Human Rights Commission Hears Case Without Viva Voce Evidence
December 1, 2022
For the layperson, the difference between appearing before a court or a tribunal/commission, such as the Alberta Human Rights Commission, might not seem all that significant. Of course, the setting for a hearing before a judge or a panel of judges typically takes place in a courtroom; In contrast, commission hearings can be heard in various venues, but there are other differences. One of the most notable differences is that Commissions may be less strict in what they allow admitted as evidence. A recent decision from the Alberta Human Rights Commission illustrates this and provides an example of when the Commission might issue a ruling even if the complainant, as in this case, has unfortunately passed away.
Complainant says she was terminated due to health issues
The facts leading to the hearing began when the complainant (“JLD”) filed a complaint alleging her employer (“the employer”) had discriminated against her contrary to section 7 of the Alberta Human Rights Act, which prohibits discrimination on the grounds of a physical disability. She filed her complaint on June 15, 2015. While the decision doesn’t explicitly state so, it appears that the matter did not move forward for at least five years. Tragically, JLD passed away in November 2020, but her brother, the estate executor, advanced the complaint on her behalf.
The facts provided by JLD while she was an alive state that she was hired by the employer in June 2014. She was subject to a performance review in September of that year, and she was rated as exceeding expectations. Later that fall, she was admitted to the hospital following the aggravation of her chronic asthma condition.
About two weeks later, the employer terminated JLD’s employment. The employer stated that she had been placed on “medical layoff.”
The Commission was tasked with determining whether there was prima facie discrimination. The 3-part test used to determine this was established by the Supreme Court of Canada in a decision referred to as Moore. The test requires the following:
- The complainant has a characteristic that is protected from discrimination;
- The complainant has experienced an adverse impact; and
- The protected characteristic was a factor in the adverse impact.
If prima facie discrimination is found, the onus then falls to the respondent (in this case, the employer) to provide a “reasonable, non-discriminatory explanation for its actions.”
Hearing goes ahead despite lack of submissions
One of the factors leading up to the hearing that made this decision so interesting is that the employer did not provide any written submissions, and the Commission would have to rely almost entirely on those provided by JLD before her passing.
The Commission stated that while there was a lack of viva voce evidence (Latin for “by word of mouth” and legally means testimony delivered in person), the employee’s termination was still to be heard in detail. One of the reasons the Commission decided to issue a ruling on the matter despite not being able to hear directly from JLD is that the employer had been provided with opportunities to respond but chose not to.
In addition to JLD’s affidavit, her brother also provided one in support of her. Her brother’s affidavit stated that she suffered a serious relapse in her asthma in the fall of 2014, requiring hospitalization. Her brother was her emergency contact, and the hospital made him aware of her admission. She later told her brother that she was terminated due to her asthma.
The Commission referred to JLD’s 90-day performance review, which she received shortly before she was terminated. In addition to noting that the comments on her work were positive, the Commission zeroed in on a comment which stated JLD “exceeds expectations, however – must improve own personal issues both health & financial example towing personal vehicles not a problem PSA should have to deal with. Will approve $1/hr raise.”
The Commission stated that an employee’s health should not be discussed in a performance review. The Commission found that there was a link between the negative comments in her performance review and her disability. The Commission also called attention to an email the employer sent to JLD when alerted about her hospitalization. It said,
“Your past health issues are too much for us to handle, you have been off work many weeks in total, and it is impacting our performance. Your personal performance when you are here has been great. However, your preexisting conditions were held from us at the time of hiring, and we never know when you will be here from one day to the next. You just 10 days ago said you would keep me in the loop every couple days and I haven’t even heard from you. For that reason, we are letting you go.”
Further emails indicated that JLD did not believe she could have been laid off while at the same time having a note supporting medical leave from a doctor.
Was the employee discriminated against?
The Commission had no trouble finding that a prima facie case of discrimination had been established. At this point, the onus failed the employer to provide a reasonable and non-discriminatory explanation for its actions.
The employer did not participate in the hearing, and the court found no information suggesting it had tried to accommodate the employee’s medical condition. Instead, the evidence showed the employer was frustrated with the time the employee had to be away from work due to her medical condition. Because of this, the Commission determined the employer did not accommodate JLD to the point of undue hardship and had, in fact, not accommodated her at all. Based on this, the Committee ruled that the employer violated section 7 of the Act by terminating JLD due to her physical disability.
HMC Lawyers helps employees and employers navigate human rights in the workplace
The skilled and experienced employment law team at HMC Lawyers routinely works with both employers and employees in legal matters related to the workplace, including violations of human rights legislation. If you are an employee who has faced harassment or discrimination or if you’re an employee potentially facing a claim related to the Alberta Human Rights Act, please don’t hesitate to contact us online or by phone at 1-800-480-3534.