they allege discrimination in how the regulator

performed its regulatory function.

The Complainant’s Burden of Proof

[17] Section 26 requires me to review the record that was before the Director. The

complainant expressed frustration that the Commission has not gone out and found

evidence of discrimination itself. This reflects a misunderstanding of the burden of proof

and the role of the Commission.

[18] The complaint process under the Act requires each party to produce information

and records related to the issues in a complaint. A summary of this process is as follows:

a. A complainant brings a complaint and information to support the complaint.

b. The respondent provides its response and information to support its

position.

c. The Commission may make further inquiries if it feels further information is

required.

d. Both parties may provide further information during complaint management.

e. Finally, the Director reviews both parties’ information to screen the

complaint based on the information the Commission collected from the

parties.

[19] The Commission has broad authority to gather and compel information, but it is

the responsibility of the parties to provide records and information to meet their respective

cases. Here, the complainant had the opportunity to provide detailed submissions in the

Director Referral process, and he took that opportunity. So did the respondent. Then the

complainant made additional submissions in the request for review, and again he made

those submissions.

[20] The complainant occasionally referred to potential additional records, like alleged

voluminous emails that would corroborate his assertions, but he never provided those. It

was not the Commission’s responsibility to compel allegedly relevant records from third

parties of which it had no direct knowledge, but rather the complainant’s responsibility to

produce anything relevant.

[21] The reason I dismiss the Complaint here is because of the record. The complainant

did not meet the threshold to establish a reasonable basis in the evidence to proceed to

the next stage.

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Classification: Protected A

Direct Discrimination

[22] The Complaint alleged discrimination that can be described as both direct and

systemic. The nature of the allegations intertwines the systemic and direct discrimination

allegations, but for the purposes of this decision, I have addressed the alleged direct

discrimination separately from that of the alleged systemic discrimination.

Notwithstanding the analytical separation, I have considered the allegations and context

as a whole. This is important to ensure appreciation for both historical and current barriers

that Indigenous people in Alberta continue to face.

[23] While systemic discrimination reviews trends to identify structural barriers to

equality, direct discrimination relates to what happened directly to the complainant. The

complainant alleged the respondent directly discriminated against him in the following

ways:

a. continual conduct complaints since 2014 or 2015 brought by third parties;

b. continuing a conduct complaint where the complainant requested to

withdraw it;

c. initiating a conduct complaint directly; and

d. harassment by respondent investigators.

[24] The difficulty in this Complaint, both for the allegations of direct discrimination and

systemic discrimination, is the lack of support in the record for the complainant’s

assertions. This is not a finding that Indigenous people, including Indigenous lawyers, do

not experience both direct and systemic discrimination; on the contrary that is a well

known fact. However, to show that a complaint should proceed to the next stage of the

proceedings, there must be a reasonable basis in the record to do that.

Conduct Complaints Brought by Third Parties

[25] The complainant alleged that he faced continual conduct complaints starting in

2014 or 2015, and that the respondent’s decision to pursue these matters was

discriminatory. In contrast, the respondent explained that between 2015 and 2019, it

accepted eight conduct complaints against the complainant, seven of which were initiated

by third parties, including other legal counsel or the complainant’s former clients, many of

whom were Indigenous themselves.

[26] The respondent noted that it had no role in initiating the seven third party conduct

complaints. The record supports this. The respondent processed each of these third party

conduct complaints in the normal course. Ultimately, it dismissed some of the conduct

complaints during its screening function while others it referred to its conduct committee

for hearing. The complainant accepted responsibility for some of the conduct by

acknowledging that his professional conduct was conduct deserving of sanction.

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Classification: Protected A

[27] There is nothing in the record that suggests that the complainant’s race, colour,

ancestry, or place of origin was a factor in how the respondent accepted or pursued the

seven third-party conduct complaints between 2015 and 2019. Rather, it appears that the

respondent processed these conduct complaints as part of its normal practices.

Continuation of a Complaint after Request for Withdrawal

[28] One of the seven third-party conduct complaints between 2015 and 2019 initially

arose out of a conduct complaint from a First Nation band. Subsequently, the band issued

a band council resolution requesting to withdraw the conduct complaint. The complainant

alleged that the respondent’s failure to withdraw the complaint was discriminatory,

including because the respondent did not understand the nature and effect of a band

council resolution. The respondent disagreed and explained that it has a duty to review

professional conduct that may be conduct deserving of sanction, with or without an active

complainant.

