The Gatekeeper: Alberta
Alberta provides a good example of the role of the Commission in denying or permitting a complaint to proceed to hearing.
It is the Director’s initial decision as to whether the complaint should proceed to hearing or be dismissed.
The Chief of the Commission and Tribunals, upon such a request, will then review the case and determine whether the case should have been dismissed. The Chief is allowed by the statute to delegate this review to a member of the Commission.
The function of the Chief is to make a fresh assessment on the merits. It is not a matter of deferring to a reasonableness test.1
The Human Rights Act was amended in December of 2021. Cases should be read with the impact of the revisions at hand.
Prior to this alteration in the statute, the case was to be dismissed only if the Director considered the case to be without merit. The test was then stated by the Court of Appeal to be as follows: 2
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.
The Court of Appeal later expanded on this issue by noting that the Chief could consider evidence gathered during the investigation and assess the quality of this evidence. 3
The threshold test of a “reasonable basis” is “low and given wide latitude”. 4
The revisions to the statute now allow the Director to dismiss the complaint if it “has been, will be or should be more appropriately dealt with in another forum.
The decision of the “Chief” may then be subject to a judicial review.