Citation: Willier v Law Society of Alberta, 2022 AHRC 73  
Wilfred Willier  
- and -  
Law Society of Alberta  
Chief of the Commission and Tribunals:  
Decision Date:  
Kathryn Oviatt  
July 6, 2022  
File Number:  
Classification: Protected A  
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).1 I uphold the Director’s  
decision to dismiss the complaint.  
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.  
The issue before me is whether the Complaint should have been dismissed.  
The Complaint and Response  
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  
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  
1 Alberta Human Rights Act, RSA 2000, c A-25.5  
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  
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  
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  
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.  
The Screening Function under section 26  
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:  
Classification: Protected A  
(3) The Chief of the Commission and Tribunals shall  
(a) review the record of the director’s decision and decide whether  
the complaint should have been dismissed  
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.4 The 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  
2 A.D. v Alberta Health Services, 2020 AHRC 49 at para 26  
3 Mis v Alberta Human Rights Commission, 2001 ABCA 212 (Mis) at para 8  
4 Economic Development Edmonton v Wong, 2005 ABCA 278  
5 Wong at paras 16 20  
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.6 I may assess credibility, consider new evidence, and screen the matters to be  
referred for a full hearing.7 I am expected to use my experience and common sense8 to  
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.10 In 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  
6 Mis at para 9  
7 Economic Development v Wong 2005 ABCA 278 at paras 16 - 20  
8 Mis at para 9  
9 Economic Development v Wong at para, 17 and 20  
10 Legal Profession Act, R.S.A. 2000, c. L-8  
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  
c. The Commission may make further inquiries if it feels further information is  
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  
[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.  
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  
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.  
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  
[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.11 Accordingly, 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.12 The 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.  
11 Legal Profession Act, R.S.A. 2000, c. L-8, ss. 49 and 53  
12 Morin v TransAlta Utilities Corporation, 2017 ABQB 409 at para 51  
Classification: Protected A  
[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  
Classification: Protected A  
discrimination”.13 The 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  
13 Canadian National Railway Co. v Canada (Canadian Human Rights Commission), 1987 109  
(SCC), [1987] 1 SCR 1114 (Action Travail des Femmes), at pages 1138-9  
14 Action Travail des Femmes at page 1143  
15 Association of Ontario Midwives v Ontario (Health and Long-Term Care), 2014 HRTO 1370 ()  
(Ontario Midwives) at para 37  
16 Action Travail des Femmes  
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.17 On 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  
17 Ahmad v CF Chemicals Ltd., 2019 AHRC 5, at para 187  
18 British Columbia v Crockford, 2006 BCCA 360, at para 49  
19 Lasani v Ontario (Ministry of Community and Social Services) (No. 2), 1993 16433 (ON HRT)  
(Lasani) at para 49  
20 Ahmad at para 188  
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.21 That 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.22 Contrary 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  
21 Radek v Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 at  
paras 504, 509, 513  
22 Moore v The Law Society of British Columbia, 2018 BCSC 1084 at para 121  
Classification: Protected A  
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.  
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.  
[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.  
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  
23 Walsh v Mobil Oil Canada, 2008 ABCA 268, at paras 80-81  
Classification: Protected A  
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”.24 Here, 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 practicallyand 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.26 Assessing whether there is a reasonable apprehension  
24 Yaschuk v Emerson Electric Canada Limited, 2022 AHRC 62 at para 170  
25 Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 SCR 369, 1976  
2, at p. 394  
26 Wewaykum Indian Band v Canada, 2003 SCC 45, at para 59; Gushnowski v Edmonton Police Service,  
2020 AHRC 1, at para 11  
Classification: Protected A  
of bias is “fundamentally contextual” and must be based “on the facts and context of the  
case before the decisionmaker”.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. 28 Any 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  
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)29 provides 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.  
27 Constantinescu v Correctional Service Canada, 2020 CHRT 3 at para 41  
28 A.D. v Alberta Health Services, 2020 AHRC 49 at para 26  
29 Alberta Human Rights Commission Bylaws, March 2022  
Classification: Protected A  
[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  
Classification: Protected A  
Written Submissions  
Wilfred Willier, Complainant  
Katherine Hensel, Hensel Barristers Professional Corporation  
For the Respondent Law Society of Alberta  
Classification: Protected A  

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