[29] As outlined above, the reasonableness of the respondent’s professional regulation

is not an issue before me; the Commission can only consider whether, in performing its

regulatory function, the respondent discriminated against the complainant. The

respondent’s governing legislation clearly authorizes it to address any conduct that comes

to its attention.¹¹Accordingly, the respondent has discretion to address professional

conduct with or without an active complainant.

[30] The complainant asserts that race must be a factor but that is conjecture or a bare

assertion. There is nothing in the record beyond this speculation upon which to draw an

inference that the complainant’s Indigeneity was a factor in the respondent’s decision to

continue the conduct proceedings in the absence of an active complainant. Again, the

record supports that the respondent processed the conduct complaint in accordance with

its discretion under its governing legislation and I am not able to review the

reasonableness of that discretion absent something in the record that links the protected

ground to the decision.

Law Society Initiated Complaint

[31] The respondent initiated one conduct complaint itself between 2015 and 2019. The

respondent explained that it initiated this proceeding after the Court of Queen’s Bench of

Alberta publicly chastised the complainant for engaging in unauthorized and discourteous

conduct that interfered with the administration of justice.¹²The serious judicial

chastisement alone appears to be the reason for the respondent’s decision to initiate the

conduct proceedings. Nothing in the record suggests that the complainant’s race, colour,

ancestry, and/or country of origin was a factor in the respondent’s decision to initiate this

conduct complaint.

¹¹Legal Profession Act, R.S.A. 2000, c. L-8, ss. 49 and 53

¹²Morin v TransAlta Utilities Corporation, 2017 ABQB 409 at para 51

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Classification: Protected A

Harassment

[32] The complainant alleged that the respondent’s investigators, former police officers,

discriminated against him and other Indigenous lawyers. The human rights officer

specifically asked the complainant what led him to believe that the respondent’s

investigators discriminated against Indigenous lawyers:

You state that [name] and [name], former police officers who have been

hired by the LSA (as investigators), are racist against First Nations people.

Apart from what is cited in the complaint, please provide any information

you have that leads you to believe this. In addition, please provide

information as to what specifically they did or did not do in regards to their

investigation into complaints made about you that leads you to believe this.

[33] The Complaint included one sentence about the investigators: “The Law Society

has ex-police officers who are not legally trained, namely [name] and [name].” The

complainant later provided a response to the human rights officer’s correspondence but

did not meaningfully answer the questions; he did not provide specific examples of

anything the investigators allegedly said or did that suggested discriminatory attitudes.

Instead, the complainant asserted that because the investigators were former police

officers, and because Indigenous people are over represented in the criminal justice

system, this must lead the former officers retained as Law Society investigators to “target”

Indigenous lawyers in professional conduct proceedings.

[34] While I agree with the complainant that the overrepresentation of Indigenous

individuals in the criminal justice system is of grave concern, his submissions here are

conjecture and the logic does not flow that a complex trend in the criminal justice system

means that all former members of that system will discriminate in an entirely different

legal forum. They might, but the record does not create a reasonable basis in the evidence

to proceed here.

Systemic Discrimination

[35] The systemic part of the Complaint alleged that the complainant, and other

Indigenous lawyers, experienced discrimination through heightened numbers of

professional conduct proceedings and denial of Queen’s Counsel appointments.

[36] Systemic racial discrimination results from interconnected policies, practices, and

attitudes that underlie an organization’s structure, and which create or perpetuate

disadvantage for racialized persons. The leading case on systemic discrimination in

Canada is Canadian National Railway Co. v. Canada (Canadian Human Rights

Commission) (Action Travail des Femmes), in which the Supreme Court of Canada

described systemic discrimination as “discrimination that results from the simple operation

of established procedures…none of which is necessarily designed to promote

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Classification: Protected A

discrimination”.¹³The Supreme Court of Canada highlighted the unintentional nature of

systemic discrimination and the insidious effects it can have.¹⁴

[37] In Association of Ontario Midwives v Ontario (Health and Long-Term Care)

