A further advantage of an immediate and effective investigation is that it will enable the employer to consider a motion for immediate dismissal.
There may be two possibilities to use this process. The first is to admit liability on a without prejudice basis and make a fair offer to settle. The second is to use the evidence from the investigation to deny liability and seek an order to dismiss the complaint.
Where the employer considers the first approach, it may use the investigative results to assess its liability, the damages sustained and allow for a for and reasonable settlement offer to be made.
The Alberta statute allows for a dismissal of the human rights complaint in this circumstance where such an offer has been declined.
Appeal to Chief of the Commission and Tribunals
26(1) The complainant may, not later than 30 days after receiving notice of dismissal of the complaint under section 21, by notice in writing to the Commission request a review of the director’s decision by the Chief of the Commission and Tribunals.
(2) The Commission shall serve a copy of a notice requesting a review referred to in subsection (1) on the person against whom the complaint was made.
(3) The Chief of the Commission and Tribunals shall
(a) review the record of the director’s decision and decide whether
(i) the complaint should have been dismissed, or
(ii) the proposed settlement was fair and reasonable,
as the case may be, and
(b) forthwith serve notice of the decision of the Chief of the Commission and Tribunals on the complainant and the person against whom the complaint was made.
(4) The Chief of the Commission and Tribunals may delegate the functions, powers and duties set out in subsection (3) to another member of the Commission.
A good example of the application is the 2024 decision of the Tribunal in Darryl Simms v Imperial Oil Limited.
The company had made a settlement offer of $25,000 for injured feelings and $55,000 for lost income. This was regarded as one meeting the test of a “fair and reasonable offer” allowing the case to be dismissed. This could not have been done without a proper prior investigation.
The analysis was as follows:
The threshold assessment of merit is low and I am given wide latitude.[4] I am expected to use my experience and common sense[5] to evaluate the quality of the information gathered, while remaining mindful of the role of the Tribunal at hearing to weigh evidence and make findings of fact.[6] The test to determine whether a complaint should have been dismissed under s. 26(3)(a)(i) is whether there is a reasonable prospect of success if the matter was referred to a Tribunal.
[14] Where the complainant has refused to accept a fair and reasonable settlement offer[7] my role is not to determine whether the complaint would have a reasonable prospect of success at Tribunal, but instead to review the record, and given the allegations and information to support those allegations, consider whether the proposed settlement was fair and reasonable.
[15] In an earlier decision, the Tribunal addressed this issue and found, “To be reasonable, an offer does not have to include all the remedies the complainant is seeking or include the highest award a complainant may be awarded at the Tribunal.”[8]
The same section of the Act will allow the employer to seek dismissal of the complaint where it can show that the complaint shows no reasonable chance of success. Again, a prompt and careful investigation will provide the factual support necessary for such an application. Such a successful application was made recently by the employer in Saforo v Subway (Fort McMurray) See also Glazyrina v AIMCo.
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