The Alberta Human Rights Tribunal’s ruling raises questions for expert evidence admissibility
In a case in which Calgary lawyer Stephen Dugandzic is suing the Law Society of Alberta for discrimination, the Alberta Human Rights Commission recently dismissed an interim application to submit questions to the Court of King’s Bench concerning the conduct of a psychologist who appeared as an expert witness for the law society.
Dugandzic was an employment and human rights lawyer who practised between 2013 and 2020. He accused the LSA of deliberately and systematically discriminating against him in breach of s. 9 of the Alberta Human Rights Act and of failing to accommodate his mental and physical health conditions.
Dugandzic claimed that the LSA instructed its psychological expert to execute a forensic psychological assessment with the unauthorized “dual role” of assessing him while simultaneously providing a “complete rebuttal and work product review.” He argued this was a violation of the Alberta psychologists’ practice standards on litigation support.
Pursuant to s. 31 of the Alberta Human Rights Act, Dugandzic asked the tribunal to submit eight questions to the court, including an inquiry into “the plain reading and interpretation of the College of Alberta Psychologists Psychological Services for Litigation Support Including Work Product Review/Critique practice guideline.” Also included among the questions was whether the law society’s expert performed a “simultaneous dual role” and whether that violates a “plain and ordinary reading of the practice guideline.” The tribunal rejected Dugandzic’s request.
“It's a rather shocking result, given the fact that it departs from several well-established principles of law concerning the admissibility of expert evidence, both from the Supreme Court of Canada and at the appellate level from across the country,” says Dugandzic.
“The precedent established in this decision is far-reaching,” he says. “A human rights body – charged with enforcing and upholding human rights – ought not be so loosely admitting expert evidence that it knows violates applicable regulatory standards. The prejudice is significant.”
The Law Society of Alberta declined Canadian Lawyer’s request for comment.
Parveen Parmar is a lawyer and human rights advocate and manager of advocacy and capacity building at the John Humphrey Centre for Peace and Human Rights. She agrees that the tribunal’s decision sets an “alarming precedent” and is “completely at odds” with the case law.
“Not even permitting that kind of appeal to be able to strike the expert’s evidence from the case is alarming.”
Parmar says Dugandzic’s “significant uphill battle” at the commission is in line with many other cases with which she had dealt.
She and the John Humphrey Centre carried out two research projects examining the barriers experienced by complainants at the Canadian Human Rights Commission and the Alberta Human Rights Commission. The projects illustrated the mental health strain of navigating the human rights complaint process, she says.
“I don't think the tribunal and the commissions realize the impact of the entire process and how it compounds the trauma that the complainants have experienced.”
First, says Parmar, complainants must come to terms with the fact that they have been discriminated against. Then, they must build their case, engage with the system, and confront their alleged oppressor. The complainant must carry out these tasks without the assistance of “proper mental health resources” and without commission and tribunal members implementing “trauma-informed practices.”
“That really just results in severe mental health impacts.”
In its analysis of the Alberta Human Rights Commission, the John Humphrey Centre identified eight administrative barriers and six legislative barriers. The Centre said the Alberta Human Rights Act’s one-year limitation period was arbitrary and restrictive for those seeking justice and noted that the commission’s staff lacked “lived experience of discrimination, which limits their perspective and understanding of the issues presented by users.” The centre also highlighted the absence of an “internal accountability or internal review mechanism” for users with concerns about treatment by commission staff.
Dugandzic’s case illustrates some of the changes that must occur within the system, says Parmar. The John Humphrey Centre’s research project into the human rights commissions stemmed from the gap in legal services for those seeking remedies for human rights claims.
The Alberta Human Right Commission declined Canadian Lawyer’s request for comment.
Dugandzic experienced two traumatic brain injuries in 2013 and 2014. He has since suffered from severe and chronic post-concussion syndrome and a damaged pituitary gland. He claimed the law society seriously exacerbated his condition.
The LSA said it received three complaints against him from people who had worked or had professional interactions with him but dismissed the complaints in 2020. Dugandzic was subject to two additional complaints, one from the lawyer who worked at his firm and the other from the law society.
Under s. 9 of the Alberta Human Rights Act, “No trade union, employers’ organization or occupational association shall (a) exclude any person from membership in it, (b) expel or suspend any member of it, (c) discriminate against any person or member” due to a variety of protected characteristics including “physical disability” and “mental disability.”
Among Dugandzic’s claimed grounds of discrimination, he said the law society subjected him to “unreasonable and inordinate delay of almost two years, without valid reason.” He sought $10 million from the law society for lost income because of his necessary exit from the legal profession, as well as general damages and costs from medical and psychological treatment.