(Ontario Midwives), the Human Rights Tribunal of Ontario (HRTO) further expanded on

the interconnected nature of otherwise neutral operations that create systemic barriers:¹⁵

… [I]n a claim of systemic discrimination, allegations cannot be isolated to

a single event or statement. Alleged incidents, along with particulars of

historical practices, policies and attitudes, must be viewed comprehensively

and in aggregate. It is this interwoven amalgam of conduct, actions,

inaction, policies, practices, systems and attitudes which is alleged to

result in differential treatment and discriminatory impact. The

connections between incidents may not always be obvious and may not be

purely linear or continuous. But together, the interconnected web is what

constitutes the series of incidents. [emphasis added]

[38] As is always the case in human rights law, the emphasis is on the effects of the

interconnected policies, practices, and attitudes, and not on the respondent’s intentions.

Today there are very few organizations that consciously intend to discriminate against

any protected characteristic. And yet, we continue to see unequal representation and

opportunities at all levels of society for Indigenous people, people of colour, women,

LGBTQ2S+ individuals, disabled individuals, and more. This means that unintended

consequences from practices, policies, and attitudes (including unconscious attitudes)

are combining to create systemic discrimination.

[39] Systemic discrimination may be subtle and hidden, but it is real and persistent in

Alberta today. This is why the Supreme Court of Canada advised that we should look at

“the results of a system”:¹⁶

It is not a question of whether this discrimination is motivated by an

intentional desire to obstruct someone's potential, or whether it is the

accidental by-product of innocently motivated practices or systems. If the

barrier is affecting certain groups in a disproportionately negative

way, it is a signal that the practices that lead to this adverse impact may

be discriminatory.

This is why it is important to look at the results of a system[.] [emphasis

added]

¹³Canadian National Railway Co. v Canada (Canadian Human Rights Commission), 1987 109

(SCC), [1987] 1 SCR 1114 (Action Travail des Femmes), at pages 1138-9

¹⁴Action Travail des Femmes at page 1143

¹⁵Association of Ontario Midwives v Ontario (Health and Long-Term Care), 2014 HRTO 1370 ()

(Ontario Midwives) at para 37

¹⁶Action Travail des Femmes

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Classification: Protected A

[40] Although I accept that systemic discrimination is real, there is still a burden of proof

to establish a contravention under the Act. A complainant cannot simply assert systemic

discrimination to prove their claim. In Ahmad v CF Chemicals Ltd. (Ahmad), this Tribunal

dismissed a systemic discrimination complaint because the complainant had not met his

burden of proof.¹⁷On a review under section 26, the burden is a much lower screening

threshold than the burden of proof at a Tribunal hearing, but there is still a threshold.

[41] Where the complaint is of a systemic nature, the Chief Commissioner must

consider whether there is a reasonable basis in the record to proceed. Proving systemic

discrimination requires showing evidence of patterns and trends. Again, here I apply a

screening threshold but the following cases are nevertheless of assistance. In British

Columbia v Crockford, the British Columbia Court of Appeal explained:¹⁸

A complaint of systemic discrimination is distinct from an individual claim of

discrimination. Establishing systemic discrimination depends on

showing that practices, attitudes, policies or procedures impact

disproportionately on certain statutorily protected groups... A claim

that there has been discrimination against an individual requires that an

action alleged to be discriminatory be proven to have occurred and to have

constituted discrimination contrary to the Code. The types of evidence

required for each kind of claim are not necessarily the same. Whereas a

systemic claim will require proof of patterns, showing trends of

discrimination against a group, an individual claim will require proof of an

instance or instances of discriminatory conduct. [emphasis added]

[42] The evidence required to prove systemic discrimination may come from a variety

of sources, including attitudes, specific instances, and statistical patterns. In Lasani v

Ontario (Ministry of Community and Social Services) (No. 2), the HRTO explained:¹⁹

In cases such as the one before me, where the Commission alleges

systematic discrimination, the relationship between the allegedly unfair

result and the prohibited ground must still be proven. Commonly, this is

done by an admixture of evidence concerning the attitudes of

supervisors, incidents which have occurred, etc., and analysis of the

statistical pattern in the place of employment.

