In its recent decision in Kelly Sundberg v. Mount Royal University, the Alberta Human Rights Tribunal confirmed the dismissal of a disability-based discrimination complaint arising from an academic promotion process. The decision provides essential guidance on the limits of human rights jurisdiction in employment disputes governed by collective agreements, the evidentiary threshold at the screening stage, and the distinction between procedural concerns and discriminatory conduct.

Mount Royal University, the respondent in this matter, was successfully represented in this matter by Christin Elawny of Getz Collins and Associates.

At its core, the decision reinforces a recurring principle in Alberta human rights law: where employment disputes are subject to a collective agreement with an established grievance and arbitration framework, the human rights process is not a parallel appeal mechanism. Absent evidence that a protected ground was a factor in the adverse treatment, or that the grievance process itself was discriminatory, complaints will not proceed beyond screening.

Complaint and Screening Decision Based on Allegation of Discrimination Due to Disability

The complainant, at the time an Associate Professor at Mount Royal University, alleged discrimination on the grounds of physical and mental disability under section 7 of the Alberta Human Rights Act. The complaint arose after the University Tenure and Promotion Committee (UTPC) denied his application for promotion to the rank of Professor.

The complainant further alleged retaliation under section 10 of the Act, asserting that materials from his human rights complaint were improperly introduced during an unrelated arbitration proceeding.

The Director of the Alberta Human Rights Commission dismissed both complaints at the screening stage. The complainant sought a review under section 26 of the Act. After conducting a fresh assessment of the record, the Tribunal upheld the Director’s decision, concluding that the complaint had no reasonable prospect of success.

The Academic Promotion Process at Core of Complaint

A central feature of the Tribunal’s analysis was the structure of the academic promotion process itself. Promotion decisions at Mount Royal University are governed by a collective agreement negotiated with the Mount Royal Faculty Association. That agreement establishes a multi-stage process involving external reviewers, internal committees, and a final decision by the UTPC.

Importantly, the initial Promotion Committee (different than the UTPC) does not make the final decision. Its role is advisory, producing draft and final recommendations that are subject to review and response by the candidate before the full record is forwarded to the UTPC.

This distinction proved decisive. The Tribunal emphasized that alleged deficiencies or problematic language at an intermediate stage of the process do not automatically taint the ultimate decision, particularly where those issues are identified, corrected, and addressed before the final decision-maker becomes involved.

External Reviewer Comments and Allegations of Disability Discrimination

The factual foundation of the discrimination allegation rested on a comment made by an external reviewer during the first stage of the promotion process. The reviewer queried whether the complainant’s writing might be affected by a disability, referencing the complainant’s own disclosure of dyslexia in his promotion dossier.

That comment was included in a draft recommendation prepared by the Promotion Committee. The complainant objected, asserting that the inclusion of the comment was discriminatory and had influenced the committee’s assessment of his candidacy.

The Tribunal accepted that the complainant had a protected characteristic (dyslexia) and that denial of promotion constituted an adverse impact. However, the analysis did not end there. To establish a prima facie case of discrimination, the complainant was required to show that his protected characteristic was a factor in the adverse decision.

On the evidence, that causal link could not be established.

Corrective Steps and the Absence of Discriminatory Impact

A key aspect of the Tribunal’s reasoning was the manner in which the Promotion Committee responded once concerns were raised. After meeting with the complainant:

• All references to disability were removed from the draft recommendation;
• The complainant was permitted to submit an edited version of his dossier; and
• The Promotion Committee revised its position and issued a final recommendation in favour of promotion.

These corrective steps were not treated as evidence of discrimination, but rather as evidence that the process functioned as intended. The Tribunal noted that the collective agreement expressly provides candidates with an opportunity to respond to draft recommendations and clarify issues before they are finalized.

Crucially, there was no evidence that the UTPC (the body that ultimately denied the promotion) was aware of the external reviewer’s comment or the earlier draft recommendation that referenced his disability.

