Correctness Review, Quasi-Constitutional Questions and Human Rights: United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194
Yesterday, the Supreme Court of Canada dismissed the application for leave to appeal in United Nurses of Alberta v Alberta Health Services, 2021 ABCA 194. As I was retained to act for AHS on the leave application, I considered it was inappropriate to comment on the decision of the Alberta Court of Appeal. With the appellate litigation now at an end (though the underlying matter now goes back to an arbitration board for a fresh hearing), it is worth highlighting this important decision.
This is a case about family status discrimination. A nurse whose shifts were changed when AHS altered its schedule transferred to casual status employment, with a corresponding loss of benefits, as a result of the alteration. Having formed the view that she could not reconcile the altered schedule with her family commitments, she lodged a grievance under a collective agreement, arguing that the failure to accommodate her by maintaining her previous shifts amounted to discrimination on the basis of family status.
A majority of the arbitration board dismissed the grievance: it applied the ‘self-accommodation requirement’ set out by the Federal Court of Appeal in Canada (Attorney General) v Johnstone, 2014 FCA 110, pursuant to which a grievor claiming family status discrimination has to demonstrate that they made reasonable efforts, which did not succeed, to reconcile their professional commitments with their family obligations (see also Envirocon Environmental Services, ULC v Suen, 2019 BCCA 46). As the grievor could not make out this demonstration, she was unable to make out a prima facie case of discrimination on the basis of family status and the grievance was dismissed. The minority of the board concluded that the Johnstone test was not good law in Alberta because the obiter comments in SMS Equipment Inc v Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162 were intended to provide binding guidance on family status discrimination. For the minority, with no need to show ‘self-accommodation’, the grievor had made out a prima facie case and the burden shifted to the employer to demonstrate that it had made reasonable efforts to accommodate the grievor. Finding that the employer had not made reasonable efforts, the minority came down on the side of the grievor.
On judicial review (pre-Vavilov), Hollins J found that the board’s decision was unreasonable, because it departed from the obiter in SMS Equipment: United Nurses of Alberta v Alberta Health Services, 2019 ABQB 255.
The Court of Appeal went further, applying the correctness standard to determine whether or not a ‘self-accommodation requirement’ forms part of the prima facie case for discrimination on the basis of family status. For the Court of Appeal, both the articulation and application of the test must be “proper”, as they are each “essential to give effect to the recognized, fundamental human right to be free from discrimination, including on the basis of family status”, which is included in quasi-constitutional legislation (at para. 55). Intervention on the correctness standard was required to bring “certainty and uniformity to a core aspect of fundamental human rights law” (at para. 80). The Court of Appeal buttressed its analysis by suggesting that labour arbitrators are perhaps not as expert as human rights tribunals in the area of discrimination law (at para. 58).
In following such an approach, the Court of Appeal traversed a well-trodden path in Canadian administrative law, using language which recalls decisions of the 1990s reserving human rights concepts to courts. But is such an approach appropriate today? Vavilov teaches that expertise is no longer a factor in selecting the standard of review and that the public importance of a question does not turn it into a question of general law of central importance to the legal system.
Does the quasi-constitutional status of human rights law make much of a difference? The two hallmarks of quasi-constitutional legislation are that it is protected from implied repeal and to be given a “large and liberal interpretation”. But all legislation is now to be given a “large and liberal interpretation” consistent with legislative intent: quasi-constitutional legislation is no different in that regard. And to the extent that it is protected from implied repeal, this indicates simply that its subject matter is of great public importance — but per Vavilov, great public importance does not make a question of general law one of central importance to the legal system.
Rather, a “constitutional dimension” is required (Bank of Montreal v Li, 2020 FCA 22 , at para. 28). Human rights laws, whilst of great public importance, are nonetheless statutory creations. There is no constitutional dimension which requires correctness review in all circumstances.
The fact that human rights statutes might be interpreted by different bodies does not change the analysis, in my view. To begin with, these statutory creations are provincial and federal in nature: they are not pan-Canadian concepts; there is no inherent need for Alberta and Ontario, for example, to maintain precisely the same anti-discrimination provisions. Variation between provinces is part of life in a federation. Moreover, different decision-makers might legitimately interpret the concepts differently: the fact that the courts can intervene in situations of “overlapping jurisdiction” (see, e.g., here) already ensures that differentiated decision-making does not undermine the coherence of the legal system.
For the Court of Appeal, the possibility of differentiation was an argument in favour of correctness review:
Further, as amply illustrated in this case, manifest uncertainties arise when self-accommodation considerations are considered in the wrong place. In order to establishdiscrimination, to what extent must an employee search for reasonable childcare alternatives? What standard is to be applied to determine whether the employee has satisfied this obligation (cost of childcare; hardship on family members; level of inconvenience on friends/neighbours)? Does information about socio-economic status, marital status, geographical location, culture, religious or other group associations become relevant? Does the health, well-being, employment situation or socio-economic status of extended family members who might reasonably be capable of providing childcare become relevant? If the care in question is instead eldercare, then what considerations and proof must the complainant provide? Is it the same or different? What information is the employer entitled to demand to satisfy itself that the employee has fulfilled this self-accommodation obligation (at para. 83).
The Court of Appeal observed that other courts and administrative decision-makers are “divided” on how to answer them (at para. 89) – so too are academics (at paras. 91-92). But the Court of Appeal’s analysis suggests that each of these questions – regardless of the level of granularity, regardless of how often front-line administrative decision-makers address them – can only be answered authoritatively by the courts. Is this appropriate, given the highly context-sensitive and rapidly evolving nature of these questions and the evidence on which answers to them will be based? Experience teaches that significant judicial humility is required before concluding that the correctness standard must be applied, setting courts’ interpretations of human rights law in stone. And the Supreme Court was quite clear in Vavilov that perceived “persistent discord”, in and of itself, is not a basis for applying the correctness standard, not least because decision-makers themselves have ample tools to avoid and respond to discord as and when it arises.
Although I am not persuaded by the Court of Appeal’s analysis, it is undoubtedly the most thorough and interesting consideration of the implications of Vavilov for human rights concepts specifically and quasi-constitutional statutes generally.
As for the contested question of the components of a prima facie case of family status discrimination, uncertainty will continue, as the Alberta Court of Appeal has now taken a different path to the British Columbia Court of Appeal and the Federal Court of Appeal. Anyone interested in pondering the ultimate fate of family status discrimination would do well to consult the excellent article by Vipond and Oliphant, “Family Status Discrimination: Caregiving and the Prima Facie Case” (2020) 56 Osgoode Hall Law Journal 564 (available here).
This content has been updated on January 28, 2022 at 17:45.