In October of 2009, the complainant, Mr. Buterman, filed a complaint with the Alberta Human Rights Commission alleging that the School Board had discriminated against him in its Decision to remove him from the substitute teacher list, and from consideration for permanent positions with the School Board. The Director of the Alberta Human Rights Commission dismissed the complaint on May 20, 2011. The complainant then appealed to the Chief of the Commission, who overturned the Director’s Decision and directed that a tribunal hear the complaint on July 16, 2012. The School Board filed an Application for Judicial Review seeking, inter alia, an Order directing that the Director determine whether a settlement had been reached or the complainant had rejected a reasonable settlement. Following the Chief’s Decision on July 16, 2012, the School Board wrote both the Director and the Chief asking that the Director consider the settlement question. Neither the Director nor the Chief found it appropriate to consider that issue at that juncture.

The Court began by addressing standing and found that the Director has standing to argue issues concerning his role in the administration of the Act and, in particular, whether he was required to consider settlement issues when dismissing a complaint, and whether the School Board’s Application was filed within the six month time limit prescribed by the Rules.

The Director applied to strike the Originating Application for Judicial Review as against the Director on the basis that it was brought outside the prescribed time limit, and the Director was functus officio. Greckol J. expressed doubt as to whether an Application to strike under Rule 3.68(1)(a) should be available in the case of judicial review, particularly given the primacy of cost effectiveness and efficiency set forth in Rule 1.22 (b). Notwithstanding these doubts, the Court determined that it could dispose of the Application before it on its merits.

In assessing the Application to strike the Originating Application for Judicial Review on the basis that it was out of time, the Court examined each aspect of Rule 3.68(2). Greckol J. affirmed that the test for striking out a pleading remains whether, assuming the facts in the pleading can be proved, it is plain and obvious that the pleading discloses no cause of action. Greckol J. held that the question of whether the time limit for filing a judicial review had passed was one concerning the availability of defences, and not grounds for striking a pleading. Similarly, the concern that the Director was functus officio engaged questions of mixed fact and law, and it was consequently not possible to determine from the pleadings whether the claim could be struck on that basis.

The Court went on to find that it was not plain and obvious that the pleading constituted an abuse of process or was vexatious or frivolous in any way, nor that any other grounds under Rule 3.68(2)(a) applied.

The School Board also brought an Application seeking an Order that the Chief file an expanded record, and that the Director file a record. Justice Greckol then turned to the School Board’s Application for a further and better record. The Court held, at para. 82, that:

… what is required under Rule 3.18(2) is the written record of the decision, the reasons given for the decision, the originating document (here, the complaint), the evidence and exhibits filed with the Chief, and anything else relevant to the decision in the possession of the person or body …

Noting that there were no concerns of bias or abuse of process raised in the instant Application, the Court found that the Chief had included in the record all things relevant that were in his possession when he made his Decision. The Application by the School Board for an Order requiring the Chief to file a further and better certified record was dismissed. In light of the Court’s determination that judicial review might be available against the Director, the Application for the Director to produce a record was granted.