The Applicant sought judicial review of the Alberta Human Rights and Citizenship Commission’s refusal to accept a complaint. The court applied a standard of correctness. The Commission’s Certificate was correct and held that the Commission is without jurisdiction to deal with the complaint, which did not concern any ground of discrimination covered by the Act.

Administrative law – Human rights complaints – Jurisdiction – Access to child’s medical records by a divorced parent – Privative clauses – Boards and tribunals – Breach of procedural fairness – Judicial review – Standard of review – Correctness – Jurisdiction of court

G.S. v. Alberta (Human Rights and Citizenship Commission), [2002] A.J. No. 980, Alberta Queen’s Bench, July 26, 2002, Mason J.

The Applicant sought judicial review of a decision of the Alberta Human Rights and Citizenship Commission (the “Commission”). The Applicant claimed that he had the right to access information respecting the health of his son pursuant to section 16(5) of the Divorce Act, R.S.C. 1985, (2nd Supp.), c. 3 and that to deny him access infringed his rights under the Alberta Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, (the “Act”).

The Commission had determined that it did not have the jurisdiction to deal with the complaint, as “child custody” is not a ground of discrimination covered by the Act. The Chief Commissioner advised the Applicant to seek redress in the court if he could not obtain permission from the custodial parent to access his son’s medical information.

The Director’s dismissal of the Applicant’s complaint breached the rules of procedural fairness, as he failed to provide the Applicant with all submissions made in the matter. However, the Chief Commissioner cured the Director’s breach by providing the benefit of every procedural safeguard to the Applicant. No other allegations of procedural unfairness were substantiated.

The proper standard of review of the Commission’s decision is correctness. There is no “full” privative clause in the Act; however, there is a “final and binding” privative clause suggesting some deference. The Commissioner has no specific expertise on questions of law and thus such decisions merit minimal or no deference. This matter does not involve a typically polycentric balancing of interests, which also suggests less deference. The Applicant had put a question of law involving the issues of jurisdiction, statutory interpretation and interplay of federal and provincial legislation before the Commission. The decision merited little to no deference. The applicable standard of review in the circumstances was that of correctness.

The Commission was correct that it lacked the jurisdiction to deal with the claim brought by the Applicant. The proper forum for determining the questions of law raised was the Court. The application for certiorari and mandamus was dismissed.

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