[43] In Ahmad, the Tribunal dismissed the complaint because there was not enough

evidence, including statistical analysis, to support the claim of systemic discrimination:²⁰

[T]he complainant did not supply statistical evidence or expert testimony to

support his allegations. There was conjecture but little or no reliable

¹⁷Ahmad v CF Chemicals Ltd., 2019 AHRC 5, at para 187

¹⁸British Columbia v Crockford, 2006 BCCA 360, at para 49

¹⁹Lasani v Ontario (Ministry of Community and Social Services) (No. 2), 1993 16433 (ON HRT)

(Lasani) at para 49

²⁰Ahmad at para 188

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Classification: Protected A

statistical evidence which showed a pattern from which discrimination

could be inferred. [emphasis added]

[44] While statistics are often an important part of the evidence in systemic

discrimination complaints, they are not strictly necessary if the rest of the evidence as a

whole can create the inference.²¹That said, statistics, if they are available and reliable,

can be of assistance in looking at the results of a system.

[45] Here, the complainant made assertions of systemic discrimination, but these

assertions were mostly conjecture or unreliable. For example, the complainant alleged

that 25% of all the respondent’s conduct matters relate to Indigenous members, and that

80% of Indigenous lawyers face conduct proceedings during their careers. The

Commission asked the complainant to provide the basis for these statistics but he did not.

There was no evidentiary support for the statistical assertions.

[46] Instead, the complainant listed several names of individuals who he claimed were

Indigenous and had faced professional conduct proceedings. The number of named

individuals appears to be far less than 80% of the self-identifying Indigenous lawyers in

the province. He also did not indicate when such alleged proceedings occurred or the

outcome of the respondent’s process; some of the people listed were deceased or had

resigned from practice many years prior to 2019 when this Complaint arose, or even prior

to 2014 when the complainant alleges his discrimination began. In the absence of context,

the anecdotal information is of only limited assistance.

[47] The complainant also relied on the respondent’s submissions in a British Columbia

proceeding as evidence that systemic discrimination occurs for all Indigenous lawyers. In

Moore v The Law Society of British Columbia (BC Law Society), the respondent

acknowledged that it had not done enough to support an Indigenous lawyer who was new

to the profession.²²Contrary to the complainant’s argument, BC Law Society turned on

its own facts and is not evidence of systemic discrimination against all Indigenous

lawyers, in all contexts, years after that case.

[48] BC Law Society was about a junior lawyer seeking registration in a new province.

Her Alberta disciplinary record posed barriers to registration in British Columbia. In the

judicial review application in British Columbia, the respondent Law Society of Alberta

acknowledged that it had not accommodated the applicant. It conceded that the applicant

had requested support and that it was not equipped at the time to accommodate her. The

respondent advised the BC court that if the citations had occurred after November 2016

when it began a pilot program to mentor and support Indigenous lawyers through a

voluntary referral practice management program, she would not have been subject to

conduct proceedings. Here, the complainant does not suggest that he required

mentorship or practice management to ensure professional competence or that he

requested that similar accommodations as in the BC Law Society case; he is a senior

²¹Radek v Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 at

paras 504, 509, 513

²²Moore v The Law Society of British Columbia, 2018 BCSC 1084 at para 121

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lawyer with many years of experience. I agree with the respondent that the admission in

BC Law Society related to different circumstances than those here.

[49] The respondent provided detailed submissions and statistics about its conduct

proceedings and membership, including:

a. The respondent does not require Indigenous lawyers to identify themselves,

but has some statistics relating to general membership and to those

members who choose to identify themselves as Indigenous.

b. Initially the respondent provided the following statistics:

i. In 2019, 182 members chose to identify themselves as Indigenous.

ii. Of the self-identified Indigenous lawyers, 7 had disciplinary records.