The UTPC Decision and the Limits of Human Rights Review

The UTPC’s written reasons for denying promotion focused exclusively on academic criteria, particularly whether the complainant’s scholarly record demonstrated recognition at national and international levels. There was no mention of disability, accommodations, or writing concerns.

The Tribunal underscored an important jurisdictional boundary: it is not the role of the human rights process to assess the correctness of academic judgments or substitute its own view for that of tenure and promotion committees. The Tribunal’s task is limited to determining whether discrimination occurred.

Absent evidence that disability played a role in the UTPC’s decision, the complaint could not proceed. The Tribunal expressly rejected the argument that the promotion process was “tainted” by earlier events that were corrected before the final decision was made.

Retaliation Allegations and the Requirement of Intentional Response

The complainant also alleged retaliation, asserting that the University’s legal counsel had retaliated against him by introducing materials from his human rights complaint during an unrelated arbitration proceeding.

Applying the test set out by the Alberta Court of Appeal in Walsh v. Mobil Oil Canada, the Tribunal found that the complainant failed to establish a link between the protected activity (filing a human rights complaint) and any adverse treatment. There was no evidence that the introduction of the complaint materials was a deliberate or punitive response to the filing of the complaint.

The Tribunal confirmed that mere reference to a human rights complaint in another legal proceeding does not, without more, amount to retaliation under section 10 of the Act.

Deference to the Grievance and Arbitration Process

Beyond the substantive discrimination analysis, the decision is notable for its strong reaffirmation of the “alternative forum” doctrine. Where employment disputes arise under a collective agreement that permits adjudication of human rights issues, grievance arbitration will usually be the more appropriate forum.

The complainant had pursued the grievance process to completion, and the original promotion decision was upheld. The Tribunal emphasized that it has no jurisdiction to revisit or re-litigate matters that were properly before an arbitrator, unless there is a specific allegation that the grievance process itself was discriminatory.

This approach aligns with court decisions favouring efficiency, finality, and the avoidance of inconsistent outcomes between parallel adjudicative processes.

Practical Implications for Universities and Unionized Employers

For universities and other unionized employers, the decision highlights the importance of having robust, transparent procedures and responding promptly and appropriately when concerns are raised during internal processes.

The Tribunal’s analysis suggests that:

• Draft documents and interim comments, on their own, will not ground a human rights complaint if they are corrected before final decisions are made.
• Allowing employees to respond meaningfully to draft assessments can mitigate legal risk.
• Clear separation between advisory committees and final decision-makers strengthens the defensibility of outcomes.
• Human rights complaints are unlikely to succeed where the core dispute is fundamentally about qualifications or performance assessed under a collective agreement.

Clarifying the Threshold at the Screening Stage

Finally, the decision provides a clear illustration of how the “no reasonable prospect of success” threshold operates in practice. While the Tribunal must accept factual allegations as true at the screening stage, those allegations must still be capable of establishing a prima facie case.

Speculation, assumptions, or generalized concerns about fairness are insufficient to support a claim. Evidence must move the complaint out of the realm of conjecture and demonstrate a genuine issue requiring a full hearing.

In Sundberg, the evidentiary record simply did not support an inference that disability discrimination or retaliation had occurred.

Contact Getz Collins and Associates for Top-Tier Human Rights, Labour & Employment Representation in Calgary

Kelly Sundberg v. Mount Royal University is a measured and carefully reasoned decision that reinforces foundational principles of Alberta human rights law. It confirms that human rights legislation is not a vehicle for second-guessing academic or employment decisions made under collective agreements, unless there is evidence of discrimination on a protected ground.

At Getz Collins and Associates, we operate as a forward-thinking law firm built around the needs of our clients. We combine established legal principles with contemporary strategies to deliver tailored and creative solutions for complex human rights, labour, and employment disputes. To book a confidential consultation, please contact us online or call (587) 391-5600.