The Alberta Court of Appeal has dismissed an appeal by a security guard who alleged that his former employer, Paladin Security Group, retaliated against him contrary to the Alberta Human Rights Act after terminating his employment.
The court upheld previous decisions by the Alberta Human Rights Commission and a judicial review that found insufficient evidence to support O.S.’s claims of retaliation and discrimination.
The guard — O.S. — had filed two complaints with the Alberta Human Rights Commission against Paladin. The first complaint concerned his termination, while the second, which was the subject of the appeal, involved an alleged retaliatory incident at a Fort McMurray mall.
Background of the first complaint
O.S. was employed as a probationary part-time security guard by Paladin, working intermittently over several months. On September 6, 2018, he agreed to work shifts on the following two days. However, on September 7, he requested to be excused from his shift due to religious obligations stemming from the death of an ancestral king in Nigeria. As a chieftain, he claimed that his religious rites prevented him from working that day.
According to O.S., he informed Paladin’s representatives of his need for religious accommodation during a meeting on September 7. Despite this, his employment was terminated. He alleged that this amounted to discrimination based on religious belief and colour, contrary to section 7 of the Alberta Human Rights Act.
Paladin disputed his account, stating that O.S. did not mention any need for religious accommodation during the meeting. They asserted that his termination was due to work performance issues, supported by statements from two of their representatives.
Details of the second complaint
The second complaint arose from an incident on November 16, 2018, at a public mall. O.S. claimed that while visiting a mobile phone kiosk to inquire about offers and pay a bill, a security guard employed by Paladin asked him to leave because he had spent considerable time talking with a sales representative. He alleged that Paladin instructed the security guard to remove him in retaliation for his earlier threat to report the company to “appropriate authorities,” by which he meant a human rights complaint.
At the time of the mall incident, O.S. had not yet filed his first complaint; it was submitted six months later, in May 2019. He argued that Paladin’s actions violated section 10(1)(a) of the Act, which prohibits retaliation against a person who “has made or attempted to make a complaint under this Act.” Additionally, he claimed the removal constituted discrimination based on race, colour, and place of origin, contrary to section 4 of the Act.
Paladin denied these allegations, stating that the security guard had a legitimate reason to remove O.S. from the mall. They maintained that neither the security guard nor Paladin’s management was aware of any potential human rights complaint at the time. To support their position, Paladin provided incident reports from the security guard, the sales representative, and her colleague.
Incident reports and evidence
The security guard’s report indicated he had been informed that O.S. was making the sales representative feel unsafe and had previously made unwanted personal advances toward her. He observed O.S. at the kiosk for over an hour and, after confirming the sales representative felt uncomfortable, asked O.S. to leave, stating he was loitering.
The sales representative and her colleague corroborated this account. They reported that in October 2018, O.S. had asked for the sales representative’s phone number and offered to wait for her after work, causing her discomfort and necessitating security escort. On November 16, O.S. returned and continued to engage in behaviour that made her uncomfortable, leading them to involve the security guard.
When presented with this evidence, O.S. denied making unwanted advances and asserted that the incident reports were fraudulent. He claimed that the security guard and sales representative had colluded to fabricate a reason for his removal.
Decisions of the Human Rights Commission and judicial review
A human rights officer investigated both complaints and recommended their dismissal. The Director agreed, summarily dismissing them on the grounds they were without merit. O.S. requested a review by a Commissioner under section 26 of the Act, but the Commissioner also dismissed the complaints, stating there was no reasonable basis to proceed to a tribunal hearing.
Regarding the second complaint, the Commissioner found no reasonable basis to conclude that Paladin retaliated against O.S. for a threatened human rights complaint. The Commissioner noted that Paladin was likely unaware that “appropriate authorities” referred to such a complaint and that the security guard had legitimate reasons for his actions based on the incident reports.
O.S. sought a judicial review of the Commissioner’s decision. The chambers judge upheld the dismissal of the second complaint, finding the Commissioner’s decision reasonable. The judge noted that the Commissioner’s role is to determine whether a complaint has sufficient merit to proceed, not to resolve credibility contests unless the evidence “clearly points” to one version over another.
Appeal to the Court of Appeal
On appeal, O.S. argued that the Commissioner misapprehended his retaliation complaint, improperly assessed credibility, and that there was a reasonable apprehension of bias due to the Director extending Paladin’s response deadline.
The Court of Appeal rejected these arguments. The court found that the Commissioner accurately understood the basis of the complaint and that dismissing it was reasonable given the speculative nature of O.S.’s allegations. The court stated, “A sincere belief alone is not evidence,” emphasizing that the Commissioner’s decision was based on the lack of concrete evidence linking Paladin’s actions to retaliation or discrimination.
Regarding the alleged bias, the court noted that the Director has discretion to extend deadlines and that doing so does not indicate undue favouritism. The court concluded there was no reasonable apprehension of bias affecting the Commissioner’s decision.
For more information, see Shodunke v Alberta (Human Rights Commission), 2024 ABCA 348 (CanLII).