This represented approximately 3.8% of self-identifying Indigenous

lawyers with disciplinary records.

iii. In comparison, 192 of 9,920 members who did not identify as

Indigenous had disciplinary records. This represented approximately

1.9% of non-Indigenous identifying lawyers with disciplinary records.

c. Following a question from the Commission about why the percentage of

discipline for Indigenous identifying members was higher than the

percentage of discipline for non-Indigenous identifying members, the

respondent explained that the above numbers were based on discipline

records dating back to 1997 when records and statistics were not as

accurate as data from 2015 onwards.

d. The respondent provided statistics about discipline involving self-identifying

Indigenous lawyers from 2015 to 2019:

i. 2015: no self-identified Indigenous lawyers had citations issued

against them.

ii. 2016: one self-identified Indigenous lawyer had citations issued

against them.

iii. 2017: one self-identified Indigenous lawyer had citations issued

against them; this was the complainant.

iv. 2018: one self-identified Indigenous lawyer had citations against

them; this was the complainant.

v. 2019: no self-identified Indigenous lawyers had citations issued

against them.

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Classification: Protected A

[50] The difference in discipline for the self-identifying Indigenous lawyers compared to

general membership from 1997 forward is concerning. Clearly the human rights officer

reviewing the file was also concerned about it because she asked the respondent to

explain. However, statistics are not always determinative and the respondent had a good

explanation; its record keeping prior to 2015 made the statistics unreliable. The statistics

from 2015 onward, coincidentally around the same time that the complainant alleges his

discrimination started, suggest that self-identified Indigenous lawyers were not

disproportionately subject to professional discipline. In the absence of any additional

information about attitudes or conduct suggestive of conscious or unconscious biases,

the unreliable statistics are not enough to create a reasonable basis in the record to

proceed further.

[51] Similarly, with respect to Queen’s Counsel appointments, the complainant made a

bald assertion that the respondent disproportionately denied Queen’s Counsel

appointments to Indigenous lawyers. He provided no basis for this assertion. It is not clear

in the record how or when the respondent allegedly denied Indigenous lawyers this

opportunity, nor what role the respondent played in choosing lawyers for Queen’s

Counsel designations, which are made by the Lieutenant Governor in Council.

Retaliation

[52] The complainant argued that the respondent retaliated against him by serving him

in June 2021 with five additional conduct complaints, and by advising him that he could

not serve as a principal to an articling student. The complainant alleged that by June 2021

he had settled all previous outstanding conduct proceedings and that the respondent

waited to serve him with the new conduct complaints until after that settlement was

complete. He also argued that the delay in informing him, his firm, and the articling student

about the ineligibility to be a principal caused prejudice to all three.

[53] The Director did not accept this allegation as a new complaint or formally amend

the Complaint. Her dismissal decision did not address the retaliation allegation.

Accordingly, it is unclear whether I can consider this allegation. However, assuming that

the retaliation allegation forms part of the Complaint, I would dismiss it in any event.

[54] Section 10 of the Act prohibits conduct that retaliates against a person for making

or participating in a human rights complaint process. In Walsh v Mobil Oil, the Alberta

Court of Appeal concluded that the test for retaliation is composed of two parts:²³

1. whether there is a link between the alleged conduct and any of the actions in s.

10(1); and

2. whether the alleged conduct was a deliberate response to one of the actions in s.

10(1).

[55]

I do not directly apply this test here because I am not making findings of fact or

mixed fact and law like the Tribunal does, but I am mindful of the test that the Tribunal will

²³Walsh v Mobil Oil Canada, 2008 ABCA 268, at paras 80-81

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ultimately apply if this matter were to go to hearing. There must be a reasonable basis in

the evidence to proceed on both questions, including first whether there is a link between

the alleged conduct and the human rights Complaint and second whether the alleged

conduct was a deliberate response to the Complaint.

[56] In Yaschuk v Emerson Electric Canada Limited, the Tribunal described retaliation

under the Act as “a quid pro quo relationship between the action of a complainant and

the conduct of a respondent” and that “the complainant must establish that the conduct

occurred because of the initial Complaint”.²⁴Here, there is nothing linking the new

conduct proceedings to the human rights Complaint. This appears, again, to be a concern

about the respondent acting unfairly, which is not something that I can consider absent

allegations that suggest a breach of this Act.

[57] The complainant offered no evidence or argument to suggest that the timing of

serving new conduct complaints was in any way linked to the human rights Complaint or

that it was a deliberate response to the Complaint. He only asserted that it must be

because it was unfair, in his opinion. This is not enough to create a reasonable basis in

the record to proceed.

