The Alberta Court of Appeal and the test for discrimination

Recent decisions by the Supreme Court of Canada and the Alberta Court of Appeal raise uncertainty over determining discrimination in employment
By Jennifer Koshan
|employmentlawtoday.com|Last Updated: 06/25/2013

Earlier this year, the Supreme Court of Canada denied leave to appeal in the case of Wright v College and Assn. of Registered Nurses of Alberta, raising uncertainty over the test for discrimination under human rights legislation, particularly in Alberta. In the Supreme Court’s most recent human rights decision, Moore v. British Columbia (Ministry of Education), the court appeared to return to the traditional prima facie approach to discrimination first set out in the 1985 decision in Ontario Human Rights Commission and O’Malley v Simpsons-Sears.

Yet in Lethbridge Regional Police Service v. Lethbridge Police Assn., the Alberta Court of Appeal declined to cite Moore, and applied a restrictive test for discrimination in the employment context. This approach operated to the detriment of Lester, a probationary police constable whose claim of discrimination was dismissed because the Lethbridge Regional Police Service appeared to have at least some non-discriminatory reasons for not extending his contract, and because there was found to be no evidence of stereotyping or egregious discrimination. The Court of Appeal took a similarly restrictive approach in Wright v. College and Assn. of Registered Nurses of Alberta, in which the Supreme Court declined to grant leave to appeal.

On June 20, 2013, the Supreme Court also denied leave to appeal in the Lethbridge Police Assn case. As is the usual practice, the panel (Justices LeBel, Karakatsanis and Wagner) did not provide reasons for decision. This is an unfortunate development given the need for clarity over the test for discrimination. Until the Supreme Court decides to tackle that issue head on, it is to be hoped that the Court of Appeal will follow the Supreme Court’s direction in Moore, and cease its inclination to impose onerous burdens on human rights claimants.

For more information see:

  • Lethbridge Regional Police Service v. Lethbridge Police Assn., 2013 CarswellAlta 197, leave to appeal denied, June 20, 2013, Supreme Court of Canada.
  • Moore v. British Columbia (Ministry of Education), 2012 CarswellBC 3446 (S.C.C.).
  • Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CarswellOnt 887 (S.C.C.).
  • Wright v. College and Assn. of Registered Nurses of Alberta, 2012 CarswellAlta 1528 (Alta. C.A.).
  • Under the Influence: The Alberta Court of Appeal and the Test for Discrimination

Jennifer Koshan is an associate professor with the University of Calgary Faculty of Law and a member of the Alberta Bar. Her teaching and research interests are in the areas of constitutional law, equality and human rights, state responses to violence, legal theory, and public interest advocacy. She can be reached at koshan@ucalgary.ca. This article originally appeared on the University of Calgary Faculty of Law's blog, Ablawg (http://ablawg.ca/).

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