Reasonable Apprehension of Bias

[58] The complainant argued that the Director’s decision should be overturned because

there was bias in the Director’s process. The complainant asserted that the Commission

and the respondent are “close”. He did not explain what he meant by this or provide any

particulars. He also alleged bias due to the Director’s dismissal and delay in the process.

Ultimately, the complainant’s argument appears to be that because he did not like the

Director’s decision or process, it must be biased. I disagree.

[59] The test for reasonable apprehension of bias was established in Committee for

Justice and Liberty et al. v. National Energy Board et al.:²⁵

… the apprehension of bias must be a reasonable one, held by reasonable

and right minded persons, applying themselves to the question and

obtaining thereon the required information. In the words of the Court of

Appeal, that test is “what would an informed person, viewing the matter

realistically and practically—and having thought the matter through—

conclude. Would he think that it is more likely than not that Mr. Crowe,

whether consciously or unconsciously, would not decide fairly.”

[60] The onus of establishing a reasonable apprehension of bias is on the party raising

it, in this case the complainant.²⁶Assessing whether there is a reasonable apprehension

²⁴Yaschuk v Emerson Electric Canada Limited, 2022 AHRC 62 at para 170

²⁵Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 SCR 369, 1976

2, at p. 394

²⁶Wewaykum Indian Band v Canada, 2003 SCC 45, at para 59; Gushnowski v Edmonton Police Service,

2020 AHRC 1, at para 11

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Classification: Protected A

of bias is “fundamentally contextual” and must be based “on the facts and context of the

case before the decision‑maker”.²⁷

[61] Normally, it is up to the adjudicator accused of bias to make the determination

herself, and determine if she should recuse herself. In judicial review and other

proceedings, bias arguments arise where there are issues of procedural fairness, and a

lower decision may be overturned if the adjudicator had a reasonable apprehension of

bias. Unlike judicial review, in which the court extends deference to an administrative

decision maker unless there is procedural unfairness, a review under section 26 is a new

process that does not give any deference to the Director; in this de novo assessment, the

Chief Commissioner substitutes her opinion for that of the Director. ²⁸Any procedural

defects at the Director’s level can be corrected here and it is not strictly necessary to

consider if there were procedural defects at the Director’s level.

[62] Even if I could consider procedural fairness before the Director, I would not find a

reasonable apprehension of the bias. Here, the complainant merely asserted bias but did

not provide particulars suggestive of bias. The respondent and the Commission are

different organizations without any overlap in personnel, leadership, funding, or any other

factor.

Adequacy of the Investigation

[63] The complainant also disagreed with the screening process at the Director’s office,

which did not include oral interviews but proceeded solely on written submissions. Again,

this is a de novo process where any previous procedural deficiencies may be corrected.

[64] The Director has the power under section 21 to choose how to proceed with a

complaint including dismissal, conciliation, investigation, or direct referral to the Tribunal.

The Act does not require oral interviews. Similarly, Bylaw 17.3 of the Alberta Human

Rights Commission Bylaws (Bylaws)²⁹provides that a matter can be directly referred to

the Director for screening at any stage in the process. The intent of the legislation and

Bylaws is to provide both a fair and an efficient process. There is nothing inherently unfair

in these circumstances about the absence of oral interviews in the complaint process.

[65] Both parties had the opportunity to provide information, records, argument and to

respond to the arguments and information of the opposing party. I am satisfied that there

is enough information gathered to allow me to perform my screening function.

²⁷Constantinescu v Correctional Service Canada, 2020 CHRT 3 at para 41

²⁸A.D. v Alberta Health Services, 2020 AHRC 49 at para 26

²⁹Alberta Human Rights Commission Bylaws, March 2022

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Classification: Protected A

Order

[66] There is no reasonable basis in the evidence to proceed to a hearing. I uphold the

Director’s decision to dismiss the Complaint.

July 6, 2022

___________________________

Kathryn Oviatt

Chief of the Commission and Tribunals

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Classification: Protected A

Written Submissions

Wilfred Willier, Complainant

Self-represented

Katherine Hensel, Hensel Barristers Professional Corporation

For the Respondent Law Society of Alberta

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Classification: Protected A